Opinion
No. 14-02-00727-CR
Opinion filed September 23, 2003. Do Not Publish. Tex.R.App.P. 47.2(b).
On Appeal from the 248th District Court, Harris County, Texas, Trial Court Cause No. 871,084
Panel consists of Chief Justice BRISTER and Justices FOWLER and FROST.
MEMORANDUM OPINION
Appellant Ralph D. Gilbert appeals his conviction for indecency with a child, arguing (1) he received ineffective assistance of counsel at trial, and (2) he suffered egregious harm because the trial court did not sua sponte include a limiting instruction on extraneous-offense evidence in its charge to the jury. We affirm.
I. Factual and Procedural Background
Appellant pleaded not guilty to an indictment charging him with indecency with a child alleged to have been committed against his half-sister when she was ten years old. A jury found appellant guilty. In the punishment phase of trial, appellant pleaded true to two felony enhancements. The jury received uncontroverted evidence that appellant repeatedly raped two of his other half-sisters over a span of at least three years, beginning when the girls were under the age of eleven. The jury assessed punishment at life imprisonment in the Texas Department of Criminal Justice, Institutional Division, and the trial court sentenced appellant accordingly.II. Issues Presented
Appellant presents the following issues for appellate review:(1) Was appellant's trial counsel ineffective during the guilt-innocence phase, because she neither objected to evidence of an extraneous rape nor requested a limiting instruction with respect to the jury's consideration of this evidence?
(2) Did the trial court have a duty to sua sponte include a limiting instruction regarding the extraneous-rape testimony in the jury charge during the guilt-innocence phase?
III. Analysis and Discussion A. Did appellant's trial counsel render ineffective assistance?
In his first issue, appellant argues his trial counsel was ineffective because she did not object or request a limiting instruction when, during the guilt-innocence phase, the complainant testified that appellant raped her and her sister. The complainant made this statement in a nonresponsive answer to a question from the prosecutor. Both the United States and Texas Constitutions guarantee an accused the right to assistance of counsel. U.S. Const. amend. VI; Tex. Const. art. I, § 10; Tex. Code Crim. Proc. art. 1.05. This right necessarily includes the right to reasonably effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984); Ex parte Gonzales, 945 S.W.2d 830, 835 (Tex.Crim.App. 1997). To prove ineffective assistance of counsel, appellant must show that: (1) trial counsel's representation fell below an objective standard of reasonableness, based on prevailing professional norms; and (2) the result of the proceeding would have been different but for trial counsel's deficient performance. Strickland, 466 U.S. at 688-92. Moreover, appellant bears the burden of proving his claims by a preponderance of the evidence. Jackson v. State, 973 S.W.2d 954, 956 (Tex.Crim.App. 1998). In assessing appellant's claims, we apply a strong presumption that trial counsel was competent. Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999). We presume counsel's actions and decisions were reasonably professional and were motivated by sound trial strategy. See Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994). Appellant has the burden to rebut this presumption by presenting evidence illustrating why trial counsel did what she did. See id. An appellant cannot meet this burden if the evidence in the record does not specifically focus on the reasons for trial counsel's conduct. See Osorio v. State, 994 S.W.2d 249, 253 (Tex.App.-Houston [14th Dist.] 1999, pet. ref'd). When, as here, there is no proper evidentiary record developed at a hearing on a motion for new trial, it is extremely difficult to show that trial counsel's performance was deficient. See Gibbs v. State, 7 S.W.3d 175, 179 (Tex.App.-Houston [1st Dist.] 1999, pet. ref'd). If there is no hearing or if counsel does not appear at the hearing, an affidavit from trial counsel becomes vital to the success of most ineffective-assistance claims. Stults v. State, 23 S.W.3d 198, 209-10 (Tex.App.-Houston [14th Dist.] 2000, pet. ref'd). Failure to object to admissible evidence does not constitute ineffective assistance of counsel. See Gosch v. State, 829 S.W.2d 775, 784 (Tex.Crim.App. 1991). Therefore, before appellant can prevail on a claim of ineffective assistance based on trial counsel's failure to object, appellant must show the trial court would have committed error in overruling the objection. See Vaughn v. State, 931 S.W.2d 564, 566 (Tex.Crim.App. 1996). Appellant argues the extraneous-offense evidence was inadmissible for any purpose, and therefore counsel's failure to object could not possibly have been reasonable trial strategy. Appellant's main argument is that the extraneous offense was not admissible to prove intent under Texas Rule of Evidence 404(b) because intent was not a contested issue in the case. See Tex.R.Evid. 404(b); Johnson v. State, 932 S.W.2d 296, 301 (Tex.App.-Austin 1996, pet. ref'd) (cited by appellant). Evidence of an extraneous offense is admissible upon a clear showing that: (1) the extraneous offense is probative of an element of the offense charged; (2) the accused participated in the extraneous offense; and (3) the relevance of the offense to a material issue outweighs inflammatory or prejudicial potential. See Harrell v. State, 884 S.W.2d 154, 158 (Tex.Crim.App. 1994). Evidence of an extraneous offense is only admissible to show intent when the intent required for conviction of the primary offense is a contested issue in the case. McGee v. State, 725 S.W.2d 362, 364 (Tex.App.