Opinion
NO. 01-15-01007-CR NO. 01-15-01008-CR
09-07-2017
JERRY LEE COZART, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 405th District Court Galveston County, Texas
Trial Court Case Nos. 14CR1904 & 14CR1905
MEMORANDUM OPINION
A jury convicted appellant Jerry Lee Cozart of two offenses of aggravated sexual assault of a disabled person. See TEX. PENAL CODE § 22.021(a)(1)(B)(i), (a)(2)(C). The jury assessed punishment at five years for each offense. On appeal, Cozart raises seven issues challenging the trial court's judgment. He challenges both the legal and factual sufficiency of the evidence to support his conviction. He contends that the trial court erred by: finding the testimony of an outcry witness to be reliable; excluding testimony about an earlier outcry made by the complainant; excluding evidence about the denial of victim's compensation benefits to the outcry witness; and replacing a juror. He also argues that he received ineffective assistance of counsel.
We conclude that the evidence was sufficient to support Cozart's conviction, his counsel was not shown to have rendered ineffective assistance, and the remaining issues either were not preserved or fail to identify a reversible error. Therefore, we affirm the trial court's judgment.
Background
The complainant, A.H., moved from Kansas City, Missouri when she was in seventh grade to live with her aunt, Sherronda Randle. A.H. was "developmentally delayed," and she was placed in special-education classes.
Sherronda has a daughter named Keyunte, who lived in her own apartment. During the time that A.H. lived with Sherronda, Keyunte dated appellant Jerry Lee Cozart. When A.H. was 15, she would spend the night at Keyunte's apartment. Cozart also spent the night at Keyunte's apartment.
According to Sherronda, A.H. was "always happy go lucky," but she began acting "angry." Because of A.H.'s change in demeanor, Sherronda asked if anybody had been bothering her. A.H. responded by accusing Cozart of having anal and vaginal intercourse with her at Keyunte's apartment. Sherronda reported these statements to the police, and she took A.H. to a forensic interview about her allegations. After her initial outcry, A.H. later told Sherronda that Cozart also forced her to perform oral sex on him. A.H. was 15 years old at the time Cozart allegedly assaulted her.
After a police investigation, a grand jury returned two indictments against Cozart. Both indictments alleged that he committed aggravated sexual assault against a disabled child. One alleged that he caused the penetration of A.H.'s anus, while the other alleged that he caused the penetration of her sexual organ.
The court held a pretrial hearing to determine whether Sherronda was the proper outcry witness and to determine the reliability of A.H.'s outcry statement. Sherronda testified that A.H. was normally "a bubbly, happy kid," but prior to the outcry, she had been "acting weird," was "really angry," and "was gaining weight." As a result of these changes, Sherronda asked if "anybody" had "touched [her] inappropriately or touched [her] the wrong way in [her] . . . private parts." A.H. responded that she was touched by "Jerry." A.H. told Sherronda that she was in the restroom at Keyunte's apartment, while everyone was asleep, when Cozart came in and told her "to bend over." According to Sherronda, A.H. used the phrase "getting booty" to communicate that Cozart had sex with her "in the back." She also testified that A.H. reported Cozart having sex with her "in the front," which she took to mean vaginal intercourse, both on the couch and in the kitchen. Sherronda also asked A.H. if Cozart had made her "put it in [her] mouth," and A.H. said she "told him no." Finally, Sherronda discussed how A.H. said she had told Keyunte about the assault, but Keyunte denied having been told about it.
On cross-examination, Sherronda conceded that during the initial outcry A.H. did not tell her about having sex in the restroom, or that Cozart had forced her to perform oral sex on him. She learned of those allegations after the initial outcry. Sherronda also testified that she did not approve of Cozart's relationship with Keyunte.
At the conclusion of the hearing, the trial court judge found that the testimony was reliable regarding the "time content and circumstances" of A.H.'s statement, and that Sherronda was "the proper outcry witness as to the incidents regarding the couch and the kitchen." The court did not allow Sherronda to testify about the incidents not included in A.H.'s initial outcry. Thus, Sherronda could not testify that A.H. reported either having sex with Cozart in the restroom or being forced to perform oral sex on him.
At trial, the State called Sherronda to testify about A.H. and the outcry statement about Cozart. She testified that A.H. is "developmentally delayed" and was placed in a special education program at her school. She again testified about A.H.'s change in demeanor prior to the outcry, and then stated that she "had a gut feeling, a hunch, a nudge that something" was "off," so she asked A.H., "has anybody been bothering you?" A.H. initially responded, "Yeah, ghosts." Knowing that A.H. talks to herself, Sherronda then said "I'm talking about anybody touching you inappropriately." A.H. then told her that "Jerry did." Sherronda explained that A.H. called her vagina the "puddy cat," and "her booty is the butt." As she did in the pretrial hearing, Sherronda recounted for the jury the statements made by A.H., including those in which she said that Cozart had sex with her "in the front and in the back." Sherronda clarified that A.H. responded affirmatively when asked "[w]as it in the puddy cat?" and "did he stick it in your booty?" A.H. told her the assaults happened in the living room and the kitchen at Keyunte's apartment, and that it "hurt."
