Opinion
01-20-00733-CR
08-25-2022
WALTER CHARLES GOODIN, Appellant v. THE STATE OF TEXAS, Appellee
Do Not Publish. Tex.R.App.P. 47.2(b).
On Appeal from the 178th District Court Harris County, Texas Trial Court Case No. 1589650
Panel consists of Justices Landau, Hightower, and Rivas-Molloy.
MEMORANDUM OPINION
Veronica Rivas-Molloy, Justice
A jury found Appellant Walter Charles Goodin guilty of the offense of aggravated sexual assault of a child under age fourteen and, after finding one enhancement paragraph to be true, assessed his punishment at sixty years' imprisonment and a $10,000 fine. In two issues, Appellant argues (1) his trial counsel provided ineffective assistance because he did not conduct any investigation into the case, and (2) the judgment should be reformed to reflect that he pleaded "not true" to the enhancement paragraph.
We modify the trial court's judgment to reflect Appellant pleaded "not true" to the enhancement paragraph and we affirm as modified.
Background
Appellant Walter Charles Goodin ("Goodin") was charged with sexually assaulting his former girlfriend's daughter Dora in 2007, when Dora was under the age fourteen. Goodin was arrested and later indicted for aggravated sexual assault of a child under age fourteen. Attorney James Dennis Smith ("Smith") was appointed to represent Goodin.
In this opinion, we refer to the children and their mother by pseudonyms to protect their privacy.
A. Goodin's Trial
The State called four witnesses to testify against Goodin at his trial. Dora's mother, Iris, testified that she lived with Goodin in 2007, along with her seven year-old daughter, Dora, and her five year-old daughter, Beth. Goodin's and Iris' son, John, was born that same year. Iris worked outside the home and Goodin watched the children while she was away.
According to Iris, Goodin moved out of the home several years later after he "put his hands on [her] and [she] had called [the] police." Goodin only came back to the home to visit with John. The girls never spoke to Goodin or had any contact with him after he moved out. When asked how often Goodin visited John, Iris testified that Goodin did not come by very often because "he had gotten locked up during this process." Iris testified that she filed for child support after Goodin moved out, "but he didn't show up. So they went ahead and gave [her] full custody." She denied that Goodin told her he wanted custody of John.
Iris gave inconsistent testimony on cross-examination about the timeline of events, including when Goodin began living with her and her daughters and when he moved out of the house. She was consistent, however, with respect to the fact that she and her daughters were living with Goodin in 2007.
In October 2014, Goodin came by the home to pick up John for a visit. John was seven or eight years old. Iris, Dora, and Beth were home that day. On cross-examination, Iris testified that she did not remember if John had been injured at a party the day Goodin came to pick him up. Iris acknowledged that Dora would sometimes babysit John, but she denied that John had been to a birthday party with Dora shortly before Goodin picked him up that day. Iris testified that she believed Goodin and Dora had argued when Goodin brought John home, but she did not hear the argument, she only heard Goodin "burn[ing] rubber" and driving off quickly afterward. According to Iris, "Something must have happened."
Iris testified that Dora and Beth came to talk to her after Goodin left. After the girls told Iris that Goodin had sexually assaulted Dora, Iris called a family attorney who had represented her in the past for advice. Iris then took the girls to the police station to make a report and to the Children's Assessment Center ("CAC") where Dora and Beth were interviewed and seen by doctors.
Although Iris did not testify about the nature of her conversation with Dora and Beth, Dora's and Beth's trial testimony confirm they told Iris that Goodin had sexually assaulted Dora and Beth in 2007.
Iris called Goodin to confront him about the girls' allegations. Although Goodin questioned why the girls were raising the issue at that time, "[h]e didn't deny it." When asked if she had personally observed "any inappropriate behavior" between Goodin and Dora, Iris testified that one time she walked into a room and saw either Dora or Beth sitting on Goodin's lap and "it stuttered him and hurried up and put her down." When she confronted Goodin about the situation, Goodin told her it was nothing, and she did not think anything of it because she trusted him around her children at that time.
Susan Odhiambo ("Odhiambo"), a multidisciplinary team supervisor with the CAC, testified next. Odhiambo's department collaborates with law enforcement and Child Protective Services ("CPS") in child abuse cases to make sure the children involved receive the services they need, such as forensic interviews, medical examinations, and therapy. After a report of child abuse is made, law enforcement or CPS refers the case to the CAC where the child is seen by a forensic interviewer. The interviews are recorded. Odhiambo testified that she conducted forensic interviews of fifteen-year-old Dora and thirteen-year-old Beth in 2014. Although the CAC also conducts physical examinations to collect evidence of abuse, neither Dora nor Beth was physically examined because it had been several years since the abuse allegedly occurred. Odhiambo explained that, based on her training and experience, children may wait to make an outcry of abuse for several reasons, including fear of consequences if they tell someone, shame over what happened to them and their inability to stop it, and threats from the abuser.
Beth, the State's third witness, testified that when she was five or six years old, she saw Goodin force Dora to put her mouth around his penis. Beth told no one at the time because Goodin was "very aggressive" and she was scared. In 2014, Beth told her mother what she had witnessed. Beth explained that she thought it was "finally time to speak up because [Goodin] didn't have a hold of us anymore." According to Beth, she and Dora had never spoken about the abuse until the day they told their mother. On cross-examination, Beth testified she was not sure if Goodin and Dora argued when Goodin dropped John off in 2014, because she was inside the house. After Goodin left, Beth and Dora talked about the abuse and they decided to tell their mother.
The complainant, Dora, testified last. Dora testified that she and Beth lived with their mother Iris and Goodin when Dora was in the third grade. Goodin stayed home with the children when their mother went to work. In 2007, when Iris was at work, Goodin would take Dora into Iris's bedroom and make her perform oral sex on him. Beth was in the room sometimes. Dora explained that she told no one about the abuse at the time because she "didn't know to say anything." Goodin eventually moved out, but he still came by the house to visit John. Dora never spoke to Goodin.
At one point, Dora indicated that Goodin had abused both her and Beth while their mother was at work. ("He had us perform oral sex.").
In 2014, Dora told her mother that Goodin had sexually abused her in 2007 by making her perform oral sex on him. When asked why she decided to tell her mother at that time, Dora testified that she had argued with Goodin earlier that day and she was mad at Goodin. Dora explained, "I shouldn't feel like I'm not old enough to not know what's going on. I was tired of feeling like I can't speak up." Afterward, Dora told Beth that she wanted to tell their mother about the abuse and Beth was "okay with that."
On cross-examination, Dora testified that she and Goodin argued the day Goodin picked John up at the house because John had gotten hurt at a birthday party she and John had attended. Dora denied hurting John. According to Dora, she and Goodin argued via text messages, not in person. Dora testified that Goodin made her angry when he told her she was acting like a little girl. She denied seeing Goodin and Iris argue about the children during this time or hearing that Goodin wanted John to live with him. Dora testified that she was interviewed at the CAC after her mother reported the abuse to police and she had a physical examination, but the examination was not "completed."
The State rested its case after Dora's testimony. Goodin's counsel rested the defense's case without calling any witnesses. In closing, trial counsel argued the State had not proven its case beyond a reasonable doubt because "although there is no statute of limitations, although the law says that this offense can be raised at any given time, the thing about it is think how hard it makes it to defend." Trial counsel argued "[t]here's not going to be any physical manifestations" to corroborate an allegation that a defendant caused the penetration of a child's mouth with a sexual organ, especially when there is delayed outcry of abuse. He also argued there was "nothing to corroborate" Beth's and Dora's allegations of abuse in this case and the lack of physical evidence in this type of case makes the offense "extremely easy to fabricate." In its closing, the State went through the elements of the offense, identified the evidence that supported each one, and addressed trial counsel's argument that allegations of oral sex are easy to fabricate. ("What motive do those girls have to lie in this case?"). After deliberating for about one hour, the jury found Goodin guilty of the charged offense.
