Opinion
No. 07-20-00179-CR
11-13-2020
JASON LEE SCOTT, APPELLANT v. STATE OF TEXAS, APPELLEE
On Appeal from the 27th District Court Lampasas County, Texas
Trial Court No. 10189 , Honorable John Gauntt, Presiding
MEMORANDUM OPINION
Before QUINN, C.J., and PIRTLE and PARKER, J.J.
Jason Lee Scott appeals from his conviction for indecency with a child by sexual contact. His sole issue concerns whether the trial court erred in denying his motion for new trial. In it, he contends that his trial counsel denied him effective assistance because counsel failed to 1) impeach the victim with an inconsistent statement, 2) object to a witness's mention of polygraph testing, and 3) suppress a statement uttered during that testing. We affirm.
Because this appeal was transferred from the Third Court of Appeals, we are obligated to apply its precedent when available in the event of a conflict between the precedents of that court and this Court. See TEX. R. APP. P. 41.3.
The applicable standard of review is that discussed in Briggs v. State, 560 S.W.3d 176 (Tex. Crim. App. 2018). It is one of abused discretion requiring us to view the evidence in a light most favorable to the ruling. Id. at 183-84. Only if no reasonable view of the record or legal theory supports the decision is it an instance of abused discretion. Id. at 184.
Additionally, to secure relief when pursuing an allegation of ineffective assistance, the defendant must show deficient performance coupled with a reasonable probability that the outcome would have been different but for the deficiency. Burch v. State, 541 S.W.3d 816, 820 (Tex. Crim. App. 2017). Performance is deficient when falling below an objective standard of reasonableness given the circumstances of the case. Strickland v. Washington, 466 U.S. 668, 687-88, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); see Roberts v. State, No. 05-15-00379-CR, 2016 Tex. App. LEXIS 820, at *8 (Tex. App.—Dallas Jan. 27, 2016, no pet.) (mem. op., not designated for publication) (stating that performance is deficient when an attorney's performance falls below an objective standard of reasonableness under prevailing professional norms and according to the necessity of the case). Furthermore, we must be highly deferential to counsel's decisions to avoid the deleterious effects of hindsight. Ex parte Ordonez, No. 07-18-00445-CR, 2019 Tex. App. LEXIS 9250, at *6-7 (Tex. App.—Amarillo Oct. 19, 2019, pet. ref'd) (mem. op., not designated for publication). That is, we should not second-guess, through hindsight, the strategy of counsel at trial or simply conclude that counsel was deficient because another attorney may have pursued a different course. Roberts, 2016 Tex. App. LEXIS 820, at *8.
We begin our analysis with appellant's contention that his trial counsel's failure to impeach the complaining witness on a particular matter denied him effective counsel. The matter concerned when the indecency occurred. The 12-year-old victim testified that she was asleep on a recliner when awakened at 3:16 a.m. by appellant touching or rubbing her vagina. That resulted in appellant ducking down behind the sofa. She then "curled up in a ball" and waited. Eventually, he left to operate his computer for a period of time, and ultimately returned to his room. That resulted in the child rising and asking her sister if she could sleep with her. Like circumstances were reported by the child to the investigating officer. Yet, in his report, he wrote that the child "looked at the "time" and "it said 6:35." In her own written statement, the victim also mentioned like circumstances but said that "everything happened . . . around 6:30 in the morning." Appellant contends that the child alluding to 6:30 and 6:35 prior to trial while testifying that the incident occurred at 3:16 a.m. obligated defense counsel to impeach on the matter. He did not, though.
When the point was raised at the hearing upon appellant's motion for new trial, defense counsel explained that he 1) "was able to show enough inconsistencies with the victim's statement to leave the impression with the jury that she had some discrepancy within her story"; 2) "did not feel pressuring or beating up on a 12-year-old girl in front of the jury was going to score us any points"; 3) "felt that we made enough points to show that she was - she had a lot of discrepancies"; and, 4) "was trying not to open the door to allow [the State] to get the CAC interview in." At the very least, these rationales illustrate that counsel did not simply ignore the matter.
Moreover, we cannot deny that unduly "beating up on a 12-year-old girl in front of the jury" is a reasonable concern. This is especially so when the child's mention of 3:16 a.m. at trial actually comported with appellant's description of the pertinent time. Though he did not confess to touching the child, he did describe some of the same events mentioned in the child's statement. Included were his approaching the child as she slept, coming in close contact while covering her with a blanket, sitting down to check a toe he stubbed, playing on his computer, and eventually leaving the area. Those events transpired around 3:00-3:30 a.m. In short, aspects of appellant's own statement bolster the time frame to which the child testified. Given that, a court could deem it reasonable trial strategy for defense counsel to forgo beating up on a child witness over the time of the assault when the statement of his client supported the time mentioned by the child at trial.
Next, appellant avers that trial counsel was ineffective because he "failed to object to Agent Carlson's improper reference to Appellant's failed polygraph examination." The purported reference happened when Carlson testified about his interview with appellant. According to the record, appellant volunteered to undergo a polygraph, and Carlson was the DPS official selected to conduct it. The test included an interview. Prior to Carlson testifying about the interview, the trial court instructed him to forgo mentioning the polygraph. That directive purportedly was breached when the State asked Carlson if appellant made a specific statement about touching the victim's vagina. The agent replied:
Okay. Yeah, I'll refer to a specific quote that I included in my report from the video. "I don't remember none of that. I do not. All I remember is covering her back up and sitting down. I don't remember touching her. I don't. I -- there ain't no way I could have. No matter what this says. I don't -- I don't know. I don't remember. Uh. My pain from my toe was so bad. Umm. I don't -- I couldn't have done that."
