Opinion
No. 11-03-00312-CR
November 4, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
Appeal from Taylor County.
OPINION
Danny Allen Haynes appeals his conviction by a jury of the offense of aggravated sexual assault. The trial court, finding two enhancement paragraphs true, assessed Haynes's punishment at 40 years in the Texas Department of Criminal Justice, Institutional Division. Haynes contends in four issues (1) that the trial court erred by overruling his objection to improper jury argument; (2) and (3) that fundamental error occurred due to the prosecutor's failure to provide the defense with exculpatory, mitigating, and impeaching evidence; and (4) that he was denied the effective assistance of counsel. We affirm. Haynes contends in issue one that the trial court erred by overruling his objection to im-proper jury argument. To be proper, jury argument must encompass summation of evidence presented at trial, reasonable deductions drawn from evidence, answers to opposing counsel's argu-ment, or plea for law enforcement. McFarland v. State, 989 S.W.2d 749, 751 (Tex.Cr.App. 1999). If a jury argument exceeds the bounds of proper argument, we must disregard the error unless it affected the defendant's substantial rights. TEX.R.APP.P. 44.2(b); Martinez v. State, 17 S.W.3d 677, 692 (Tex.Cr.App. 2000); Mosley v. State, 983 S.W.2d 249, 259 (Tex.Cr.App. 1998), cert. den'd, 526 U.S. 1070 (1999). A substantial right is affected when the error has a substantial and injurious effect or influence on the jury's verdict. King v. State, 953 S.W.2d 266, 271 (Tex.Cr.App. 1997). In construing the impact of improper jury argument under this test, we are to balance the following three factors: (1) severity of the misconduct (prejudicial effect), (2) curative measures, and (3) the certainty of conviction absent the misconduct. Martinez v. State, supra at 692-93. The prosecutor argued:
The next question, and I don't mean to simplify this at all for you, because your decision is going to be an important one and a difficult one. But it boils down to two things. Number one, was there consent? Was the act consensual? And if you find that it is, you have another question to ask yourselves and another decision to make. And that is, did the Defendant, by his acts and words place [the complainant] in fear of serious bodily injury or death that one of those two things might be imminently inflicted upon her at that time?Counsel for Haynes objected to the argument on the basis that it was a misstatement of the law because the charge included "without consent" as an element of each of the counts alleged in the indictment. The trial court overruled the objection. A person commits the offense of aggravated sexual assault by intentionally or knowingly causing the penetration of the sexual organ of another person by any means, without that person's consent, and the person by acts or words places the victim in fear that death or serious bodily injury would be imminently inflicted on any person. TEX. PENAL CODE ANN. § 22.021(a)(1)(A)(i) (a)(2)(A)(ii) (Vernon Supp. 2004-2005). Inasmuch as a lack of consent was an essential element of the offense, the prosecutor's argument was improper to the extent it might be construed as suggesting that the jury could convict Haynes even if the complainant consented to his sexual act. The complainant testified that she had known Haynes a long time and that, because it was cold, she had allowed him to spend the night on her couch. She said that, later, he got into her bed naked. She related that, when she asked him what he was doing, he replied: "You cannot tease a man all night." She indicated that, when she told Haynes to get out of her bed, he started trying to have sex and then strangled her when she screamed. The complainant testified that, as she was feeling herself passing out, she made kind of a croaking sound and shook her head yes. She stated that she did not plead with Haynes, deciding to just "lay [there], get it over with" because she wanted to live through it. Haynes acknowledged that he had had sex with the complainant but stated that it was consensual sex that she had initiated. He denied choking the complainant. The charge to the jury required a finding that Haynes's penetration of the complainant's sexual organ was without her consent and instructed the jury that an assault would be without a person's consent if the actor compelled the other person to submit or participate by the use of physical force or violence. The jury was confronted with two very different versions of the offense. Haynes's version indicated that the complainant consented to have sex with him because she wanted to have sex. The complainant's version indicated that the complainant went along with having sex with Haynes because he was strangling her and putting her in fear of death or serious bodily injury. Under the charge to the jury, Haynes's version would call for an acquittal, while the