A.H., who was 18 years old at the time of trial, also testified. The State began its questioning of A.H. by establishing that she knew the difference between the truth and a lie. A.H. answered several questions about her school programs and summer jobs. Eventually, the State asked her about what she remembered from being 15 years old. A.H. testified that around "Christmastime," when she was 15, she would stay at Keyunte's apartment, and she slept on the couch. A.H. was able to describe and draw a depiction of Keyunte's apartment.
According to A.H., she was asleep in the living room when Cozart came in and started watching television. She then went into the kitchen and got some water. A.H. testified that Cozart was in the kitchen with her, and "he had sex" with her. A.H. recounted what she and Cozart were wearing at the time and the fact that he told her to take her pants off. She testified that she performed oral sex on him, and that they had anal sex. A.H. also testified that Cozart had vaginal intercourse with her. After testifying about details of how Cozart had sex with her, A.H. recounted that he told her, "Don't tell anybody," or he would not buy her anything. Finally, A.H. testified that she remembered it was Christmas when the assault happened.
In addition to Sherronda and A.H., the State called several witnesses to testify about A.H.'s disability. These witnesses testified about A.H.'s below-average IQ and her special-education program. Additionally, there was testimony indicating that A.H. could not care for herself or "live independently."
The State also called Keyunte to testify about her relationship with Cozart. Keyunte confirmed that both A.H. and Cozart spent the night at her apartment. She confirmed the accuracy of A.H.'s depiction of her apartment.
Cozart sought to elicit testimony from Sherronda and Keyunte about a previous outcry made by A.H. In the previous outcry, A.H. accused a man in Missouri of committing acts against her similar to those alleged against Cozart. Cozart argued that the evidence about the previous outcry would demonstrate the motives or bias of Sherronda and A.H. in accusing him. The State objected on the basis of hearsay and speculation, and it argued that Cozart had not produced any evidence to prove the previous outcry was false. The trial court found that Cozart had not proved that the previous outcry was false. As a result, the trial court did not allow Cozart to elicit testimony about the previous outcry because it would have been unduly prejudicial and would confuse the jury. Cozart made an offer of proof in which he demonstrated the testimony he sought to elicit from Sherronda. The court then reaffirmed its ruling that he could not cross-examine Sherronda about the previous outcry.
Cozart also sought to elicit testimony from Sherronda about her application for and denial of victim's compensation. After asking several questions about her application, defense counsel asked Sherronda about a letter from the Attorney General's office in which she was denied compensation. The State objected on the basis of hearsay, and the trial court sustained the objection. Cozart did not offer the letter into evidence or make an offer of proof to establish the answer to the question.
After closing arguments during the guilt-innocence phase, the jury began deliberations, which carried over into a second day. The trial court instructed the jurors to arrive at 9 a.m. Juror No. 10 did not arrive on time. The court attempted to reach the absent juror by several methods, including issuing a writ of attachment, but the juror could not be located. The court waited over 2½ hours for the absent juror to arrive. Eventually, the court replaced the missing juror with an alternate, and defense counsel moved for a mistrial. The court denied the motion.
The jury found Cozart guilty of aggravated sexual assault of a disabled person as alleged in both indictments, and it assessed punishment at five years in prison for each offense. Cozart filed a motion for new trial in which he raised several grounds of error, including that the trial court erred by substituting an alternate juror during the guilt-innocence phase. The trial court denied his motion.
Cozart appealed.
Analysis
In seven issues, Cozart challenges the trial court's judgment. He disputes both the legal and factual sufficiency of the evidence to support his conviction. He contends that the trial court erred by: finding the outcry-witness statement reliable; limiting his cross-examination of several witnesses about a previous outcry made by A.H.; limiting his cross-examination of Sherronda about a letter she received in which she was denied victim's compensation; and substituting an alternate juror after finding that an absent juror was disabled. Cozart also contends that his trial counsel were ineffective because they failed to request a hearing to test the competency of A.H. to testify.
I. Sufficiency of the evidence
Cozart contends that the evidence was both legally and factually insufficient to support his conviction. Rather than identifying any specific element of the offense for which the evidence was insufficient, Cozart generally challenges the credibility and reliability of A.H.'s trial testimony. With respect to his factual sufficiency challenge, Cozart also argues that the ordinary standard of review is unconstitutional, and he maintains that we should conduct separate analyses for both legal and factual sufficiency.
