No. 01-08-00625-CR
Opinion issued February 25, 2010. DO NOT PUBLISH. TEX. R. APP. P. 47.2(b).
On Appeal from the 339th District Court Harris County, Texas, Trial Court Case No. 1021403.
Panel consists of Justices KEYES, SHARP, and MASSENGALE.
MICHAEL MASSENGALE, Justice.
Appellant Daniel Lee Sandifer was convicted by a jury of aggravated sexual assault. See TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(i), (2)(B) (Vernon Supp. 2009). The jury assessed punishment at 20 years' imprisonment and a $10,000 fine. See TEX. PENAL CODE ANN. § 22.021(e) (Vernon Supp. 2009). In three points of error, Sandifer contends the evidence is legally and factually insufficient (points one and two) and he received ineffective assistance of counsel at the punishment stage (point three). We affirm the judgment of the trial court.
Background
The complainant, C.M., was best friends with T.F., who is Sandifer's stepdaughter. C.M. visited T.F.'s house often, and Sandifer was usually there. C.M. testified that she felt uncomfortable around Sandifer. As examples, C.M. testified that Sandifer insisted that she call him "Mr. Master, the Magnificent," that he would spank her, and he would pretend that he was going to pull her pants down. Sandifer worked at Wal-Mart and sometimes took T.F. and C.M. to work with him. C.M. testified that in September 2004 when they accompanied Sandifer to work, he "turned around and he pulled his pants down and he told us to touch it." C.M. said that Sandifer's penis was erect, and that she told him "no" and screamed. After that incident, T.F. asked C.M. to promise not to say anything. C.M. testified that in October 2004 she was playing at T.F.'s house and Sandifer asked her to come into his bedroom. Sandifer asked C.M. to give him a hug, and when she did, Sandifer pulled her into his bed and "[h]e put his legs on top of my legs and then he reached down my shorts, the back of my shorts and reached up and put his finger in my vagina." After C.M. ran away to T.F.'s bedroom, C.M. testified that Sandifer wrote a note and "slipped it under the door saying that [T.F.'s mother] doesn't give him any and we're the closest thing he has to a pro — to a whore." T.F. showed the note to her mother, who burned it. On cross-examination, C.M. stated that she was close to T.F., and C.M. admitted she "would do pretty much anything [T.F.] asked [her] to do." C.M. testified that the police learned about the incidents at the same time that T.F. moved away from her mother and Sandifer to live with T.F.'s biological father. T.F. was getting disciplined by her mother and Sandifer, and T.F. wanted to go live with her biological father. Pasadena Police Department Detective T. Brinson testified that he contacted C.M.'s mother in March 2005 and told her that allegations had been made that C.M. was a victim of sexual abuse. C.M.'s mother brought C.M. to the Children's Assessment Center to be interviewed by a forensic specialist. Detective Brinson watched the interview of C.M. by closed circuit television, and after hearing C.M. tell her story, Detective Brinson identified Sandifer as a suspect and contacted him. Sandifer denied C.M.'s allegations of sexual abuse, but he became nervous when Detective Brinson asked him about a letter he had written. Sandifer admitted that he wrote a letter "about being sexually frustrated and that in the letter he said the [T.F's mother] would not give him any and that he did not want to go to a whore to have sex." While C.M.'s mother was bringing C.M. to the Children's Assessment Center, C.M. told her mother what Sandifer had done at Wal-Mart and in Sandifer's bedroom. C.M. related the same events to the forensic interviewer and to a police officer. C.M. was also examined by Dr. M. Lyn, who found nothing unusual in her medical examination of C.M. C.M. told Dr. Lyn during the exam that Sandifer touched her in inappropriate ways. Dr. Lyn testified that the lack of any physical injury to C.M. at the time of the medical examination, which was several months after C.M. claimed Sandifer sexually assaulted her, was not inconsistent with C.M.'s story. Sandifer testified during the guilt-innocence phase of his trial. In discussing the Wal-Mart incident, Sandifer stated that T.F. "ran up behind me . . . and just literally jerked on my shorts." Sandifer testified that even after he pulled up his shorts, T.F. tried to pull them down again and that C.M. watched the whole incident and laughed. Sandifer said that T.F. and C.M. were often mad at him because he disciplined them. Sandifer described an incident in which he was driving with C.M., T.F., and T.F.'s boyfriend, Chris, in the car. Sandifer said that C.M. became jealous of T.F. and Chris hugging, and C.M. reacted inappropriately: She literally grabbed my hand and pulled it down to her leg and said, "See, see how soft." You know, and you know, naturally, I'm trying to jerk back my hand. I did jerk my hand back. And then she put her arm around me while I'm driving, trying to put her arm around me and said, "This is my boyfriend." I mean, she was just literally mad because of Chris.