The punishment phase of Goodin's trial began the next day. The State called Dora and Beth to testify during the punishment phase and admitted three exhibits without objection. The State admitted pen packets from Goodin's 2001 felony convictions for burglary of a habitation and theft of a firearm for which Goodin served three years in prison, and his 2012 felony conviction for possession of a controlled substance for which he served two years in prison.
Dora testified that Goodin sexually assaulted her ten to fifteen times in 2007 when she was eight years old. The assaults always occurred in her mother's bedroom while her mother was at work. Her little sister, Beth, was present sometimes. Dora testified that she was scared Goodin would assault her again while he lived with her and her family. When asked how she felt about the past abuse, Dora testified that she "still [did not] know" how she felt, and she was still processing the experience.
Beth testified that Goodin also assaulted her approximately fifteen to twenty times by putting his penis in her mouth. The assaults, which occurred in her mother's bedroom and in the living room, always happened when her mother was at work. Dora witnessed some assaults. Beth also testified about the impact the assaults had on her relationships with her siblings. Beth testified the assaults affected her relationship with Dora "[a] little bit." When asked about her half-brother, John, who was very young when the assaults occurred, Beth testified that they were not close and did not really get along, but she still loved him, and they were close at the time of trial. Beth explained that although she knew John had nothing to do with the assaults, the fact that Goodin was John's father made it difficult for her to be around her half-brother. Beth had been nervous about telling her mother that Goodin had assaulted her but once she did, she felt relieved because her mother believed her and Dora. Beth testified that she still thinks about what Goodin did to her sometimes and she feels "disgusted with" herself, but she tries not to let it get to her and she reminds herself that it was not her fault. Goodin's counsel did not cross-examine Beth or Dora or call any witnesses on Goodin's behalf.
In closing, trial counsel reminded the jurors of his continued obligation to represent Goodin and the broad range of punishment, and he asked the jury to assess Goodin's punishment at twenty-five years or less. He did not discuss any mitigating circumstances that would warrant a lesser sentence. Instead, trial counsel asserted that it was his role at punishment "to try to make it as least bad as possible." He asked jurors to "consider everything that you have seen and heard," and he argued that if they "look[ed] at the whole thing closely" they would "see that [trial counsel's proposed sentence of twenty-five years or less is] a reasonable penalty range." Trial counsel concluded by arguing, "All I can ask is now for just one last measure of redetermination, try to get it to the point where it's not so bad. . . I'm going to ask you to at least consider what I asked you to do and do something within that range." Trial counsel did not address any specific evidence in the case or factors that might impact the jury's assessment of Goodin's punishment.
Citing to Goodin's criminal history including his 2001 felony convictions for burglary of a habitation and theft of a firearm, and his 2012 felony conviction for possession of a controlled substance, the State argued that Goodin continued to offend without learning his lesson and he was not entitled to redemption. The State argued that Beth and Dora would have to live with the lasting impact the assaults had on them for the rest of their lives "and for that [Goodin] should have to spend the rest of his in prison where he can never do that to another child again." The State asked the jury to assess Goodin a minimum sixty-year sentence and a $10,000 fine.
In one enhancement paragraph, the State alleged that Goodin had been found guilty in 2001 of the felony of burglary of a habitation. Because the jury found the enhancement paragraph to be true, the applicable punishment range was not less than fifteen years or more than ninety-nine years or life, plus a fine not to exceed $10,000. The jury assessed Goodin's punishment at sixty years' imprisonment and a $10,000 fine.
If the jury had found the enhancement was not true, the applicable punishment range would have been life or for any term of not less than five years or more than ninety-nine years, plus a fine not to exceed $10,000. Tex. Penal Code § 12.32 (first degree felony).
B. Motion for New Trial
Goodin's appellate counsel moved for new trial on the grounds of ineffective assistance of counsel. Specifically, Goodin alleged that his trial counsel was ineffective because he "failed to investigate and prepare adequately for the trial, by failing to interview and present witnesses who could have provided evidence to support Goodin's version of the allegations presented by the state," and "failed to properly investigate for the punishment phase of the trial" because he did not contact any potential witnesses or call any witnesses at trial to testify on Goodin's behalf. Goodin attached four exhibits to his motion for new trial: (1) an affidavit from Margaret Wallace, (2) an affidavit from Jeffrey Cornejo, (3) the case voucher and the payment voucher for attorney's fees for Goodin's trial counsel, and (4) an affidavit from Goodin.
Goodin's trial counsel filed an affidavit with the trial court in response to the motion for new trial. In his affidavit, trial counsel asserted:
Although it was not admitted during the hearing on Goodin's motion for new trial, trial counsel's affidavit was treated as an exhibit during the hearing and Goodin treats the affidavit as evidence on appeal. See Amador v. State, 221 S.W.3d 666, 673-74 (Tex. Crim. App. 2007) ("Sometimes the parties may treat an exhibit, document, or other material as if those items had been admitted into evidence, even though they were never formally offered or admitted in the trial court."); Cornish v. State, 848 S.W.2d 144, 145 (Tex. Crim. App. 1993) (holding such evidence "may be considered on appeal as if admitted"). Therefore, we will treat trial counsel's affidavit as evidence for purposes of this appeal.
My preparation for the case consisted of downloading and reviewing the file from the Harris County District Attorney's website. The Court's file should show a courts discovery log of everything provided
to me in this cause. Additionally, I attempted to research the complainants on social media.
. . .
The facts of the case were that the incidents always happened at home when no one else was there except for Goodin and the two complainants. Additionally, both complainants were present during the events that happened to the other one.
I did not interview the complainants but did view their CAC video interviews. Which is a common practice in these cases. I did not hire an investigator because the only fact witnesses were the complainants. Their mother did not see any of the events and only testified about the disclosure. Mr. Goodin did not inform me of any other witnesses. I did ask him if he had any family to contact and he never told me of anyone. Nor did he ever mention anything about receiving an inheritance.
The case voucher and the payment voucher for attorney's fees attached to Goodin's motion for new trial reflect trial counsel spent nineteen out-of-court hours working on Goodin's case: four hours of legal research, seven hours of "records research," five hours reviewing Dora's and Beth's CAC videos, and three hours visiting with Goodin in jail.
In his affidavit, Goodin stated:
I do not believe Mr. Smith provided me effective assistance of counsel in several ways. I do not feel that he was prepared for trial. He never investigated any possible motives for the complainants ([Dora] and [Beth]) to make false allegations about me. I believe that [Dora] and [Beth] were angry that I confronted them about hurting my son [John], and that they were getting revenge by accusing me. The outcry about the allegations occurred on the very same day that I had confronted [Dora] and [Beth] about hitting and injuring my son [John]. I had not been living with them for over 8 years when the outcry happened. Mr. Smith hired no investigator to look into these events, which were important to establish an ulterior motive to accuse me of these crimes.
Mr. Smith never had an investigator talk to me about these things, and never talked to me at all about the facts of the case, or my side of the story.
At trial, he was unprepared, and did not even know my son's name. He repeatedly called [Dora] and [Beth] by the wrong names. He did not seem to have knowledge of the basic facts of the case. He never prepared me to testify on my behalf at trial. He advised me not testify about 2 days before trial, but had never even asked me any questions or prepared me to testify at trial.