complainant's version would call for a conviction. The prosecutor acknowledged this when, amending her argument after the objection, she stated that the jury must find whether the sexual intercourse was consensual or not and referred to the complainant's testimony and demeanor as indicating that it was without consent and that the complainant was in fear of serious bodily injury or death. Counsel for Haynes acknowledged that when he argued that the jury would convict if it believed the complainant's version of the facts. The prosecutor's argument made no suggestion that Haynes could be convicted if the act of intercourse was consensual and without acts and words on Haynes's part that placed the complainant in fear of serious bodily injury or death. Taken in its entirety, it indicated that, if the complainant's testimony was true, the sexual assault was not consensual. When considering the record as a whole, it was obvious that a conviction or acquittal rested upon which version to believe, Haynes's consensual version or the complainant's version of a lack of consent due to the violence exerted by Haynes. Although the objection was overruled and the trial court gave no curative instruction, the prosecutor discontinued the argument about consent and focused on the fact that the jury should believe the complainant and that the complainant's testimony indi-cated that the assault was not consensual. The jury apparently believed the complainant's version of the facts. Based upon the charge, if it believed the complainant's testimony about the assault, it would have convicted the defendant even in the absence of the prosecutor's error. Considering these factors in light of the full record, we conclude that the prosecutor's improper argument did not have a substantial and injurious effect or influence in determining the jury's verdict and, therefore, did not affect Haynes's substantial rights. In urging that the error requires a new trial, Haynes relies upon the cases of Davis v. State, 506 S.W.2d 909, 911 (Tex.Cr.App. 1974), and Cook v. State, 540 S.W.2d 708, 710 (Tex.Cr.App. 1976). We find both of these cases to be distinguishable. In Davis, the prosecutor made several statements contrary to the law clearly indicating that the defendant was not entitled to the defense of accident in a prosecution for murder if, at the time, the defendant was engaged in an unlawful act. Davis v. State, supra at 911. The court found the error to be prejudicial. Id. In this case, as we have stated, any error in the jury argument was not prejudicial because, when the record as a whole is considered, it was clear that conviction or acquittal depended upon whether the jury believed the complainant's version of the facts or that of Haynes. In Cook, the court found that a prosecutor's continued suggestion that Roger Cook (the defendant's brother) had nothing to lose in admitting that he possessed the heroin, which was found in defendant Harry Cook's car underneath the driver's seat where Roger was sitting, because he could not receive a higher sentence on retrial of his case than he had already received was incorrect. Cook v. State, supra at 710. The court, noting the State's persistence in making this argument and other questionable arguments, concluded that the erroneous argument could not be considered harmless. Id. at 710-11. As previously noted, the prosecutor in the case at bar did not make an argument that Haynes could be convicted even if his intercourse with the complainant was consensual and unaccompanied by acts or words on his part placing her in fear that death or serious bodily injury would be immediately inflicted. Also, considering the record as a whole, we have found that the argument did not have a substantial and injurious effect or influence on the jury's verdict. We overrule issue one. Haynes asserts in issue two that fundamental error occurred when the State failed to provide him with a police report in its possession showing that the complainant was possibly intoxicated at the time of the offense and that this failure was in violation of Brady v. Maryland, 373 U.S. 83 (1963). To find reversible error under Brady, a defendant must show that (1) the State failed to disclose evidence, regardless of the prosecution's good or bad faith; (2) the withheld evidence is favorable to him; (3) the evidence is material, that is, there is a reasonable probability that, had the evidence been disclosed, the outcome of the trial would have been different. Hampton v. State, 86 S.W.3d 603, 612 (Tex.Cr.App. 2002). In the case at bar, the record reflects that Haynes was pro-vided the report during trial and utilized it in cross-examining the police officer who made the report. Consequently, as to this evidence, the issue is not a failure to disclose but a failure to timely disclose. When the issue is the failure to timely disclose, the defendant must show that, had the State disclosed the evidence earlier, there is a