In reviewing the legal sufficiency of the evidence to support a criminal conviction, a court of appeals will determine whether, after viewing the evidence in the light most favorable to the verdict, the trier of fact was rationally justified in finding the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010). We measure the evidence "by the elements of the offense as defined by the hypothetically correct jury charge for the case." Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). As the exclusive judge of the facts, the jury may believe or disbelieve all or any part of a witness's testimony. Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991). We presume that the factfinder resolved any conflicting inferences in favor of the verdict, and we defer to that resolution. See Jackson, 443 U.S. at 326, 99 S. Ct. at 2793. On appeal, we may not re-evaluate the weight and credibility of the record evidence and thereby substitute our own judgment for that of the factfinder. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).
We review the factual sufficiency of the evidence under the same appellate standard of review as that for legal sufficiency. See Brooks, 323 S.W.3d at 912-13, 917-18, 922-24, 926-28. This court previously has rejected constitutional challenges, such as those made by Cozart, to the use of the Jackson v. Virginia sufficiency standard when conducting a factual-sufficiency review. See, e.g., Kiffe v. State, 361 S.W.3d 104, 109-10 (Tex. App.—Houston [1st Dist.] 2011, pet. ref'd); see also Tan v. State, No. 01-15-00511-CR, 2016 WL 3542255, at *3 (Tex. App.—Houston [1st Dist.] June 28, 2016, pet. ref'd) (mem. op., not designated for publication).
A person commits the offense of aggravated sexual assault of a disabled individual if the person (1) intentionally or knowingly (2) caused the penetration of the anus or sexual organ of a child by any means, and (3) the victim is a disabled individual. See TEX. PEN. CODE § 22.021(a)(1)(B)(i), (a)(2)(C). In a prosecution under Section 22.021, a child "means a person younger than 17 years of age," and a disabled individual means "a person older than 13 years of age who by reason of age or physical or mental disease, defect, or injury is substantially unable to protect himself from harm or to provide food, shelter, or medical care for himself." Id. §§ 22.011(c)(1), 22.021(b)(1), (b)(3).
The State called several witnesses, including A.H. and her aunt, to testify. A.H. described the sexual assaults committed against her by Cozart when she was 15, which involved penetration of both her anus and sexual organ, and her aunt described A.H.'s outcry statement. Additionally, several witnesses testified about A.H.'s disabilities. Based on the testimony of these witnesses and the evidence presented at trial, the jury found Cozart guilty of aggravated sexual assault of a disabled child.
Cozart does not identify any specific element of the offense for which he contends the State presented insufficient evidence. Instead, he contends that A.H.'s description of the sexual assault "defies biology and common experience." He also argues that the issue in this case "is whether any rational juror could rely upon the clearly coached testimony of a mentally challenged person." Thus, Cozart challenges the credibility and reliability of A.H.'s trial testimony.
The jury is the exclusive judge of the facts, the credibility of the witnesses, and the weight to be given their testimony. See Brooks, 323 S.W.3d at 899; Buentello v. State, 512 S.W.3d 508, 515-16 (Tex. App.—Houston [1st Dist.] 2016, pet. ref'd). On cross-examination, A.H. testified that all of the alleged sexual acts by Cozart occurred in "4 minutes." During closing arguments, defense counsel highlighted the improbability of all of the acts alleged by A.H. occurring within such a short period of time. As the sole judge of the weight and credibility of witness testimony, it was the province of the jury to resolve any inconsistencies in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. See Brooks, 323 S.W.3d at 899; Shah v. State, 414 S.W.3d 808, 814 (Tex. App.—Houston [1st Dist.] 2013, pet. ref'd).
In addition to arguing that A.H.'s testimony was inconsistent, defense counsel suggested through his questioning and closing arguments that her testimony had been "coached." As with the suggested inconsistencies, the determination of whether or not A.H. was "coached," and the effect this may have had on her credibility, were matters to be determined by the jury. See TEX. CODE CRIM. PROC. art. 38.04; Torres v. State, 424 S.W.3d 245, 254 (Tex. App.—Houston [1st Dist.] 2014, pet. ref'd).
The jury's verdict finding Cozart guilty of aggravated sexual assault of A.H. indicates that it found her testimony credible. Because the jury was the exclusive judge of the facts, the credibility of the witnesses, and the weight to be given their testimony, we overrule Cozart's challenge to the sufficiency of the evidence based on the credibility and reliability of A.H.'s trial testimony. See Brooks, 323 S.W.3d at 899; Shah, 414 S.W.3d at 814; see also TEX. CODE CRIM. PROC. art. 38.04; Torres, 424 S.W.3d at 254.
II. Outcry-witness testimony
Cozart contends that the trial court erred by admitting Sherronda's outcry testimony. Specifically, he challenges the reliability of the outcry statement made by A.H.