Mr. Smith never asked me or investigated any potential witnesses to testify on my behalf at trial and in the punishment phase of trial. He never contacted my brother, Jeffrey Cornejo, or any of my family members. He never contacted Gary Williams, whom I lived with, or his sons. No one testified on [my] behalf at either part of the trial. I know that my brother and Mr. Williams would have come to testify on my behalf if they had been contacted. Mr. Smith never contacted anyone to testify about my life history, work history, or any of the things about me and my character.
Appellant did not submit an affidavit from Gary Williams, and he does not argue on appeal that his trial counsel was ineffective because he did not contact Williams.
In the handwritten portion of his affidavit, Goodin further stated: "We were all together for my son's ninth birthday [June 2015] and everything was normal we went to Schlitterbahn in Galveston and had a good time not until confronted about hitting my son did these accusations come about."
Jeffery Cornejo ("Cornejo"), Goodin's older half-brother, stated in his affidavit that he, Goodin, and their two other brothers lived with their mother until she went to jail when Goodin was about seven years old. He stated that:
During the time we were living with my mother, we had an unstable home life and moved frequently. Sometimes we did not even unpack
between moves. My mother was addicted to prescription medication and had problems paying the bills. Sometimes she would be up for days and then sleep for days. Eventually she went to jail and we were sent to live with [Goodin's] father in Wisconsin. We all spent most of our time there performing various chores on the farm. My brother Brandon and I were only in Wisconsin for about a year before returning to live with family members in Texas. [Goodin] and my younger brother, Spencer, lived in Wisconsin for approximately three years. We all returned to live with our mother when she was released from jail.
[Goodin] was a nice, sweet kid growing up and did not get into trouble when he was in school. When I got older, I would bring him to my apartment to spend the weekend just to give him some supervision and positive interaction with an adult.
I met [Goodin's] son and the mother of his son around 2007. Seeing [Goodin] interact with his son is one of the reasons I believe these allegations could be untrue. Later on, I became aware that [Goodin] and his son's mother had broken up. We discussed the problems they were having. He described her as being "crazy" and explained that she was not allowing him to see his son. I encouraged him to take her to court, but [Goodin] is just not a fighter.
Around the time [Goodin] inherited some money from our mother's estate, I received a Facebook message from someone named [Dora]. She stated she was the sister of [Goodin's] son, [John]. She claimed [John] was interested in knowing more about his father's side of the family. After considering the problems [Goodin] was having with [John's] mother and recalling that he told me that once she gets into your life, you will never get her out, I decided not to respond to the message.
I was never contacted by [Goodin's] trial attorney or asked to come to court to testify on [Goodin's] behalf. I would have been willing to testify at [Goodin's] trial if I had been asked. I would have testified about [Goodin's] unstable family life as a child, that he was always a good kid and did not get into trouble until he was an adult, in spite of his unstable home life. I also could have testified about the problems [Goodin] was having with the mother of [John].
Cornejo crossed out a typed assertion of knowledge of Goodin's problems with the Dora and Beth, writing, "[Goodin] never spoke about the girls or that [John] had sisters-I didn't know about them." Cornejo stated that Goodin had received an inheritance from his mother's estate and that the allegations made after Goodin received the inheritance "seemed questionable." Cornejo further averred:
My testimony would have included the fact that I was contacted on Facebook by one of the girls who accused [Goodin] of this charge asking me to contact his son. I would also been able to testify to the fact that I could not support [Goodin] if I believed he committed this act.
In her affidavit, Margaret Wallace ("Wallace") stated she was Goodin's friend and had known him for about two years before he was arrested in 2019. Wallace had also dated Goodin for six months during this two-year period.
[Goodin] and I both worked at IHOP. I had just picked him up from work on the night he was arrested. It was obvious to me that [Goodin] was shocked when the officer told him that he was being arrested for Sexual Assault of a Child. I could not believe he was charged with that offense and do not believe he is capable of doing this to a child. He was around my roommates' four girls, ranging in age between one year through thirteen years, frequently while we were dating. He also was around our friends' children during our relationship. I never noticed any unusual behavior when he was around these children and none of the children ever complained about him doing anything inappropriate to them. [Goodin] has always been a very sweet person. He is a sincere, caring person. He was doing well at the time of his arrest, working and paying his bills.
Wallace further stated that:
The attorney never contacted me or asked me to come to court to testify on [Goodin's] behalf I would have been willing to testify at [Goodin's]
trial if l had been asked. I could have told the court and jury that [Goodin] is a kind person and it would be out of character for him to commit this type of crime. Additionally, I would have told them I have never observed anything in [Goodin's] behavior when he was around children and females that would indicate he is capable of committing this offense.
After a hearing, the trial court denied Goodin's motion for new trial. This appeal followed.
Ineffective Assistance of Counsel
In his first issue, Goodin argues trial counsel was ineffective because he conducted no investigation into the facts of the case or into any mitigating evidence. According to Goodin, his trial counsel's failure to investigate was harmful because had he undertaken an investigation, his trial counsel would have uncovered (1) evidence Dora had a motive to fabricate her outcry, and (2) mitigation evidence for the punishment phase of trial.
A. Standard of Review
To prevail on a claim of ineffective assistance of counsel, the defendant must show (1) counsel's performance was deficient, and (2) a reasonable probability exists that, but for counsel's deficient performance, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687, 694 (1984). The defendant bears the burden of proof on both issues, and failure to make either showing by a preponderance of the evidence will defeat an ineffective assistance claim. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). The right to effective assistance of counsel does not mean a defendant has a right to errorless counsel, but rather to representation that is objectively reasonable. Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011).
When evaluating a claim of ineffective assistance, appellate courts look to the totality of the representation and the circumstances of each case. See Thompson, 9 S.W.3d at 813. There is a strong presumption that trial counsel rendered reasonable professional assistance. See Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005). To overcome the presumption, "[a]ny allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness." Thompson, 9 S.W.3d at 813. Any judicial review must be highly deferential to trial counsel and avoid the distorting effects of hindsight. Ingham v. State, 679 S.W.2d 503, 509 (Tex. Crim. App. 1984) (citing Strickland, 466 U.S. at 669).
If a criminal defendant establishes that his trial counsel's performance was deficient, he must still prove he was prejudiced by his counsel's actions. Thompson, 9 S.W.3d at 812. The defendant must establish with reasonable probability that had his trial counsel acted professionally, the result of the proceeding would have been different. Id. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001).
Factors courts consider to determine "whether a defendant has established Strickland prejudice during the punishment phase of non-capital cases as a result of deficient attorney performance of any kind" include (1) whether the defendant received the maximum sentence, (2) any disparity between the sentence imposed and the sentence requested by the parties, (3) the nature of the offense charged and the strength of the evidence presented at trial, (4) the egregiousness of the error, and (5) the defendant's criminal history. Lampkin v. State, 470 S.W.3d 876, 922 (Tex. App.-Texarkana 2015, pet. ref'd). "Where deficient performance arises from counsel's failure to investigate and introduce mitigating evidence," courts also consider the following non-exclusive factors:
(1) whether mitigating evidence was available and, if so, whether the available mitigating evidence was admissible, (2) the nature and degree of other mitigating evidence actually presented to the jury at punishment, (3) the nature and degree of aggravating evidence actually presented to the jury by the State at punishment, (4) whether and to what extent the jury might have been influenced by the mitigating evidence, (5) whether and to what extent the proposed mitigating evidence serves to explain the defendant's actions in the charged offense, and (6) whether and to what extent the proposed mitigating evidence serves to assist the jury in determining the defendant's blameworthiness.Id.