Saying "no matter what this says" purportedly revealed not only that appellant underwent polygraph testing but also failed it. That warranted an objection on the part of trial counsel, allegedly. In making this argument, appellant cites us to no other instance where the topic of "polygraph," in general, or him undergoing one, in particular, was mentioned to the jury. Furthermore, defense counsel explained to the trial court that he opted to withhold objection because "I didn't want to call attention to it. It could have been anything. It was completely taken out of context, such as the context could have been anything."
Withholding objection to avoid garnering more attention on a matter can be reasonable trial strategy. See, e.g., Garcia v. State, 887 S.W.2d 862, 881 (Tex. Crim. App. 1994) (en banc) (acknowledging that the decision not to request a limiting instruction to avoid drawing more attention to incriminating evidence falls within the scope of reasonable trial strategy). We deem that true here given the rather oblique allusion to a polygraph examination contained within the statement "no matter what this says." Simply put, it would not be unreasonable for the trial court to conclude not only that "no matter what this says" was an innocuous statement but also that withholding objection to maintain that innocuousness was sound strategy.
The final instance of alleged ineffectiveness occurred when defense counsel failed to move to suppress the very statement quoted above wherein appellant denied remembering anything "no matter what this says." Such a motion was not only necessary, in his view, but also would have resulted in suppression because the agent supposedly indicated to appellant that he had probable cause to arrest him. By Agent Carlson indicating the existence of probable cause, the voluntary interview between the two became a custodial interrogation for purposes of article 38.22, § 3(a) of the Texas Code of Criminal Procedure, so says appellant. Because the terms of that article were not followed, the statement allegedly was subject to suppression.
It is true that oral statements of an accused made during custodial interrogation are inadmissible unless various warnings are afforded the accused before uttering the statement. Those warnings are specified in article 38.22, § 2(a) of the Code of Criminal Procedure. TEX. CODE CRIM. PROC. ANN. art. 38.22, § 2(a)(1)-(5) (West 2018) (listing the warnings as 1) the right to remain silent and not make any statement at all, 2) any statement may be used against him at his trial, 3) the right to have a lawyer present to advise him prior to and during any questioning, 4) the right to have a lawyer appointed if one cannot be afforded, and 5) the right to terminate the interview at any time). Yet, the lynchpin of article 38.22, § 3(a) is custodial interrogation. See TEX. CODE CRIM. PROC. ANN. art. 38.22, § 3(a) (stating that "[n]o oral or sign language statement of an accused made as a result of custodial interrogation shall be admissible against the accused in a criminal proceeding unless . . . "). Statements uttered when the speaker is not in custody are not within the scope of the article. See Norman v. State, No. 07-18-00218-CR, 2019 Tex. App. LEXIS 6690, at *9 (Tex. App.—Amarillo Aug. 1, 2019, no pet.) (mem. op., not designated for publication) (stating that "[t]o preclude a statement from being used against him at trial, a defendant bears the initial burden of proving the subject statement was the product of a custodial interrogation").
One is in custody when, under the circumstances, a reasonable person would believe that his freedom of movement is restrained to the degree associated with formal arrest. State v. Saenz, 411 S.W.3d 488, 496 (Tex. Crim. App. 2013). Four general indicia help guide the assessment. They are whether 1) the suspect is physically deprived of his freedom of action in any significant way, 2) a law enforcement officer tells the suspect that he cannot leave, 3) a law enforcement officer creates a situation that would lead a reasonable person to believe that his freedom of movement has been significantly restricted, and 4) there is probable cause to arrest and a law enforcement officer does not tell the suspect that he is free to leave. Id. (quoting Dowthitt v. State, 931 S.W.2d 244, 255 (Tex. Crim. App. 1996)). The first three require that the restriction on freedom reach a level associated with an arrest as opposed to a mere detention. Id. The fourth requires the officer to believe he has probable cause to arrest and manifest that belief. Id. Yet, the fourth indicia alone is insufficient to establish custody; rather, manifesting the existence of probable cause still must be coupled with other circumstances which would lead a reasonable person to believe that he is being restrained to the degree associated with arrest. Id.
Appellant seems to argue that Agent Carlson's informing appellant that the polygraph indicated he was lying is tantamount to manifesting the existence of probable cause to arrest. Assuming arguendo that is correct, we find an absence of other requisite indicia elevating that manifestation to the level of custody. From the onset, appellant was told he could end the interview at will, which he did about two hours after it started and after taking a break to smoke. Carlson also made statements indicating that appellant would be able to leave once the testing ended. And, we cannot ignore that appellant requested the opportunity to undergo polygraph testing and voluntarily appeared at the testing site. So too was he offered and did accept a libation and breaks. Appellant's allusion to his having to wait about a minute before leaving the room after telling Carlson he wanted a cigarette means little. No doubt, Carlson sought to continue the interview but appellant left, returned for several more minutes, and left again. These indicia hardly illustrate freedom restrained to a degree tantamount to arrest.
Because a defense attorney need not pursue frivolous complaints to be effective counsel, see Guzman v. State, 539 S.W.3d 394, 409 (Tex. App.—Houston [1st Dist.] 2017, pet. ref'd) (acknowledging that it does not constitute ineffective assistance for defense counsel to forgo making a frivolous objection), the circumstances at bar provided the trial court sufficient basis to conclude that defense counsel was not ineffective when forgoing effort to suppress the statement under article 38.22 of the Code of Criminal Procedure. More importantly, we are obligated to defer to that decision given its sufficient factual and legal basis.
Appellant's issue is overruled, and the conviction and judgment are affirmed.
Brian Quinn
Chief Justice Do not publish.