The Code of Criminal Procedure allows admission of certain hearsay testimony in the prosecution of sexual offenses against minors and persons with a disability. See TEX. CODE CRIM. PROC. art. 38.072. The statute allows the designation of an outcry witness to testify about the disclosure of abuse by a child or a person with a disability, but it requires that the outcry witness be the "first person, 18 years of age or older, other than the defendant, to whom the child or person with a disability made a statement about the offense." Id. art. 38.072, § 2(a)(3); Garcia v. State, 792 S.W.2d 88, 91 (Tex. Crim. App. 1990). To qualify, the disclosure must include more than "a general allusion that something in the area of child abuse was going on." Garcia, 792 S.W.2d at 91. It must "in some discernible manner" describe the alleged offense. Id. This furthers the societal interest in curbing child abuse by preventing the designation of a person who only received a vague suggestion of abuse over a later-in-time person who received a more detailed account of sexual abuse. See id.
Before a designated outcry witness may testify about a disclosure made by a child or person with a disability, the trial court must find, "in a hearing conducted outside the presence of the jury, that the statement is reliable based on the time, content, and circumstances of the statement." TEX. CODE CRIM. PROC. art. 38.072, § 2(b)(2). "The phrase 'time, content, and circumstances' refers to 'the time the child's statement was made to the outcry witness, the content of the child's statement, and the circumstances surrounding the making of that statement.'" Broderick v. State, 89 S.W.3d 696, 699 (Tex. App.—Houston [1st Dist.] 2002, pet. ref'd) (quoting MacGilfrey v. State, 52 S.W.3d 918, 921 (Tex. App.—Beaumont 2001, no pet.)).
In such a hearing, the trial court's focus is whether the child's outcry statement is reliable, not whether the outcry witness is credible. Sanchez v. State, 354 S.W.3d 476, 487-88 (Tex. Crim. App. 2011); see TEX. CODE CRIM. PROC. art. 38.072, § 2(b)(2). Indicia of reliability that the trial court may consider include: (1) whether the child victim testifies at trial and admits making the out-of-court statement, (2) whether the child understands the need to tell the truth and has the ability to observe, recollect, and narrate, (3) whether other evidence corroborates the statement, (4) whether the child made the statement spontaneously in her own terminology or whether evidence exists of prior prompting or manipulation by adults, (5) whether the child's statement is clear and unambiguous and rises to the needed level of certainty, (6) whether the statement is consistent with other evidence, (7) whether the statement describes an event that a child of the victim's age could not be expected to fabricate, (8) whether the child behaves abnormally after the contact, (9) whether the child has a motive to fabricate the statement, (10) whether the child expects punishment because of reporting the conduct, and (11) whether the accused had the opportunity to commit the offense. See Buentello, 512 S.W.3d at 518 n.4. The trial court considers the circumstances of the outcry, not the abuse itself. See Sanchez, 354 S.W.3d at 487. Outcry reliability is determined on a case-by-case basis. Buentello, 512 S.W.3d at 518; Davidson v. State, 80 S.W.3d 132, 139 (Tex. App.—Texarkana 2002, pet. ref'd).
A trial court has "broad discretion" in admitting outcry-witness testimony. Garcia, 792 S.W.2d at 92. We will not reverse the trial court's decision to admit outcry-witness testimony unless it falls outside the zone of reasonable disagreement. See id.
Cozart challenges the reliability of A.H.'s outcry statement based on the fact that it was not "spontaneous." He contends that the outcry only occurred because of the alleged "interrogation" of A.H. by Sherronda, the outcry witness, and that the statement was likely just an agreeable response to the interrogation. Additionally, Cozart argues that the statement was unreliable because Sherronda had "mixed motives" based on her disapproval of his relationship with Keyunte.
The trial court held a hearing to determine the reliability of the outcry statement. During the hearing, only Sherronda testified about the outcry statement. Sherronda's testimony indicated that the outcry statement was not made spontaneously and that she prompted and encouraged A.H. to tell her what happened. But her testimony did not show that she prompted A.H. as to the detailed substance of the outcry statement. Instead, she only asked A.H. whether anybody had touched her "inappropriately." A.H. provided the substance about Cozart having sex with her, and she did so in her own words. Although there was evidence that Sherronda disapproved of Keyunte's relationship with Cozart, there was no direct evidence in the record indicating that she coached A.H. to fabricate her statement about him. See Torres, 424 S.W.3d at 258-59. Additionally, there was no evidence that A.H. had any motivation to accuse Cozart of a crime. Finally, Keyunte's testimony that Cozart and A.H. had spent the night at her apartment established that he had the opportunity to commit the offenses involved in the outcry testimony. See Davidson, 80 S.W.3d at 139.