When a defendant asserts ineffective assistance in a motion for new trial, we review the trial court's denial of the motion for abuse of discretion. Parker v. State, 462 S.W.3d 559, 562 (Tex. App.-Houston [14th Dist.] 2015, no pet.). We view the evidence in the light most favorable to the ruling and reverse only if no reasonable view of the record could support the ruling. Id. "We do not substitute our judgment for that of the trial court; rather, we decide whether the trial court's decision was arbitrary or unreasonable." Esquivel v. State, No. 01-16-00301-CR, 2017 WL 3910793, at *6 (Tex. App.-Houston [1st Dist.] Sept. 7, 2017, pet. ref'd) (mem. op., not designated for publication). We review de novo the trial court's decision on the prejudice prong while giving deference to the trial court's implied resolution of the underlying factual determinations supporting denial of the motion when based solely on affidavits. See Charles v. State, 146 S.W.3d 204, 208 (Tex. Crim. App. 2004).
Absent factual findings regarding the denial of a motion for new trial, a reviewing court implies findings that support the trial court's ruling on the motion when such implicit findings are both reasonable and supported in the record. See Esquivel, 2017 WL 3910793, at *6. A trial court "is the sole factfinder and judge of appellant's and counsel's credibility at the motion for new trial hearing, both during live testimony and in affidavits." Riley v. State, 378 S.W.3d 453, 459 (Tex. Crim. App. 2012), overruled on other grounds by Miller v. State, 548 S.W.3d 497 (Tex. Crim. App. 2018). "This same deferential review" applies even to uncontroverted affidavits and a trial court is "free to disbelieve an affidavit, especially one unsupported by live testimony." Riley, 378 S.W.3d at 457. If there are two permissible views of the evidence, the trial court's choice between them cannot be held to be clearly erroneous. Id. Thus, a trial court abuses its discretion in denying a motion for new trial only when no reasonable view of the record could support the trial court's ruling. Id. at 457-58; Webb v. State, 232 S.W.3d 109, 112 (Tex. Crim. App. 2007).
B. Assistance of Counsel During Guilt Phase
Appellant argues his trial counsel was ineffective during the guilt phase of trial because (1) "[h]is complete failure to investigate the case was not only unreasonable in and of itself; it threw him into trial unprepared to make reasonable decisions about the evidence," (2) "his lack of investigation rendered his sole weapon-cross-examination-useless," (3) he "failed to hire an investigator to explore the history and background of the complainants," (4) he "failed to ask anyone in Mr. Goodin's family, or anyone else, about his life history, work history, mental health history, or any of his good or important qualities that could have been testified about to the judge or a jury on Mr. Goodin's behalf," and (5) he failed to call Cornejo as a witness.
1. Failure to Investigate
An attorney representing a criminal defendant has a duty to make a reasonable investigation. Wiggins v. Smith, 539 U.S. 510, 521-22 (2003); McFarland v. State, 928 S.W.2d 482, 501 (Tex. Crim. App. 1996), overruled on other grounds by Mosley v. State, 983 S.W.2d 249 (Tex. Crim. App. 1998). A "decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments." Wiggins, 539 U.S. at 521-22. We will reverse a conviction for failure to investigate only if the failure to investigate resulted in the only viable defense available to the accused not being advanced, and there is a reasonable probability that, but for counsel's failure to advance the defense, the trial's outcome would have been different. McFarland, 928 S.W.2d at 501 (citing Strickland, 466 U.S. at 694); see also Donald v. State, 543 S.W.3d 466, 477 (Tex. App.-Houston [14th Dist.] 2018, no pet.) (citing McFarland, 928 S.W.2d at 501).
We first note that this is not a case in which trial counsel conducted no investigation into the case, as Goodin argues. Goodin's own evidence-the case voucher and the payment voucher for trial counsel's attorney's fees-demonstrates that trial counsel investigated the charge pending against Goodin, although not to the degree Goodin would have liked. The evidence reflects that trial counsel met with Goodin at the jail for three hours, watched Dora's and Beth's videotaped interviews with CAC, and conducted several hours of "records research" and "legal research." Trial counsel also averred in his affidavit that he reviewed the State's files, "attempted to research [Beth and Dora] on social media," and "view[ed] their CAC video interviews." The question thus presented is whether trial counsel's decision to limit his investigation to those sources was objectively reasonable.
Even were we to conclude that trial counsel's decision to not investigate further was not objectively reasonable, we cannot reverse on that basis unless Goodin establishes that his counsel's failure to investigate deprived Goodin of his only viable defense, and there is a reasonable probability that, but for counsel's failure to advance the defense, the trial's outcome would have been different. McFarland, 928 S.W.2d at 501 (citing Strickland, 466 U.S. at 694). Goodin has not established that he was deprived of his only viable defense or that but for his trial counsel's alleged failure to investigate, the results would have been different.
At trial, Goodin's counsel put forth a defense based on his limited investigation into the case. During cross-examination, trial counsel elicited testimony from Dora that she was angry with Goodin because, on the day Goodin picked John up at the house (in 2014), she and Goodin argued and he told her she was acting like a little girl. When asked why she told her mother about the abuse the same day she argued with Goodin, Dora testified that she told her mother about the abuse because she was mad at Goodin. In closing, trial counsel argued that there was no evidence corroborating Dora's and Beth's testimony that Goodin forced Dora to perform oral sex on him and pointed out that this type of "allegation [raised several years after the incident is] extremely easy to fabricate because you're not going to expect to find any [evidence]." Although trial counsel did not identify the reason Dora would falsely accuse Goodin of sexual abuse, the State understood that trial counsel was arguing that Dora fabricated her claim of abuse because she was mad at Goodin. In closing, the State argued:
In 2014, yeah, [Dora] was angry that day when she got into an argument with the defendant. Because as the defense attorney asked her, he called her a little girl or treated her like a little girl. He wasn't treating her like a little girl when he stuck his penis inside of her mouth when she was 8 years old. So, yeah, she was angry when he was treating her like that way now. She was angry when he was coming around like nothing happened. Of course she was angry, but she did not lie about what happened.
Had the jury believed trial counsel's claim that Dora fabricated her claim, the jury would have acquitted Goodin of the charged offense. Thus, Goodin's trial counsel advanced a fabrication defense that, if believed, would have resulted in an acquittal. Because Goodin was not deprived of the only viable defense available to him, we cannot reverse his conviction based on trial counsel's alleged failure to investigate. See McFarland, 928 S.W.2d at 501; Donald, 543 S.W.3d at 477.
Goodin's argument that his trial counsel was ineffective because his lack of preparation "denied [him] the right to effective cross-examination" is also unavailing. The Sixth Amendment to the United States Constitution guarantees the right of an accused in a criminal prosecution "to be confronted with the witnesses against him," which includes the right of cross-examination. U.S. Const. amend. VI; Davis v. Alaska, 415 U.S. 308, 315 (1974). Citing to Davis v. Alaska, 415 U.S. 308 (1974), Goodin argues on appeal that his trial counsel's "lack of investigation rendered his sole weapon-cross-examination-useless. His conduct denied [Goodin] the right to effective cross-examination. This is 'constitutional error of the first magnitude and no amount of showing of want of prejudice [can] cure it.""
The Sixth Amendment states:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.U.S. Const. amend. VI.
Goodin's reliance on Davis is misplaced. In Davis, which does not involve an ineffective assistance claim, the trial court issued a protective order prohibiting the defendant's counsel from questioning a State witness about the witness' juvenile record. Defense counsel sought to show the existence of possible bias and prejudice of the witness using this evidence. The U.S. Supreme Court held the defendant was "denied the right of effective cross-examination" and reversed the defendant's convictions and remanded for further proceedings. Id. at 318.