reasonable probability that the outcome of the proceeding would have been different. Id. at 613. That being the case, there is no Brady violation where the evidence is turned over in time for the defense to put it to effective use. Little v. State, 991 S.W.2d 864, 868 (Tex.Cr.App. 1999). As noted earlier, Haynes utilized the report in cross-examining the officer who wrote it. The complainant testified prior to the police officer, but she was subject to recall had Haynes wished to cross-examine her concerning the report. We conclude that the document was turned over in time for the defense to put it to effective use; therefore, there is no Brady violation. We also note that Haynes waived any Brady violation by failing to ask for a continuance. Payne v. State, 516 S.W.2d 675, 677 (Tex.Cr.App. 1974); Yates v. State, 941 S.W.2d 357, 364 (Tex.App.-Waco 1997, pet'n ref'd). We overrule issue two. Haynes urges in issue three that fundamental error occurred when the State failed to provide him with records showing the complainant's criminal history and that this failure was in violation of Brady. The record reflects that counsel was informed of the complainant's prior convictions the morning of trial. He did not request a continuance. We conclude that this information was turned over in time for the defense to put it to effective use; consequently, there is no Brady violation. As previously noted, Haynes waived any Brady violation by not requesting a continuance. While Haynes speculates contrary to the record that the complainant's record was not disclosed the morning of trial, his counsel said at the hearing on his motion for new trial with respect to the prosecutor's statement that she had disclosed the complainant's prior felony DWI conviction the morning of trial: "I assume she did. I have the Motion in Limine in my file. [The State had filed a motion in limine respecting any and all information regarding the complainant's criminal history.] So I don't question that something got said at the time she said it." We overrule issue three. Haynes argues in issue four that he was denied the effective assistance of counsel when his counsel did not move for a continuance after receiving the material referred to in issues two and three. We apply a two-pronged test to ineffective-assistance-of-counsel claims. Wiggins v. Smith, 539 U.S. 510, 521 (2003); Strickland v. Washington, 466 U.S. 668, 687 (1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex.Cr.App. 1999). First, appellant must show that his counsel's performance was deficient; second, appellant must show that the deficient performance prejudiced the defense. Wiggins v. Smith, supra at 521; Strickland v. Washington, supra at 687. In evaluating the effectiveness of counsel under the first prong, we look to the totality of the representation and the particular circumstances of each case. Thompson v. State, supra at 813. A defendant must demonstrate that counsel's representation fell below an objective standard of reasonableness and the prevailing professional norms at the time of the alleged error. Wiggins v. Smith, supra at 521; Strickland v. Washington, supra at 688-89. "[C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland v. Washington, supra at 690. An allegation of ineffective assistance must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson v. State, supra at 814. Our scrutiny of counsel's performance must be highly deferential, and every effort must be made to eliminate the distorting effects of hindsight. Strickland v. Washington, supra at 689. The second prong of Strickland requires a showing that counsel's errors were so serious that they deprived the defendant of a fair trial, i.e., a trial whose result is reliable. Id. at 687. In other words, appellant must show there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. at 694. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. The ultimate focus of our inquiry must be on the fundamental fairness of the proceeding being challenged. Id. at 697. Under normal circumstances, the record on direct appeal will not be sufficient to show that counsel's representation was so deficient and so lacking in tactical or strategic decision-making as to overcome the presumption that counsel's conduct was reasonable and professional. Bone v. State, 77 S.W.3d 828, 833 (Tex.Cr.App. 2002). Rarely will the record from trial contain sufficient information to permit a reviewing court to fairly evaluate the merits of such a serious allegation. Id. A defendant's counsel should ordinarily be accorded an opportunity to explain his or her actions before being condemned as unprofessional and incompetent. Id. at 836. Nothing in the record contains the reasons why counsel chose not to pursue a motion for continuance. We, therefore, do not have sufficient information to enable us to fairly evaluate the merits of Haynes's claim of ineffective assistance. We overrule issue four. The judgment is affirmed.