The trial court was vested with discretion to determine whether A.H.'s outcry statements were sufficiently reliable based on the time, content, and circumstances of the statements. See Buentello, 512 S.W.3d at 518-20; Torres, 424 S.W.3d at 259. The trial court's determination was supported by the evidence and did not fall outside the zone of reasonable disagreement. See Buentello, 512 S.W.3d at 518-20; Torres, 424 S.W.3d at 259; Davidson, 80 S.W.3d at 139. Accordingly, the trial court did not abuse its discretion in finding that the outcry statement was reliable. See Buentello, 512 S.W.3d at 518-20; Torres, 424 S.W.3d at 259. We overrule Cozart's challenge to the admission of the outcry testimony.
III. Exclusion of evidence and confrontation of witnesses
Cozart challenges the trial court's exclusion of evidence he wished to elicit from several of the State's witnesses. He argues that the trial court erred by refusing to allow him to cross-examine Sherronda and others about a previous outcry in which A.H. accused a man in Missouri of sexually assaulting her in a manner similar to the allegations in this case. Cozart also contends that the trial court erred by excluding testimony from Sherronda about a letter she received from the Attorney General in which she was denied "Victim's Assistance Compensation." With respect to both issues, Cozart contends that the limitations the trial court placed on his cross-examination of Sherronda and others violated the Confrontation Clause.
We review a trial court's decision to admit or exclude evidence under an abuse-of-discretion standard. Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000). A trial court abuses its discretion when its decision lies outside the zone of reasonable disagreement. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990). We review the ruling in light of what was before the court when it ruled. Weatherred, 15 S.W.3d at 542. A trial court's ruling will be upheld if it is reasonably supported by the record and is correct under any theory of law applicable to the case. Willover v. State, 70 S.W.3d 841, 845 (Tex. Crim. App. 2002). To preserve error and challenge the exclusion of evidence on appeal, the complaining party must present the excluded evidence to the trial court by offer of proof. See Alfaro v. State, 224 S.W.3d 426, 433 (Tex. App.—Houston [1st Dist.] 2006, no pet.); TEX. R. EVID. 103(a)(2).
"The Sixth Amendment right to confront witnesses includes the right to cross-examine witnesses to attack their general credibility or to show their possible bias, self-interest, or motives in testifying." Hammer v. State, 296 S.W.3d 555, 561 (Tex. Crim. App. 2009) (citing Davis v. Alaska, 415 U.S. 308, 316, 94 S. Ct. 1105, 1110 (1974)). This right, however, is not unbounded. The trial court may exercise discretion to limit the scope and extent of cross-examination to avoid harassment, prejudice, confusion of the issues, endangering the witness, and the injection of cumulative or collateral evidence. Hammer, 296 S.W.3d at 561; Lopez v. State, 18 S.W.3d 220, 222 (Tex. Crim. App. 2000). The ordinary limitations on the right to cross-examine a witness under the Sixth Amendment will not conflict with an accused's rights: "generally speaking, the Texas Rules of Evidence permit the defendant to cross-examine a witness for his purported bias, interest, and motive without undue limitation or arbitrary prohibition." Hammer, 296 S.W.3d at 563. However, the Confrontation Clause will prevail when such a conflict arises. See U.S. CONST. art. VI, cl. 2; TEX. R. EVID. 101(d); Hammer, 296 S.W.3d at 561 & n. 9; Lopez, 18 S.W.3d at 222-23.
A. Previous outcry statement
Cozart argues that the trial court erred by refusing to allow him to cross-examine Sherronda and other witnesses about a previous outcry made by A.H. He contends that the previous outcry allegation was false and would have demonstrated A.H.'s or Sherronda's motive and bias for making allegations against him. As a result, he contends it was admissible under the Confrontation Clause. Cozart relies upon Hammer v. State, 296 S.W.3d 555 (Tex. Crim. App. 2009), and Billodeau v. State, 277 S.W.3d 34 (Tex. Crim App. 2009), in support of his contentions.
In Hammer, a father was convicted of indecency with a child for assaulting his daughter. 296 S.W.3d at 557-60. In that case, the trial court did not allow the father to present testimony and documentary evidence indicating that the complainant was angry with her father for taking her to the hospital for a sexual-assault examination. Id. at 567. Additionally, the trial court excluded evidence that indicated that the complainant previously had lied about being sexually assaulted to conceal from her father that she had sex with her boyfriend. Id. And finally, the court excluded evidence indicating that the daughter was so distraught by her father taking her to be examined for sexual assault that she threatened suicide and was admitted to a state hospital. Id. She was released from the hospital shortly before her father allegedly assaulted her. Id. The Court of Criminal Appeals concluded the trial court erred by excluding this evidence because it was "strong support for" the father's "theory" that the daughter "had a motive to falsely accuse him of sexual molestation." Id. at 567-69.