Unlike in Davis, Goodin has not identified questions or lines of inquiry his trial counsel would have advanced on cross-examination had he investigated more thoroughly. Nor does he claim his trial counsel was precluded from cross-examining witnesses. Indeed, the record reflects that trial counsel cross-examined Iris, Dora, and Beth on the motive Goodin identified in his affidavit, namely, that Dora and Beth were angry because Goodin confronted them about John's injuries and they "were getting revenge by accusing" him of sexual assault.
During cross-examination, trial counsel elicited testimony from Dora that she and Goodin argued when he picked up John at the house in 2014, because John had gotten hurt at a birthday party she had attended with John earlier that day. Dora denied hurting John. She also testified that she was angry with Goodin because he told her she was acting like a little girl during their argument. Dora testified that she told her mother about the abuse because she was mad at Goodin.
Trial counsel also cross-examined Iris and Beth on this point. Iris testified she believed Goodin and Dora argued when Goodin brought John home, but she did not hear the argument, she only heard Goodin "burn[ing] rubber" and driving off quickly afterward. According to Iris, "[s]omething must have happened." Beth testified she could not remember whether Goodin and Dora argued but she heard tires squealing. Iris and Beth did not remember John getting hurt or going to a party.
Based on the foregoing, we conclude trial counsel was not precluded from cross-examining witness, and thus, Goodin did not establish that his Sixth Amendment right to confrontation was violated. Moreover, Goodin did not argue to the trial court that he was denied the right of effective cross-examination or that his trial counsel was ineffective because his failure to investigate the case and prepare for trial rendered his cross-examination of the State's witnesses "useless." Because Goodin did not raise these arguments below in his motion for new trial, the trial court never had an opportunity to consider them, and Goodin may not raise them for the first time on appeal. See Ex parte Hollowell, No. 03-11-00240-CR, 2012 WL 1959309, at *4 (Tex. App.-Austin June 1, 2012, pet. ref'd) (mem. op., not designated for publication) (holding applicant who had argued below that his counsel was infective for failing "to file a motion for a hearing to hear filed motions" did not preserve complaints of ineffective assistance "due to any of the other alleged failures of counsel" he raised for first time on appeal); see generally Sharper v. State, 485 S.W.3d 612, 615 (Tex. App.-Texarkana 2016, pet. ref'd) ("Even a defendant's right to confrontation and cross-examination may be lost if not properly preserved.").
Goodin's argument that his counsel was ineffective because he "failed to hire an investigator to explore the history and background of the complainants" also fails. "[T]o establish [a] failure to investigate claim, [a defendant] must allege with specificity what the investigation would have revealed and how it would have benefitted him." United States v. Glinsey, 209 F.3d 386, 393 (5th Cir. 2000). Goodin has not identified what specific information the investigator would have found regarding Beth's and Dora's "history and background," much less explained how such information would have benefited him during the guilt phase. See id.
2. Failure to Call Witnesses
Goodin also argues his trial counsel was ineffective during the guilt phase because he "failed to ask anyone in [Goodin's] family, or anyone else, about his life history, work history, mental health history, or any of his good or important qualities that could have been testified about to the judge or a jury on [Goodin's] behalf." Citing to Cornejo's affidavit, Goodin further contends that Cornejo "could have testified at the guilt/innocence phase of trial as to issues regarding the motive or veracity of the claims made by witnesses" and therefore trial counsel's failure to call Cornejo as a witness during the guilt phase constitutes ineffective assistance of counsel.
Counsel's failure to investigate these issues and call Cornejo to testify about them constitutes ineffective assistance only if Cornejo was available to testify and the omitted evidence would have benefited Goodin. See Pinkston v. State, 744 S.W.2d 329, 332 (Tex. App.-Houston [1st Dist.] 1988, no pet.) ("An attorney's failure to investigate or present witnesses will be a basis for establishing ineffective assistance of counsel only where it is shown that the witnesses would have been available and that the presentation of the evidence would have benefitted appellant."). Although Cornejo averred in his affidavit that he would have been willing to testify at Goodin's trial, he did not assert he would have been available to do so. See Ex Parte Ramirez, 280 S.W.3d 848, 853 (Tex. Crim. App. 2007) (stating proposed witnesses must testify or swear in affidavit that they were available to testify at defendant's trial to satisfy availability requirement). Without evidence of Cornejo's availability to testify at trial, Goodin cannot establish that trial counsel's failure to call him to testify constitutes ineffective assistance. See Pinkston, 744 S.W.2d at 332 ("An attorney's failure to investigate or present witnesses will be a basis for establishing ineffective assistance of counsel only where it is shown that the witnesses would have been available and that the presentation of the evidence would have benefitted appellant.").
Goodin does not specifically identify anyone other than Cornejo as a potential witness during the guilt phase.
Goodin does not argue that trial counsel's failure to call Wallace as a witness during the guilt phase constitutes ineffective assistance. And even if he had, Goodin would not prevail because, like Cornejo, Wallace did not swear she would have been available to testify at Goodin's trial. See Ex Parte Ramirez, 280 S.W.3d 848, 853 (Tex. Crim. App. 2007) (stating proposed witnesses must testify or swear in affidavit that they were available to testify at defendant's trial to satisfy availability requirement).
Furthermore, trial counsel's failure to investigate or present Cornejo's testimony is only ineffective if Cornejo's testimony would have benefited Goodin. Goodin generally asserts that Cornejo would have testified at the guilt phase of trial "as to issues regarding the motive or veracity of the claims made by witnesses" without further elaboration. In his affidavit, Cornejo averred that if he had been called, he could have testified about the problems Goodin was having with Iris. He stated: "Later on, I became aware that [Goodin] and his son's mother had broken up. We discussed the problems they were having. He described her as being 'crazy' and explained that she was not allowing him to see his son. I encouraged him to take her to court, but [Goodin] is just not a fighter." Had it been presented, such testimony would have constituted inadmissible hearsay because Cornejo only learned about these facts from Goodin. See Tex. R. Evid. 802; Coleman v. State, 188 S.W.3d 708, 724-25 (Tex. App.-Tyler 2005, pet. ref'd) (stating trial counsel cannot be ineffective for failing to offer inadmissible evidence). Thus, the testimony cannot support an ineffective assistance of counsel claim.
Goodin contends Cornejo could have testified regarding the "veracity" of Dora's and Beth's claims. Under Texas Rule of Evidence 608(a), a party may attack a witness's credibility "by testimony about the witness's reputation for having a character for truthfulness or untruthfulness, or by testimony in the form of an opinion about that character." Tex. R. Evid. 608(a) ("A witness's credibility may be attacked or supported by testimony about the witness's reputation for having a character for truthfulness or untruthfulness, or by testimony in the form of an opinion about that character. But evidence of truthful character is admissible only after the witness's character for truthfulness has been attacked."); see generally Webb v. State, 557 S.W.3d 690, 695 (Tex. App.-Texarkana 2018, pet. ref'd). In his affidavit, Cornejo admitted that he did not know Dora or Beth and Goodin never mentioned the girls to him. Notably, Cornejo did not aver that he could have offered an opinion as to their character or that he knew their reputation for having a character for truthfulness or untruthfulness. ("[Goodin] never spoke about the girls or that [John] had sisters-I didn't know about them."). Thus, Cornejo could not have testified about the girls' reputations for truthfulness and given that he did not know Beth or Dora, the trial court reasonably could have disbelieved such testimony. See Riley, 378 S.W.3d at 458 (stating that as "sole factfinder and judge" trial court is "free to disbelieve an affidavit, especially one unsupported by live testimony").