Sandifer testified that C.M. and T.F. "clowned around" another time by playing a trick on him in his bedroom: [T.F.] came into the living room where I was watching T.V. and said, "[C.M.] needs you. She wants to talk to you." So I walked into the — the bed is right there, the door is right there (indicating). I walked through the door next to the bed and I said, "What's wrong," you know. [T.F.] came up behind me and just literally shoved me down on [C.M.]. Okay. And [C.M.], she just wraps her legs around me and starts — you know, around my neck and holding me down. And, you know, I got away, but it was just — you know, I couldn't take it. I didn't — you know, I didn't know what to think about it. But she wanted to go get ice cream. That was all. They wanted to go get ice cream.
Sandifer told C.M. and T.F. that this was inappropriate behavior. Sandifer explained the letter he wrote to C.M. and T.F. by saying that T.F. had told him that T.F.'s mother had cheated on him during a vacation to California. He said that T.F. began asking him about "hookers" and placing notes under his door. He denied that he had sex with a prostitute, but he said that he wrote the note "[t]o get them off my back, to just leave me alone." John Sandifer, the appellant's older brother, testified that C.M., T.F., and appellant attended a birthday party at his house. At the party, C.M. and T.F. were in a van with some older boys. After John's wife noticed the smell of marijuana coming from the van, John told the two girls to get out of the van. When C.M. and T.F. refused, John told his brother, who made the girls get out of the van. John testified that C.M. and T.F. were angry about the incident. Analysis
Sufficiency of the evidence
In his first point of error, Sandifer contends the evidence is legally insufficient to establish that he committed aggravated sexual assault for the following reasons: (1) C.M. never told an adult that Sandifer assaulted her; (2) C.M. continued to return to Sandifer's house after the incident; (3) C.M. did not discuss the incident with three other children who were at the house at the time; (4) C.M. allowed Sandifer to take her places like Wal-Mart after the incident; (5) C.M.'s mother testified she had no reason to believe that Sandifer had done anything inappropriate with C.M.; (6) Detective Brinson never interviewed one of the other children who was at the house at the time of the incident; (7) Dr. Lyn testified there was a lack of any physical injury to C.M.; (8) "Dr. Lyn' [sic] testimony proves that there was no specific timing of abuse of [C.M.]"; and (9) the State did not call T.F as a witness. The standard of review for legal sufficiency of the evidence is whether, viewing the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2788-89 (1979); King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). The jury is the exclusive judge of the credibility of witnesses and of the weight of their testimony. Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim. App. 2000). Sandifer does not argue that the State has failed to adduce evidence of any element of the offense. Instead, Sandifer argues that "[d]ue to all the circumstances surrounding this case it is irrational that a jury could find appellant guilty when the complainant had many instances to inform someone that she had been sexually abused several times as she claims. She did not inform anyone of significance until she told her mother on February 28, 2005, four to five months after the alleged abuse." Sandifer's argument is an attack on the weight and credibility of the evidence, which is a matter left exclusively to the jury. See Margraves, 34 S.W.3d at 919. Accordingly, we hold there is legally sufficient evidence to support the judgment of conviction and overrule the first point of error. In the second point of error, Sandifer claims the evidence is factually insufficient to support his conviction. When conducting a factual-sufficiency review, we view all of the evidence in a neutral light. Cain v. State, 958 S.W.2d 404, 408 (Tex. Crim. App. 1997). We will set the verdict aside only if (1) the evidence is so weak that the verdict is clearly wrong and manifestly unjust or (2) the verdict is against the great weight and preponderance of the evidence. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). Under the first prong of Johnson, we cannot conclude that a conviction is "clearly wrong" or "manifestly unjust" simply because, on the quantum of evidence admitted, we would have voted to acquit had we been on the jury. Watson v. State, 204 S.W.3d 404, 417 (Tex. Crim. App. 2006). Under the second prong of Johnson, we cannot declare that a conflict in the evidence justifies a new trial simply because we disagree with the jury's resolution of that conflict. Id. Before finding that evidence is factually insufficient to support a verdict under the second prong of Johnson, we must be able to say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury's verdict. Id. In conducting a factual-sufficiency review, we must also discuss the evidence that, according to