In Billodeau, the defendant was convicted of aggravated sexual assault of a child. 277 S.W.3d at 38-39. The Court of Criminal Appeals held that the trial court should have admitted evidence that the child-complainant had made threats to falsely accuse two neighbors of sexual molestation. Id. at 43. The court held that such evidence supported the defensive theory that the complainant's motive in accusing the defendant of sexual molestation was "rage and anger" when he was thwarted. Id. at 42.
In this case, Cozart sought to elicit testimony from Sherronda and Keyunte about a prior outcry made by A.H. The State objected to the testimony on the basis of hearsay and relevance. It argued that there was no evidence the previous allegation was false, and therefore it had "no probative value whatsoever" and would confuse the jury and unfairly prejudice the State's case. Cozart tendered to the court a letter in which the prosecutor's office informed Sherronda that it had decided not to file criminal charges as a result of A.H.'s previous outcry. The letter stated: "A decision not to file charges does not mean that our office concluded that no crime was committed or that the victim was not credible." After Cozart tendered the letter, the trial court ruled by stating:
The Court finds that there's no proof that the child's allegations against the previous allegations were false. Therefore, the evidence has no probative value and will only serve to unduly prejudice and confuse the jury.
After the ruling, Cozart made an offer of proof detailing the testimony he wished to elicit. Defense counsel questioned Sherronda about A.H.'s previous outcry. Through his questioning, counsel elicited evidence that Sherronda became aware of the prior allegation after one of A.H.'s teachers told her about it, the allegation was similar to the one made against Cozart, and she got a letter from the prosecutor's office informing her that no charges were filed. Following the offer of proof, the court reaffirmed its ruling refusing to allow Cozart to cross-examine Sherronda about the previous outcry.
Unlike the Hammer and Billodeau cases relied upon by Cozart, this case is much more similar to Garcia v. State, 228 S.W.3d 703 (Tex. App—Houston [14th Dist.] 2005, pet. ref'd). In Garcia, the defendant was convicted of indecency with a child and aggravated sexual assault of a child. 228 S.W.3d at 704-05. The trial court refused to admit evidence suggesting that the complainant had made a false accusation against another man. Id. at 705. On appeal, the court noted that specific instances of a witness's misconduct ordinarily may not be used to demonstrate that witness's untrustworthiness. Id. at 706. But the Confrontation Clause may require admissibility of evidence that the rules of evidence would exclude. Id. In determining whether evidence must be admitted under the Confrontation Clause, the trial court must balance the probative value of the testimony against the risk its admission entails. Id. For evidence of extraneous allegations to be admissible to impeach the credibility of the complaining witness and thus have a probative effect, there must be a showing that the accusations were false. Id. The court then held that the defendant had failed to prove the complainant's accusation against the other man was false. Id. As a result, the court concluded that the trial court did not abuse its discretion by excluding the evidence because without proof that the other allegation was false, the evidence had no probative value and only served to unduly prejudice and confuse the jury. Id.
The evidence proffered by Cozart did not establish the falsity of A.H.'s previous allegation. See Lopez, 18 S.W.3d at 225-26; Garcia, 228 S.W.3d at 706. Without proof that the allegation against the man in Missouri was false, the evidence had low probative value in impeaching the testimony or credibility of A.H. or Sherronda, and it reasonably could have been determined to be unduly prejudicial and likely to confuse the jury. See Lopez, 18 S.W.3d at 226; Garcia, 228 S.W.3d at 706; Palmer v. State, Nos. 01-08-00141-CR et al., 2010 WL 1729338, at *12 (Tex. App.—Houston [1st Dist.] Apr. 29, 2010, no pet.) (mem. op., not designated for publication). Thus, we hold that the trial court did not abuse its discretion in excluding the testimony. See Lopez, 18 S.W.3d at 226; Garcia, 228 S.W.3d at 706; Palmer, 2010 WL 1729338, at *12. We overrule Cozart's challenge to the denial of his evidence about the prior outcry.
B. Crime victim's compensation letter
Cozart challenges the trial court's decision to limit his cross-examination of Sherronda about a letter in which she was denied "Victim's Assistance Compensation." He argues that the letter and further testimony from Sherronda about the letter would have demonstrated her motive for fabrication of false claims against him. Therefore, Cozart contends that the testimony he wished to elicit should have been permitted under the Confrontation Clause.
