COURT
OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-04-496-CR
RODERICK
DUANE THOMPSON
APPELLANT
A/K/A
RODERICK THOMPSON
V.
THE
STATE OF TEXAS
STATE
------------
FROM THE 372ND DISTRICT COURT OF TARRANT
COUNTY
MEMORANDUM
OPINION
Appellant
Roderick Duane Thompson appeals his conviction for sexual assault. The grand jury indicted Appellant,
charging him with aggravated sexual assault and the lesser included offense of
sexual assault. After convicting
him of the lesser included offense of sexual assault, the jury assessed his
punishment at twelve years=
confinement. The trial court
sentenced Appellant accordingly. In
a single point, Appellant complains that he was deprived of his constitutional
right to effective assistance of counsel.
We affirm.
FACTUAL
BACKGROUND
During
the summer of 2003, Monica Lynn Bernard began having gatherings at her
apartment. The complainant, Luz
Lopez, would attend these gatherings, as well as Ty Cornett, who lived at the
apartment complex. Cornett brought
Appellant to Bernard=s
apartment on approximately two or three occasions. Appellant told Lopez that he was
interested in her on the first visit and asked her for her phone number, but she
told Appellant that she was not interested in having a relationship at the
time. Bernard testified that one
day Appellant bragged about having a gun, stating that he could take care of
things. Because she and Lopez felt uneasy around Appellant, she told Cornett not
to bring Appellant to her apartment anymore.
One
night, Lopez was staying alone at Bernard=s
apartment while Bernard was away in New Mexico. At approximately 10:00 p.m., Cornett and
Appellant knocked on the door, looking for Bernard. Lopez informed them that Bernard was not
home, and refused to allow them into the apartment. Shortly thereafter, Lopez went to sleep
in Bernard=s
bedroom, and she was awakened around 2:00 a.m. to the sound of knocking on the
window. She looked through the
blinds and saw Appellant standing outside.
Appellant
asked Lopez if he could use the phone to call someone to pick him up, so she
handed him the phone through the door.
Appellant then showed Lopez a gun and entered the apartment. He raped her, forcibly penetrating her
vagina with his penis. After he
finished, Appellant told Lopez not to tell anyone because he knew where she
lived and he Awould
go crazy on [her].@ Lopez reported the rape to the police
and subsequently identified Appellant as her attacker.
DISCUSSION
Appellant
contends that he was deprived of his constitutional right to effective
assistance of counsel because his trial counsel failed to object, thereby
forfeiting Appellant=s
right to confront witnesses against him, when the State presented the
complainant=s
accusatory statements that were made to a nurse. He further complains that he received
ineffective assistance of counsel because trial counsel did not object to
extraneous offense evidence, primarily that Appellant bragged about having a gun
and using it to Atake
care of things.@
Finally, he complains that trial counsel failed to request the limiting
instruction to which he was entitled.
Appellant argues that the cumulative effect was prejudicial to the
defense=s
case because the jury was allowed unfettered discretion to consider character
propensity as direct evidence of guilt.
1.
Standard of Review
To
establish ineffective assistance of counsel, appellant must show by a
preponderance of the evidence that his counsel=s
representation fell below the standard of prevailing professional norms and that
there is a reasonable probability that, but for counsel=s
deficiency, the result of the trial would have been different. Strickland v. Washington, 466
U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); Salinas v. State, 163 S.W.3d
734, 740 (Tex. Crim. App. 2005); Mallett v. State, 65 S.W.3d 59, 62-63
(Tex. Crim. App. 2001); Thompson v. State, 9 S.W.3d 808, 812 (Tex.
Crim. App. 1999).
In
evaluating the effectiveness of counsel under the first prong, we look to the
totality of the representation and the particular circumstances of each
case. Thompson, 9 S.W.3d at
813. The issue is whether counsel's
assistance was reasonable under all the circumstances and prevailing
professional norms at the time of the alleged error. See Strickland, 466 U.S. at
688-89, 104 S. Ct. at 2065. Review
of counsel=s
representation is highly deferential, and the reviewing court indulges a strong
presumption that counsel=s
conduct fell within a wide range of reasonable representation. Salinas, 163 S.W.3d at 740;
Mallett, 65 S.W.3d at 63. A
reviewing court will rarely be in a position on direct appeal to fairly evaluate
the merits of an ineffective assistance claim. Thompson, 9 S.W.3d at
813-14. AIn
the majority of cases, the record on direct appeal is undeveloped and cannot
adequately reflect the motives behind trial counsel=s
actions.@ Salinas, 163 S.W.3d at 740
(quoting Mallett, 65 S.W.3d at 63).