the appellant, most undermines the jury's verdict. See Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003). We may not substitute our judgment for that of the fact-finder. King, 29 S.W.3d at 563. The fact-finder alone determines what weight to place on contradictory testimonial evidence because that determination depends on the fact-finder's evaluation of credibility and demeanor. Cain, 958 S.W.2d at 408-09. As the judge of the credibility of the witnesses, the fact-finder may choose to believe all, some, or none of the testimony presented. Id. at 407 n. 5. The standard for reviewing the factual sufficiency of the evidence is whether, after considering all of the evidence in a neutral light, the jury was rationally justified in finding guilt beyond reasonable doubt. Watson, 204 S.W.3d at 415. Sandifer makes the same credibility arguments under his factual-sufficiency claim that he did with respect to legal sufficiency. He claims that in reviewing factual sufficiency, this Court may consider the credibility of the evidence, but this is not the law. See Cain, 958 S.W.2d at 408-09. The only evidence that contradicts C.M.'s testimony that Sandifer sexually assaulted her is Sandifer's denial. After considering all of the evidence in a neutral light, we cannot say that the jury's verdict is against the great weight and preponderance of the evidence. Accordingly, we overrule the second point of error. Ineffective assistance of counsel
In his third point of error, Sandifer claims his trial counsel was ineffective in failing to offer mitigating evidence to support an argument that the jury should consider probation as a viable alternative to prison. Sandifer's specific complaint is that his trial counsel did not offer any evidence of sex-offender treatment programs available outside of the prison system. To be entitled to a new trial based on ineffective assistance, a defendant must show that counsel's performance was so deficient that he was not functioning as acceptable counsel under the Sixth Amendment, and there is a reasonable probability that, but for counsel's error, the result of the proceedings would have been different. See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); Hernandez v. State, 726 S.W.2d 53, 55-57 (Tex. Crim. App. 1986). The defendant bears the burden to prove ineffective assistance of counsel. See Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. Allegations of ineffective assistance of counsel must be firmly founded in the record. McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996). The review of trial counsel's representation is highly deferential and presumes that counsel's actions fell within a wide range of reasonable professional assistance. See Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). When the record is silent on the motivations underlying trial counsel's tactical decisions, the appellant usually cannot overcome the strong presumption that trial counsel's conduct was reasonable. See Thompson, 9 S.W.3d at 813. In most cases, the record on direct appeal is undeveloped and cannot adequately reflect the motives behind trial counsel's actions. See Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001). Because the reasonableness of trial counsel's choices often involves facts that do not appear in the appellate record, the Court of Criminal Appeals has stated that trial counsel should ordinarily be given an opportunity to explain his or her actions before a court reviews that record and concludes trial counsel was ineffective. See Bone v. State, 77 S.W.3d 828, 836 (Tex. Crim. App. 2002). A petition for writ of habeas corpus usually is the appropriate vehicle to investigate ineffective-assistance claims. See Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002). Without proof from the defendant that there is no plausible professional reason for trial counsel's act or omission, the reviewing court may not speculate on why counsel acted as he did. See Bone, 77 S.W.3d at 835-36. On appeal, Sandifer argues that his trial counsel failed the first prong of Strickland-i.e., counsel's performance was so deficient that he was not functioning as acceptable counsel under the Sixth Amendment-because counsel did not offer any evidence of sex-offender treatment programs available outside of the prison system during the trial on punishment. In making this argument, Sandifer provides no authority for the proposition that there can be no plausible professional reason for trial counsel's act or omission in this specific situation. (In this regard, we note that Sandifer maintained his innocence throughout the punishment phase.) We therefore hold that Sandifer has not met his burden under the first prong of Strickland to prove that his trial counsel was deficient. Because failure to make the required showing of either deficient performance or sufficient prejudice defeats an ineffectiveness claim, we do not reach Sandifer's arguments on the second prong of Strickland. See Thompson, 9 S.W.3d at 813. We overrule the third point of error. Conclusion
We affirm the trial court's judgment.