Defense counsel asked Sherronda several questions about her filing a request with the Attorney General's Office for "Victim's Assistance Compensation." After she indicated that she may have filed some paperwork for victim's compensation, defense counsel asked her, "And you . . . got a response from them saying that this could not be confirmed; and, thus, you were not going to qualify for Victim's Assistance Compensation, correct?" The State objected to this question on the basis of hearsay and speculation, and the court sustained the objection. Cozart did not make an offer of proof regarding the substance of the letter or the testimony that he wished to elicit from that question. Accordingly, this issue has not been preserved for appeal. See Alfaro, 224 S.W.3d at 433; TEX. R. EVID. 103(a)(2).
We overrule Cozart's challenge to the limitations on his cross-examination.
IV. Substitution of alternate juror
Next, Cozart contends that the trial court erred by determining that a sitting juror had become disabled and replacing that juror with an alternate. The trial court has the discretion to determine whether a juror has become disabled and to seat an alternate juror. See TEX. CODE CRIM. PROC. art. 36.29; Scales v. State, 380 S.W.3d 780, 783 (Tex. Crim. App. 2012). Alternate jurors shall replace jurors who, before the jury renders a verdict regarding a defendant's guilt or innocence, "become or are found to be unable or disqualified to perform their duties." TEX. CODE CRIM. PROC. art. 33.011(b).
We review the trial court's decision to replace a juror for an abuse of discretion. Scales, 380 S.W.3d at 784. The trial court's decision must be sufficiently supported by the record, and we may not presume the court made a proper decision. Id. In our examination, we view the evidence in the light most favorable to the court's ruling and will reverse only if the ruling of the trial court was arbitrary or unreasonable. Id. Article 36.29 has been interpreted by the Court of Criminal Appeals to require that a disabled juror "suffer from a physical illness, mental condition, or emotional state that would hinder or inhibit the juror from performing his or her duties as a juror, or that the juror was suffering from a condition that inhibited him from fully and fairly performing the functions of a juror." Scales, 380 S.W.3d at 783 (internal quotations omitted).
The appellate record indicates that the jury began deliberating after closing arguments. The jury had been instructed to return the following day at 9:00 a.m. to continue deliberations, but one of the jurors, Juror No. 10, had not arrived by 9:53 a.m. The court went on the record and stated that "[a]ll attempts have been made to contact" the juror, including calling her and checking to see if she had called the court reporter. The court issued a writ of attachment for the juror. Defense counsel requested an opportunity to learn of the disability of the juror. The court responded by saying that "certainly the disability is that she is not present; and the jury has been waiting over an hour." After issuing the writ of attachment, the court continued waiting, for a total of 2½ hours, for the juror to arrive. Finally, at 11:27 a.m., the court went back on the record and stated:
All attempts have been made to try to locate Juror No. 10 . . . . We issued a writ of attachment. The Sheriff's deputy went by her apartment. No one is there. We've made every attempt to contact her by phone, through her work, at her home; and no one seem to be able to locate [the juror].
So, therefore, the Court instructs that alternate juror . . . will now be substituted in as Juror No. 10.
These circumstances are similar to Wilson v. State, No. 05-15-01407-CR, 2017 WL 56400 (Tex. App.—Dallas Jan. 5, 2017, no pet.) (mem. op., not designated for publication). In Wilson, as in this case, a juror did not appear when instructed to do so, and the trial court staff tried repeatedly to reach the juror by telephone. 2017 WL 56400, at *16. They were unable to do so. Id. The trial court replaced the juror with an alternate. Id. As in this case, the trial court made its decision to substitute an alternate without speaking to the juror to personally assess his ability to perform his duties. Id. The trial court found that the juror "must be disabled in the sense that he's not here, and we'll proceed on with the alternate juror." Id. On appeal, the Dallas Court of Appeals noted that the Court of Criminal Appeals in Scales stated:
This Court has never required that a trial judge speak with a juror before determining that the juror is disabled. Best practices indicate that such a conversation on the record assists appellate courts in reviewing the sufficiency of the evidence supporting the dismissal, but the failure to do so—even when the juror is available to testify—is not a per se abuse of discretion.Id. at *17 (quoting Scales, 380 S.W.3d at 784 n. 18). The court then concluded that the trial court did not abuse its discretion by finding the absent juror disabled and replacing him with the alternate. Id. at *18.
Likewise in this case, because the trial court in this case tried to reach the absent juror and the juror was missing and unreachable, we conclude that the trial court did not abuse its discretion in concluding that the juror was disabled and replacing her with the alternate. See Scales, 380 S.W.3d at 783-86; Wilson, 2017 WL 56400, at *16-18.
V. Ineffective assistance of counsel
Finally, Cozart contends that his trial counsel's failure to request a hearing to test A.H.'s competency to testify amounted to ineffective assistance of counsel.