Cornejo further averred that if he had been called, he could have testified "that the allegations [of sexual abuse] were made after [Goodin] received his inheritance from our mother's estate. My testimony would have included the fact that I was contacted on Facebook by one of the girls who accused [Goodin] of this charge asking me to contact his son." Cornejo also stated that the timing "seemed questionable." Although he does not expressly state as much on appeal, Goodin presumably believes this information is relevant because it has a tendency to make it more probable that Dora fabricated her claim of abuse. Tex. R. Evid. 401 ("Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action."). But there is no evidence Dora knew about the inheritance and Goodin does not articulate how Cornejo's assertion that Dora asked him to contact John demonstrates that Dora had a motive to lie about the alleged abuse.
Cornejo further stated that if he had been called, he could have testified about Goodin's "unstable family life as a child, that he was always a good kid and did not get into trouble until he was an adult, in spite of his unstable home life." Cornejo referred to Goodin as "a nice, sweet kid growing up" who "did not get into trouble when he was in school." Finally, Cornejo stated that he would have testified "to the fact that I could not support [Goodin] if I believed he committed this act" and he stated, "[s]eeing [Goodin] interact with his son is one of the reasons I believe these allegations could be untrue."
Texas Rule of Evidence 404(a)(2)(A) allows a defendant to bring his character into issue during the guilt phase of trial by introducing appropriate character or reputation evidence. Tex. R. Evid. 404(a)(2)(A) ("In a criminal case, a defendant may offer evidence of the defendant's pertinent trait, and if the evidence is admitted, the prosecutor may offer evidence to rebut it."). Among other things, a defendant charged with aggravated sexual assault of a child is "entitled to proffer evidence of his good character (or propensity) for moral and safe relations with small children or young girls." Wilson v. State, 451 S.W.3d 880, 886 (Tex. App.-Houston [1st Dist.] 2014, pet. ref'd) (quoting Wheeler v. State, 67 S.W.3d 879, 882 (Tex. Crim. App. 2002)). If evidence of a person's character or character trait is admissible under Rule 404(a)(2)(A), "proof may be made through reputation or opinion testimony." Melgar v. State, 236 S.W.3d 302, 308 (Tex. App.-Houston [1st Dist.] 2007, pet. ref'd) (emphasis in original) (citing Tex. R. Evid. 405(a)).
Goodin does not identify "his good or important qualities that could have been testified" to at trial, state who could have testified to any of "his good or important qualities," or provide any meaningful analysis with respect to how such evidence would have benefited him during the guilt phase. See generally Tex. R. Evid. 404(a)(2)(A) ("In a criminal case, a defendant may offer evidence of the defendant's pertinent trait. . ."). Goodin presumably alludes to Cornejo, the only potential witness he mentions in this section of his brief. But even if Cornejo's testimony would have been admissible during the guilt phase under Rule 404, such evidence may have been detrimental to Goodin because the State would have been allowed to introduce its own character evidence to rebut the implications of Goodin's character evidence. See Harrison v. State, 241 S.W.3d 23, 27 (Tex. Crim. App. 2007). This includes otherwise inadmissible evidence of extraneous bad acts or offenses, such as the over two dozen similar sexual assaults Goodin allegedly committed against Dora and Beth and Goodin's three prior convictions for the felony offenses of burglary of a habitation, theft of a firearm, and cocaine possession. Notably, such rebuttal evidence would have been in addition to Iris' testimony that Goodin moved out of the home after he "put his hands" on her and Beth's testimony that she was afraid of Goodin because he was aggressive.
Even had there been evidence that Cornejo was available to testify and even had the trial court found some of the admissible testimony credible, in light of the above, the trial court reasonably could have determined that the testimony Cornejo would have offered during the guilt phase would not have benefited Goodin, and thus, Goodin did not carry his burden of showing that trial counsel's performance during the guilt phase was deficient. For these same reasons, the trial court also could have found that the omitted evidence was not so compelling as to have had any effect on the jury's verdict and thus Goodin did not carry his burden of showing that he was prejudiced. See Strickland, 466 U.S. 668 at 694 (defendant must show reasonable probability exists that, but for counsel's deficient performance, result of proceeding would have been different).
Viewing the evidence in the light most favorable to the trial court's ruling, we hold the trial court did not abuse its discretion by denying Goodin's motion for new trial on the grounds that trial counsel's conduct constituted ineffective assistance of counsel during the guilt phase. See Parker, 462 S.W.3d at 562.
C. Assistance of Counsel During Punishment Phase
Goodin argues his trial counsel was ineffective during the punishment phase of trial because trial counsel did not investigate mitigating factors, contact potential mitigation witnesses, or present any mitigating evidence during the punishment phase. Even assuming without deciding that trial counsel's performance was deficient during the punishment phase, Goodin does not prevail on his ineffective assistance claim because he has not shown he was prejudiced by trial counsel's deficient performance.
To prove prejudice under Strickland, a defendant must demonstrate a reasonable probability that the result of the proceeding would have been different had trial counsel acted professionally. Strickland, 466 U.S. at 669; Thompson, 9 S.W.3d at 812. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Mallett, 65 S.W.3d at 63. As an appellate court, we assess "prejudice by reweighing the aggravating evidence against the totality of the mitigating evidence adduced both" at trial and in the motion for new trial. See Wiggins, 539 U.S. at 512. When reweighing the evidence, we ask whether the balance is shifted enough to create a reasonable probability "that the jury's assessment of punishment would have been less severe in the absence of defense counsel's deficient performance." Bazan v. State, 403 S.W.3d 8, 13 (Tex. App.- Houston [1st Dist.] 2012, pet. ref'd).
The indictment included one enhancement paragraph which alleged Goodin was convicted of the felony offense of burglary of a habitation in 2001. Because the jury found the enhancement paragraph to be true, the applicable punishment range was not less than fifteen years or more than ninety-nine years or life, plus a fine not to exceed $10,000. The jury assessed Goodin's punishment at sixty years' imprisonment and a $10,000 fine, which is the same as the State's proposed minimum sentence and well below the maximum sentence of ninety-nine years or life. See Lampkin, 470 S.W.3d at 919 (noting factors considered in assessing prejudice at punishment phase include whether defendant received maximum sentence and any disparity "between the sentence imposed and the sentence(s) requested by the respective parties").
With respect to the nature of the charged offense, Goodin was charged with and convicted of the felony offense of aggravated sexual assault of a child under fourteen years old. The evidence supporting the jury's finding of guilt was provided primarily by the complainant, Dora, and her sister, Beth, who were approximately eight and six years old when the assault occurred in 2007, and to a lesser extent, their mother Iris, the outcry witness. This evidence of guilt was compelling, but not especially strong given the lack of corroborating evidence, which was not required but would have strengthened the State's case. The case turned upon the witnesses' credibility and based on its finding of guilt, the jury found Dora and Beth to be credible.
During the punishment phase, Beth testified that Goodin had also sexually assaulted her by forcing her to perform oral sex on him, sometimes while Dora watched. According to Beth, this occurred approximately fifteen to twenty times in 2007. Dora testified that Goodin sexually assaulted her ten to fifteen times in 2007, as opposed to the single instance she testified to during the guilt phase. The State also presented evidence of Goodin's criminal history during the punishment phase, namely that Goodin had been convicted of three previous felony charges, including a crime of moral turpitude, but no other sexual offenses. See Ex parte De Los Reyes, 392 S.W.3d 675, 676 (Tex. Crim. App. 2013) (identifying theft as crime of moral turpitude).
In addition to the aggravating evidence presented during the punishment phase, Iris testified during the guilt phase that Goodin moved out of the home after he "put his hands" on her and Beth testified that she was afraid of Goodin because he was aggressive. The aggravating evidence, particularly the emotional testimony from Beth and Dora that Goodin repeatedly sexually assaulted both girls, is compelling and strong.