To overcome the presumption of reasonable professional assistance,
Aany
allegation of ineffectiveness must be firmly founded in the record, and the
record must affirmatively demonstrate the alleged ineffectiveness. Salinas, 163 S.W.3d at 740
(quoting Thompson, 9 S.W.3d at 813).
The
second prong of Strickland requires a showing that counsel's errors were
so serious that they deprived the defendant of a fair trial, i.e., a trial whose
result is reliable. Id. at
687, 104 S. Ct. at 2064. In other
words, Appellant must show there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding would have been
different. Id. at 694, 104
S. Ct. at 2068. A reasonable
probability is a probability sufficient to undermine confidence in the
outcome. Id. The ultimate focus of our inquiry must
be on the fundamental fairness of the proceeding whose result is being
challenged. Id. at 697, 104
S. Ct. at 2070.
2.
Waiver of Confrontation Clause Objection
Appellant
first complains that his trial counsel provided ineffective assistance because
trial counsel failed to object to an alleged Confrontation Clause
violation. The Sixth Amendment's
Confrontation Clause provides that, A[i]n
all criminal prosecutions, the accused shall enjoy the right . . . to be
confronted with the witnesses against him.@ U.S. Const. amend. VI. This procedural guarantee is applicable
in both federal and state prosecutions.
Pointer v. Texas, 380 U.S. 400, 406, 85 S. Ct. 1065, 1069 (1965).
Appellant relies upon the holding of Crawford v. Washington, wherein the
Supreme Court held that the Confrontation Clause bars the admission of
testimonial statements of a witness who does not appear at trial, unless he is
unavailable to testify and the defendant had a prior opportunity to
cross‑examine him, regardless of whether such statements are deemed reliable by
the trial court. 541 U.S. 36, 59,
124 S. Ct. 1354, 1369 (2004).
Generally, one must timely and specifically object to complained‑of
testimony to preserve error. See
Tex. R. App. P. 33.1.
Appellant
complains that counsel should have objected when the State presented the
complainant=s
accusatory statements made to a nurse in the course of the sexual assault
examination. He complains of the
following testimony that the prosecutor elicited from the examining nurse:
[Cornett
and Appellant] had came to the door at that time and asked her what she was
doing. She said that she was just
relaxing. At that time point they
went away. Around 2:00, 2:30 in the
morning, [Appellant] came back and knocked on the window and asked if he could
use the phone to call a ride home.
She went to the door, opened the door. When she turned back around there was a
gun in her face. He told her to go
inside. He wanted her to go into
bedroom at that time. She said no.
He asked her to be quiet and just cooperate with him. He said he could do it the easy way or
the hard way. He asked her to
undress. She undressed. And he told her he wanted to do it doggy
style. So she bent over the
couch. He put on a condom at that
time, had sex with her. And once he
was finished, he said: See
it=s
not that bad. When he was getting
ready to leave, he asked her not to tell anyone because he knew where she lived
and he would get crazy on her.
We
conclude that the holding in Crawford would not apply to the present
case. Here, the declarant of the
unobjected‑to extrajudicial testimonial statement, Lopez, testified at
trial. In Crawford, the
declarant claimed her spousal privilege and did not testify at trial. Crawford, 541 U.S. at 40, 124 S. Ct.
at 1357. A close reading of
Crawford reveals that its holding applies only when the extrajudicial
testimonial statements of a witness who does not testify at trial are sought to
be admitted. Id. at 59, 124
S. Ct. at 1369. In Crawford,
the Supreme Court stated that Awhen
the declarant appears for cross‑examination at trial, the Confrontation Clause
places no constraints at all on the use of his prior testimonial
statements.@ Id. at 59 n.9, 124 S. Ct. at
1369, n.9. At trial, Lopez
testified and Appellant had the opportunity to and, in fact, did cross-examine
her; therefore, the reasoning of Crawford does not apply. See Crawford v. State, 139 S.W.3d
462, 465 (Tex. App.BDallas
2004, pet. ref'd) (holding that testimonial hearsay was admissible when
declarant testified at trial and was subject to cross‑examination). Because this testimony was not
objectionable in this instance, trial counsel=s
performance was not deficient.
Thus, we hold that trial counsel=s
failure to object in this instance does not constitute ineffective assistance of
counsel.
3.