Claims that a defendant received ineffective assistance of counsel are governed by the standard announced in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). Strickland mandates a two-part test: whether the attorney's performance was deficient, i.e., whether counsel made errors so serious that he or she was not functioning as the "counsel" guaranteed by the Sixth Amendment, and if so, whether that deficient performance prejudiced the party's defense. 466 U.S. at 687, 104 S. Ct. at 2064. "The defendant has the burden to establish both prongs by a preponderance of the evidence; failure to make either showing defeats an ineffectiveness claim." Shamim v. State, 443 S.W.3d 316, 321 (Tex. App.—Houston [1st Dist.] 2014, pet. ref'd) (citing Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011)). "When an ineffective assistance claim alleges that counsel was deficient in failing to object to the admission of evidence, the defendant must show, as part of his claim, that the evidence was inadmissible." Ortiz v. State, 93 S.W.3d 79, 93 (Tex. Crim. App. 2002).
A reviewing court "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance," and the appellant bears the burden to overcome the presumption that, under the circumstances, the challenged action was a result of sound trial strategy. Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. An accused is not entitled to perfect representation, and a reviewing court must look to the totality of the representation when gauging trial counsel's performance. Frangias v. State, 450 S.W.3d 125, 136 (Tex. Crim. App. 2013).
A claim of ineffective assistance of counsel must be "'firmly founded in the record' and 'the record must affirmatively demonstrate' the meritorious nature of the claim." Menefield v. State, 363 S.W.3d 591, 592 (Tex. Crim. App. 2012) (quoting Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005)). "It is a rare case in which the trial record will by itself be sufficient to demonstrate an ineffective-assistance claim." Nava v. State, 415 S.W.3d 289, 308 (Tex. Crim. App. 2013). The record's limitations often render a direct appeal inadequate to raise a claim of ineffective assistance of counsel, as trial counsel is unable to respond to any articulated concerns. See Goodspeed, 187 S.W.3d at 392. Ordinarily, trial counsel should be given "an opportunity to explain his actions before being denounced as ineffective." Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003). Therefore, when the record is silent as to trial counsel's strategy, a reviewing court should not find deficient performance unless the challenged conduct was "'so outrageous that no competent attorney would have engaged in it.'" Goodspeed, 187 S.W.3d at 392 (quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001)). Rather, when direct evidence of trial counsel's strategy is unavailable, "we will assume that counsel had a strategy if any reasonably sound strategic motivation can be imagined." Lopez, 343 S.W.3d at 143.
Generally, every person is presumed competent to testify. TEX. R. EVID. 601(a). Children are incompetent to testify if, "after being examined by the court, [they] appear not to possess sufficient intellect to relate transactions with respect to which they are interrogated." Gilley v. State, 418 S.W.3d 114, 120 (Tex. Crim. App. 2014) (quoting TEX. R. EVID. 601(a)(2)). A witness is competent to testify if she (1) can intelligently observe events at the time of their occurrence, (2) has the capacity to recollect those events, and (3) has the capacity to narrate those events to the jury. See Hogan v. State, 440 S.W.3d 211, 213-14 (Tex. App.—Houston [14th Dist.] 2013, pet. ref'd). A trial court may inquire as to "whether the child-witness possesses the capacity to appreciate the obligations of the oath [to tell the truth while testifying]—or can at least distinguish the truth from a lie." Gilley, 418 S.W.3d at 121. Inconsistent or confusing responses from a child do not necessarily mean that the child is incompetent to testify; rather, such matters speak to the credibility of her testimony. In re A.W., 147 S.W.3d 632, 635 (Tex. App.—San Antonio 2004, no pet.). A trial court's competency determination is reviewed for abuse of discretion. Rodriguez v. State, 772 S.W.2d 167, 170 (Tex. App.—Houston [14th Dist.] 1989, pet. ref'd); Beavers v. State, 634 S.W.2d 893, 895 (Tex. App.—Houston [1st Dist.] 1982, pet. ref'd).
The record is silent as to why trial counsel did not request a competency hearing. Although Cozart filed a motion for new trial, his motion failed to address trial counsel's failure to request a competency hearing. Thus, Cozart has failed to meet his burden under the first prong of Strickland to show that his allegations of ineffective assistance of counsel are firmly founded in the record. See Menefield, 363 S.W.3d at 592-93. This record is inadequate to overcome the presumption of reasonable performance by Cozart's trial counsel, who has had no opportunity to respond to the complaints made for the first time on appeal. See Strickland, 466 U.S. at 689, 104 S. Ct. at 2065.
We conclude that Cozart has not satisfied the first prong of the Strickland analysis, and we need not consider whether he has satisfied the requirements of the second prong. See Lopez, 343 S.W.3d at 143. Accordingly, we overrule this issue.
Conclusion
We affirm the trial court's judgment.
Michael Massengale
Justice Panel consists of Chief Justice Radack and Justices Keyes and Massengale. Do not publish. TEX. R. APP. P. 47.2(b).