With respect to the proposed mitigating evidence, Goodin argues that Wallace and Cornejo would have testified on his behalf during the punishment phase of his trial. But there is no evidence that either Wallace or Cornejo was available to testify and we thus cannot consider their testimony when evaluating whether Goodin was prejudiced by trial counsel's alleged deficient performance during the punishment phase. See Ex parte McFarland, 163 S.W.3d 743, 758 (Tex. Crim. App. 2005) (holding defendant did not show prejudice where he failed to show witnesses available to testify); see also Gonzalez v. State, No. 01-12-01115-CR, 2014 WL 7205145, at *8 (Tex. App.-Houston [1st Dist.] Dec. 18, 2014, pet. ref'd) (mem. op., not designated for publication) (refusing to consider testimony from mitigating witnesses for purposes of prejudice when there was no evidence witnesses were available to testify).
Even if we were to consider Wallace's and Cornejo's testimony, Goodin still would not prevail. In her affidavit, Wallace stated:
I could not believe he was charged with that offense and do not believe he is capable of doing this to a child. He was around my roommates' four girls, ranging in age between one year through thirteen years, frequently while we were dating. He also was around our friends' children during our relationship. I never noticed any unusual behavior when he was around these children and none of the children ever complained about him doing anything inappropriate to them. [Goodin] has always been a very sweet person. He is a sincere, caring person. He was doing well at the time of his arrest, working and paying his bills.
She further stated that if she had been contacted by trial counsel she could have testified that:
[Goodin] is a kind person and it would be out of character for him to commit this type of crime. Additionally, I would have told them I have never observed anything in [Goodin's] behavior when he was around children and females that would indicate he is capable of committing this offense.
In his affidavit, Cornejo averred:
I was never contacted by [Goodin's] trial attorney or asked to come to court to testify on [Goodin's] behalf. I would have been willing to
testify at [Goodin's] trial if I had been asked. I would have testified about [Goodin's] unstable family life as a child, that he was always a good kid and did not get into trouble until he was an adult, in spite of his unstable home life. I also could have testified about the problems [Goodin] was having with the mother of [John].
Cornejo stated that Goodin had received an inheritance from his mother's estate. And he noted that Dora and Beth making sexual abuse allegations after Goodin received the inheritance "seemed questionable." Cornejo further averred:
My testimony would have included the fact that I was contacted on Facebook by one of the girls who accused [Goodin] of this charge asking me to contact his son. I would also been able to testify to the fact that I could not support [Goodin] if I believed he committed this act.
Even if the jury had found some of Cornejo's and Wallace's testimony credible, it is unlikely such generalized testimony would have influenced the jury's decision to assess Goodin's punishment at sixty years' incarceration. See Green v. State, 554 S.W.3d 785, 790 (Tex. App.-Houston [14th Dist.] 2018, no pet.) (stating "omitted mitigating evidence was not very compelling" because ["i]t merely established in the most general of terms that appellant fell into the wrong crowd as a teenager; that he became depressed while in prison; and that since being released from prison, he had become a churchgoing man who supported his family"); see also Gonzalez, 2014 WL 7205145, at *8 (concluding it was unlikely that testimony defendant was organized, responsible, and hard-working, and tried to give his family "a good future" would have affected punishment assessed).
The fact that Wallace did not meet Goodin until 2018, eleven years after the alleged assaults occurred, further diminishes the likely value of her proposed testimony. See Dillon v. State, No. 12-06-00135-CR, 2007 WL 4216253, at *5-6 (Tex. App.-Tyler Nov. 30, 2007, pet. ref'd) (mem. op., not designated for publication) (holding prejudice was not demonstrated and stating mitigating testimony from defendant's wife was not compelling given that she met defendant after he was indicted for charged offenses of aggravated sexual assault of a child and indecency with a child and her opinion that defendant was "honorable, truthful, and kind" and innocent of charged offenses "was based on a version of reality that the jury had rejected when it found Appellant guilty"). And Wallace's opinion that Goodin was not capable of sexually assaulting a child is also unlikely to have influenced the jury's assessment of punishment given that her opinion "was based on a version of reality that the jury had rejected when it found [Goodin] guilty." See id.
Cornejo's testimony also falls short. Cornejo's testimony that Goodin had been a good kid who moved around a lot as a child, had a mother who was addicted to prescription medication and did time in prison, and was working and paying his bills before he was arrested is not the type of compelling mitigating evidence courts have found likely to influence a jury. For comparison, in Lampkin v. State, 470 S.W.3d 876 (Tex. App.-Texarkana 2015, pet. ref'd), the defendant filed a motion for new trial in which he argued his trial counsel's conduct constituted ineffective assistance because he performed no investigation into the defendant's mental health or other mitigating factors, and he presented no mitigating evidence. During the hearing on Lampkin's motion for new trial, Lampkin introduced "over thirty entries from mental-health records" which "demonstrated that Lampkin had been homeless and impoverished, had diminished capacity, suffered from psychotic delusions and major depressive disorder, had attempted suicide, and had a long history of drug abuse." Id. at 924. The court of appeals found defense counsel's performance during the punishment phase was prejudicial. In doing so, the court noted, "The available mitigating evidence was likely to influence the jury and assist them in assessing the defendant's blameworthiness." Id. at 923; see generally Porter v. McCollum, 558 U.S. 30, 41 (2009) (finding prejudice when defense counsel failed to uncover and present mitigating evidence regarding "(1) Porter's heroic military service in two of the most critical-and horrific-battles of the Korean War, (2) his struggles to regain normality upon his return from war, (3) his childhood history of physical abuse, and (4) his brain abnormality, difficulty reading and writing, and limited schooling").
The evidence in this case is more like that in Green v. State, 554 S.W.3d 785 (Tex. App.-Houston [14th Dist.] 2018, no pet.). After he was convicted for indecency with a child, Green filed a motion for new trial alleging that his trial counsel had been ineffective by not conducting a more thorough investigation and by not presenting any mitigating evidence. Id. at 787. The court held Green failed to demonstrate that he was prejudiced by his trial counsel's failure to offer the mitigating evidence because the "evidence was not very compelling." Id. at 790. The court noted that the omitted evidence "merely established in the most general of terms that appellant fell into the wrong crowd as a teenager; that he became depressed while in prison; and that since being released from prison, he had become a churchgoing man who supported his family." Id. The court reasoned that even if the jury found such evidence credible, "it contrasted starkly with the emotional testimony of appellant's previous rape victim," and thus, "the trial court could have reasonably determined that the omitted evidence was not so compelling as to have had any effect on the jury's verdict." Id. (citing Ex parte Martinez, 195 S.W.3d 713, 730-31 (Tex. Crim. App. 2006) (holding that omitted evidence that defendant had been sexually abused as a child was unlikely to have had any effect on jury's verdict, given seriousness of his crimes)); see also Strickland, 466 U.S. at 700 (concluding mitigating evidence "that numerous people who knew respondent thought he was generally a good person and that a psychiatrist and a psychologist believed he was under considerable emotional stress that did not rise to the level of extreme disturbance" and "would barely have altered the sentencing profile presented to the sentencing judge").
The same is true here. None of the proposed mitigating evidence from Wallace or Cornejo explain why Goodin committed the charged offense or would have assisted the jury in determining Goodin's blameworthiness. As in Green, even if the jury had found Cornejo's and Wallace's evidence credible, the trial court reasonably could have concluded that "it contrasted starkly" with the girls' emotional testimony of sexual assault and thus, "the trial court could have reasonably determined that the omitted evidence was not so compelling as to have had any effect on the jury's verdict." See id. at 790.