-Houston [14th Dist.] 1987, no pet.). Intent is a contested issue (1) if the required intent cannot be inferred from the act itself; or (2) if the accused presents evidence to rebut an inference that the required intent existed. Id. Intent is clearly in issue when the defense argues that the charged offense was unintentional or the result of an accident. See Johnson v. State, 932 S.W.2d at 302. In this case, in order to obtain a conviction for the charged offense — indecency with a child — the State was required to prove appellant acted with intent to arouse or gratify the sexual desire of any person. See Tex. Pen. Code § 21.11. Defense counsel argued and elicited testimony to show that appellant's actions were "horseplay" rather than indecency. Accordingly, we find intent was in issue and the appellant's rape of the complainant and her sister would tend to show appellant acted with intent to arouse or gratify his own sexual desire. Once it is determined that extraneous-offense evidence is relevant, the party opposing its admission must object under Rule 403 that any probative value of the evidence is outweighed by the danger of unfair prejudice. See Tex.R.Evid. 403; Montgomery v. State, 810 S.W.2d 372, 389 (Tex.Crim.App. 1991) (op. on reh'g). This standard favors the admission of relevant evidence, and it is presumed that relevant evidence will be more probative than prejudicial. See Harrell, 884 S.W.2d at 161 n. 14; Montgomery, 810 S.W.2d at 389. In keeping with this presumption, the trial court should favor admission of relevant evidence in close cases, and a trial court's ruling will be reversed only if it is an abuse of discretion. See Montgomery, 810 S.W.2d at 389, 392. In determining whether a trial court has abused its discretion in admitting evidence, we measure the trial court's ruling against the relevant criteria by which a Rule 403 decision is to be made. See id. at 392. These criteria may include the following:(1) how compellingly the extraneous-offense evidence serves to make a fact of consequence more or less probable — a factor that is related to the strength of the evidence presented by the proponent to show the defendant committed the extraneous offense;
(2) the potential, if any, of the evidence of the other offense to impress the jury in some irrational but indelible way; and
(3) the force of the proponent's need for this evidence to prove a fact of consequence, i.e., does the proponent have other probative evidence available to him to help establish this fact? Is this fact related to an issue in dispute?See Santellan v. State, 939 S.W.2d 155, 169 (Tex.Crim.App. 1997). Measuring the relevant criteria under an abuse-of-discretion standard, we cannot say the trial court would have committed error if it had overruled an objection by appellant's counsel to the extraneous-offense evidence. See Vaughn v. State, 931 S.W.2d at 566; Santellan, 939 S.W.2d at 169 (finding extraneous-offense evidence of appellant's abuse of corpse admissible to help prove intent). Even assuming arguendo the extraneous-offense evidence was inadmissible, trial counsel's failure to object would not necessarily amount to ineffective assistance in the absence of any evidence of trial counsel's strategy. Failure to object to inadmissible extraneous-offense evidence can constitute a plausible trial strategy. Heiman v. State, 923 S.W.2d 622, 626 (Tex.App.-Houston [1st Dist.] 1995, pet. ref'd). In Heiman, the defendant was convicted of indecency with a child committed against his own daughter. See id. at 623. In Heiman, the appellant argued on appeal that trial counsel was ineffective for failure to object to extraneous evidence of (1) the accused's injecting cocaine into the complainant and himself at the time of the charged offense; and (2) the complainant's testimony of the accused's extraneous sexual acts toward the complainant. Id. at 626. The appellate court found the extraneous-offense evidence inadmissible, but held it was within the scope of plausible trial strategy because the record showed trial counsel's strategy was to challenge the complainant's credibility. Id. at 626-27. As in Heiman, the record before us suggests that undermining the complainant's credibility was a critical component of trial counsel's strategy. In cross-examining the complainant and making closing argument to the jury, trial counsel emphasized inconsistencies in the complainant's testimony, asserted that the complainant had a motive to lie because appellant previously had exercised disciplinary authority over the complainant, and suggested appellant had really only engaged in innocent "horseplay" with the complainant. For these reasons, we cannot conclude from the silent record before us that trial counsel's failure to object to the extraneous-offense evidence constituted ineffective assistance of counsel. Similarly, we will not question the reasonableness of trial counsel's strategy in not requesting a limiting instruction regarding the extraneous offense. See Ex parte Varelas, 45 S.W.3d 627, 632 (Tex.Crim.App. 2001) (reviewing court may not speculate as to why trial counsel failed to request limiting instruction when record is silent, even if court has difficulty understanding counsel's inaction). Even if we could presume from a silent record that trial counsel's failure to object or obtain a limiting instruction fell below an objective standard of reasonableness, appellant still could not prevail on his ineffective assistance claim because under the second prong of Strickland, appellant has not shown that the outcome of his trial would have been different if trial counsel had objected or requested a limiting instruction. See Strickland, 466 U.S. at 688-92. Accordingly, we overrule appellant's first issue. B. Did the trial court have a duty to sua sponte include a limiting instruction regarding the extraneous-rape testimony in the jury charge during the guilt-innocence phase? In his second issue, appellant argues he suffered egregious harm during the guilt-innocence phase because the trial court failed to sua sponte provide a limiting instruction to the jury that it could consider the extraneous rapes only if it found beyond a reasonable doubt that appellant committed them. In the punishment phase of non-capital cases, a trial court is statutorily required, but not constitutionally required, to instruct a jury sua sponte that it may not consider extraneous-offense evidence unless it finds the extraneous offenses have been proven beyond a reasonable doubt. See Tex. Code Crim. Proc. art. 37.07, § 3(a); Huizar v. State, 12 S.W.3d 479, 484 (Tex.Crim.App. 2000). Because this statutory duty does not apply to the guilt-innocence phase of trial, the trial court did not err by failing to sua sponte instruct the jury in this manner. Because the trial court did not commit error, we need not decide whether the alleged error harmed appellant. Accordingly, we overrule appellant's second issue. Having overruled both of appellant's issues, we affirm the trial court's judgment.