Failure to Object to and Limit Extraneous Offense Testimony
Appellant
also complains that his trial counsel provided ineffective assistance because he
failed to object to and request a limiting instruction for the extraneous
offense testimony that was admitted at trial. Specifically, Appellant complains about
trial counsel=s
failure to object to Bernard=s
testimony that on some occasions she, Cornett, and Appellant had smoked
marijuana and her testimony that Appellant had bragged about having a gun. He
further attacks trial counsel=s
failure to object when Cornett testified that Appellant said he had a gun. He asserts that trial counsel was
ineffective because he did not seek a limiting instruction as to the limited
purpose of any extraneous offenses when the jury received the court=s
instructions at the close of evidence on guilt/innocence. See Tex. R. Evid. 105(a).
The
State counters that the record is not sufficiently developed for this court to
review Appellant=s
claims. Citing Heiman v.
State, the State contends that the failure to object to extraneous offense
evidence or request a limiting instruction can constitute a plausible trial
strategy. See 923 S.W.2d
622, 626 (Tex. App.BHouston
[1st Dist.] 1995, pet. ref=d). The State argues that trial counsel
probably revisited the testimony about the gun on cross-examination in an
attempt to cast doubt upon the credibility of the witnesses who testified that
Appellant admitted to possessing the weapon.
Extraneous
acts are generally inadmissible at the guilt/innocence stage of a trial. See Tex. R. Evid. 404(b) (stating
that Aevidence
of other crimes, wrongs or acts is not admissible to prove the character of a
person in order to show action in conformity therewith@). A defendant is entitled to be tried on
the accusations made in the State's pleading, and he should not be tried for
some collateral crime or for being a criminal generally. Ex Parte Varelas, 45 S.W.3d 627, 630 (Tex. Crim. App.
2001). The trial court is required
to instruct the jurors about the limits on their use of that extraneous act, if
the defendant so requests.
Id. at 631.
Furthermore,
when the State is permitted to introduce evidence of the defendant's extraneous
acts for a limited purpose, the defendant also has the burden of requesting an
instruction limiting consideration of those acts. Id.; Abdnor v. State, 808
S.W.2d 476, 478 (Tex. Crim. App. 1991).
The trial court errs if it fails to give a limiting instruction when
requested to do so by the defendant.
Varelas, 45 S.W.3d at 631.
A
substantial risk of failure accompanies a claim of ineffective assistance of
counsel on direct appeal because the record is generally undeveloped and cannot
adequately reflect the failings of trial counsel. See Thompson, 9 S.W.3d at 813-14;
McCullough v. State, 116 S.W.3d 86, 92 (Tex. App.CHouston
[14th Dist.] 2001, pet. ref'd.).
Therefore, it is critical that the defendant obtain the necessary record
in the trial court to rebut the Strickland presumption that counsel's
conduct was strategic.
Thompson, 9 S.W.3d at 814; McCullough, 116 S.W.3d at
92. This kind of record is best
developed in a hearing on a motion for new trial, or by application for a writ
of habeas corpus. See Jackson v.
State, 973 S.W.2d 954, 957 (Tex. Crim. App. 1998); McCullough, 116
S.W.3d at 92. Without evidence of
the strategy and methods involved concerning counsel's actions at trial, the
appellate court will presume sound trial strategy. See Thompson, 9 S.W.3d at 814.
Appellant
contends that the present case is on par with Varelas, but we find
Varelas to be distinguishable.
See 45 S.W.2d at 630.
In Varelas, a habeas proceeding, trial counsel provided the court
of criminal appeals with an affidavit stating that his failure to request a
limiting instruction was due to his oversight and not the result of trial
strategy. Id. We have no such evidence in the case at
bar reflecting the reasoning behind trial counsel=s
decision not to request a limiting instruction. Thus, the record does not reflect that
trial counsel lacked a plausible professional reason for not requesting a
limiting instruction. Because
Appellant did not develop counsel=s
alleged deficiency in his motion for new trial, the record is devoid of evidence
of the strategy and methods guiding counsel=s
actions at trial and we must presume a sound trial strategy. We overrule Appellant=s
sole point.
CONCLUSION
Having
overruled Appellant=s
sole point, we affirm the trial court=s
judgment.
PER
CURIAM
PANEL
F: HOLMAN, WALKER, and McCOY,
JJ.
DO
NOT PUBLISH
Tex.
R. App. P.
47.2(b)
DELIVERED: December 8,
2005
See
Tex.
R. App. P.
47.4.