The only mitigating evidence the jury was presented with was Iris' testimony during the guilt phase that Goodin visited with John after he moved out of the home. Iris also testified, however, that Goodin did not visit John "too often" because he had been "locked up during this process." And she testified that she filed for child support after Goodin moved out, "but he didn't show up" and she received "full custody."
Citing to Lopez v. State, 462 S.W.3d 180 (Tex. App.-Houston [1st Dist.] 2015, no pet.), Goodin nonetheless argues that prejudice is established by the mere fact his trial counsel did not investigate mitigating factors, contact potential mitigation witnesses, or present any mitigating evidence during the punishment phase. Id. at 189 (citing to Shanklin v. State, 190 S.W.3d 154, 165 (Tex. App.- Houston [1st Dist.] 2005, pet. dism'd)). We do not read Lopez or our prior opinion in Shanklin v. State, 190 S.W.3d 154, 165 (Tex. App.-Houston [1st Dist.] 2005, pet. dism'd), on which the court relied so narrowly.
Goodin does not argue that he was constructively denied counsel during the punishment phase and therefore prejudice must be presumed under United States v. Cronic, 466 U.S. 648, 659 (1984). Id. (stating prejudice is presumed when "the accused was denied the presence of counsel at a critical stage of trial").
In Lopez, Lopez's retained attorney filed a motion to withdraw on the day of trial. 462 S.W.3d at 182. There was no evidence in the record the motion was ever granted. Id. at 183. The record also reflected that rather than proceeding to trial, Lopez pleaded guilty without a sentencing recommendation that day, the trial court accepted the guilty plea, ordered a presentence investigation ("PSI"), and scheduled a sentencing hearing to occur two months later. Id. Afterwards, Lopez's attorney sent him a letter instructing him to gather supportive letters for the PSI to give the probation department during his interview, bring people with him to the sentencing hearing to testify on his behalf, and plan to meet with counsel fifteen minutes before the hearing began. Id. "[Trial counsel] gave no indication that he was willing to assist with interviewing potential witnesses or reviewing their statements before they were submitted." Id. This Court noted that "[t]he reasonable inferences from counsel's letter are that counsel had assigned to Lopez the task of identifying and contacting potential character witnesses and determining what should, and should not, be included in their character-reference letters-without any assistance from counsel-and that counsel's next involvement in the case would not be until the hearing." Id. at 187. We held "[t]he delegation of the important task of developing mitigation evidence [is] inconsistent with trial counsel's professional obligation to conduct a reasonable investigation into his client's background and to evaluate whether the information discovered would be helpful in mitigating against the State's evidence on punishment." Id.
As to prejudice, this Court observed that trial counsel presented no mitigating evidence during the punishment phase even though two witnesses would have testified favorably for Lopez and the PSI report, which counsel obtained at least ten days before trial, "contained information indicating that Lopez had a troubled background, including intellectual deficiencies that impacted his general intelligence, school performance, and decision-making," but counsel failed to highlight even one piece of this information to the trial court. Id. at 189. As a result, "[t]he only 'evidence' counsel offered at the sentencing hearing was his one-sentence statement to the trial court that his client wanted the court to know that he considered himself to be a good role model." Id. We held that:
Had trial counsel investigated and brought mitigating factors to the trial court's attention, that information would have been weighed against the aggravating factors in the case, which were significant, including the violence that was used to commit the robbery, indications that Lopez had been involved in other, recent robberies, and a criminal history that included drug possession, a separate theft conviction, a trespass conviction, and a previous aggravated robbery that resulted in a three-year sentence. Instead there was nothing to weigh against the strong aggravating factors.
By neither investigating nor presenting evidence for the trial court to consider in assessing punishment, trial counsel deprived Lopez of even a possibility of developing a mitigating defense. Thus, prejudice is established.Id. Thus, in evaluating whether Lopez was prejudiced by his counsel's deficient performance, we relied not only on the fact trial counsel had presented no mitigating evidence for the jury to consider, but also on the nature and degree of the aggravating evidence the State presented at punishment and the nature and strength of the omitted mitigating evidence. See Wiggins, 539 U.S. at 512 (stating courts "assesses prejudice by reweighing the aggravating evidence against the totality of the mitigating evidence adduced both" at trial and post-trial and noting "[t]he mitigating evidence counsel failed to discover and present here is powerful"); see also Lampkin, 470 S.W.3d at 922 (identifying factors courts consider when assessing prejudice during punishment phase).
Similarly, in Shanklin we observed that defense counsel had not investigated any possible mitigating factors, presented no mitigating evidence, and "failed to contact even a single family member or friend, despite knowing that favorable witnesses were available to testify." 190 S.W.3d at 165. We further noted that "there were no fewer than 20 witnesses available to testify" who would have testified to facts demonstrating Shanklin's "good character traits." Id. We held that:
[A]ppellant has demonstrated prejudice in this case, even though we cannot say for certain that appellant's character witnesses would have favorably influenced the jury's assessment of punishment. We have no doubt, however, that defense counsel's failure to interview or call a single witness, other than appellant, deprived him of the possibility of bringing out even a single mitigating factor. Mitigating evidence
clearly would have been admissible. The jury would have considered it and possibly have been influenced by it.Id. at 165-66 (citations omitted). Thus, in Shanklin, like in Lopez, we relied on more than just the fact trial counsel had presented no mitigating evidence for the jury to consider. In particular, our holding in Shanklin that the defendant had met his burden under Strickland to prove prejudice was also based on the nature and strength of the omitted mitigating evidence, specifically the twenty witnesses who would have testified to Shanklin's good character traits. Id.; see also Wiggins, 539 U.S. at 512; Lampkin, 470 S.W.3d at 922. Thus, Lopez and Shanklin do not stand for the proposition that prejudice is established merely by trial counsel's failure to investigate mitigating factors, contact potential mitigation witnesses, or present any mitigating evidence during the punishment phase.
Based on our review of the total aggravating and mitigating evidence in this case, we are not persuaded that a reasonable jury would have imposed a less severe punishment had it been presented with Goodin's proposed mitigation evidence. See Wiggins, 539 U.S. at 512; Bazan, 403 S.W.3d at 13. We thus conclude Goodin failed to demonstrate a reasonable probability that but for trial counsel's deficient performance the jury would have assessed his punishment differently. See Strickland, 466 U.S. at 669.
We overrule Goodin's first issue.
Reformation of the Judgment
In his second issue, Goodin argues the judgment should be reformed to show that he pleaded "not true" to the indictment's enhancement allegation. An appellate court has the power to correct and reform a trial court judgment to make the record speak the truth when it has the necessary data and information to do so. Nolan v. State, 39 S.W.3d 697, 698 (Tex. App.-Houston [1st Dist.] 2001, no pet.) (citing Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.-Dallas 1991, pet. ref'd)); see also French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992).
The indictment included one enhancement paragraph which alleged Goodin was convicted of the felony offense of burglary of a habitation in 2001. Although the trial court's judgment states Goodin pleaded "true" to the enhancement allegation, the record reflects Goodin pleaded "not true." The State agrees the judgment should be modified to reflect Goodin pleaded "not true" to the enhancement.
We sustain Goodin's second issue, and we modify the trial court's judgment to reflect that Goodin pleaded "not true" to the enhancement allegation. See Tex. R. App. P. 43.2(b) (authorizing appellate courts to modify judgment and affirm as modified); Nolan, 39 S.W.3d at 698.
Conclusion
We modify the trial court's judgment to reflect Goodin pleaded "not true" to the enhancement paragraph, and we affirm as modified.