Opinion
No. 06-19-00272-CR
12-21-2020
JONATHAN WILLIAMS, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 202nd District Court Bowie County, Texas
Trial Court No. 18F0287-202 Before Morriss, C.J., Burgess and Stevens, JJ.
MEMORANDUM OPINION
After C.N., who was twenty-six at the time of trial, testified about various acts of sexual abuse that Johnathan Williams inflicted on her when she was a child, a Bowie County jury convicted Williams of aggravated sexual assault of a child and two counts of indecency with a child by contact. The jury assessed a sentence of thirty years' imprisonment and a $10,000.00 fine for the aggravated assault and fifteen years' imprisonment for each indecency conviction.
On appeal, Williams complains of prosecutorial misconduct and ineffective assistance of counsel. Williams also argues that the trial court erred by cumulating his sentences because the "total term of confinement is cruel and unusual under the Eighth Amendment." We find that Williams failed to preserve his prosecutorial misconduct complaints and cannot show ineffective assistance of counsel by this silent record. We also find that Williams failed to preserve his sentencing complaints. However, we modify the trial court's judgments to correct the spelling of Williams's name. As modified, we affirm the trial court's judgments.
I. Williams Failed to Preserve His Prosecutorial Misconduct Complaints
At trial, C.N. testified that, when she was seven or eight, Williams began taking naked photographs of her. She told the jury that, when she was a child, Williams "would put his hands on [her] breasts," touch and "put[] his fingers into [her] vagina," and "put [her] hand on his penis." According to C.N., in addition to these acts happening on separate occasions, she remembered one episode where they occurred all at once. C.N.'s friend, K.E., testified about extraneous acts of sexual abuse by Williams. C.N. and K.E. were adults at the time of trial.
Williams testified in his defense at trial, denied guilt, claimed he was never alone with C.N., and accused her and K.E. of "making [the allegations] up." Williams acknowledged that he heard the State's expert, Missy Davison, program director for the Texarkana Children's Advocacy Center, testify as to the stages of grooming shown by C.N.'s and K.E.'s testimony, but told the jury he believed that C.N. and K.E. "did some research" on the topic before reporting Williams's actions to make him look like a person who groomed children. After Williams testified that he did not know why C.N. and K.E. were fabricating allegations against him, the State asked the following question:
Okay. For this jury to believe -- let's just start with, we've proven you guilty in this courtroom. I would never stand up and rest on behalf of this county and the State of Texas unless I had every element of the offense met, and we have. So at that point, it switches . . . and you-all can put on your defense, which you're doing now. So for you to put on some evidence to sort of rebut what I have put on, you're going to have to have a motive, man. You're going to have to tell me and this jury and frankly everybody in here why these women would come in here and lie.(Emphasis added).
The State questioned Williams about examples from the testimony showing that Williams's actions fell into different stages of grooming, but Williams denied grooming the children. The State asked Williams, "Okay. That is why people like Ms. Davison come and educate the jury, because people like you are so predictable. Does that make sense to you?" (Emphasis added). Williams replied, "That makes sense, but I didn't do any of those things." After Williams could not explain why "two college-education women with careers" may have made up allegations against him, the State asked,
All right. You have to understand the burden of proof on the State of Texas is beyond a reasonable doubt. If there's proof in the record that has gone unimpeached, there's proof in the record of your guilt, these people are about to walk out that back door in just a few seconds and decide what's going to happen with the rest of your life, and all you've got to offer is I don't know why they might have done it?(Emphasis added). Williams responded, "I do not know."
In his first point of error, Williams argues that the prosecutor interjected her personal opinions into the case when stating, during Williams's cross-examination, (1) "[W]e've proven you guilty in this courtroom. I would never stand up and rest on behalf of this county and the State of Texas unless I had every element of the offense met, and we have," and (2) "There's a reason that experts like Ms. Davison know the stages of grooming because people like you do the same thing over and over. . . . That is why people like Ms. Davison come and educate the jury, because people like you are so predictable." Williams also argues that the prosecutor misled the jury when she stated, "If there's proof in the record that has gone unimpeached, there's proof in the record of your guilt," which Williams maintains "sought to instill the erroneous, improper idea 'that only positive testimony could engender disbelief of' C.N." Williams argues that this conduct denied him a fair trial, constituted government interference that deprived him of due process, and violated Rules 3.04 and 3.06 of the Texas Rules of Professional Conduct. The State contends that any complaint regarding prosecutorial misconduct has not been preserved for our review. We agree.
"To preserve a prosecutorial misconduct complaint, a defendant must generally make a timely and specific objection, request an instruction to disregard the matter improperly placed before the jury, and move for a mistrial." Johnson v. State, 432 S.W.3d 552, 561 (Tex. App.— Texarkana 2014, pet. ref'd) (citing Penry v. State, 903 S.W.2d 715, 764 (Tex. Crim. App. 1995) (per curiam); see TEX. R. APP. P. 33.1(a)). This is because "[t]he right to a trial untainted by improper jury argument is forfeitable," and such "[r]ights are usually forfeited by a failure to exercise them." Hernandez v. State, 538 S.W.3d 619, 622 (Tex. Crim. App. 2018) (citing Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996); Marin v. State, 851 S.W.2d 275, 278 (Tex. Crim. App. 1993), overruled on other grounds by Cain v. State, 947 S.W.2d 262, 264 (Tex. Crim. App. 1997)). As a result, "[f]ailure to insist upon a [forfeitable] right . . . results in the loss of the claim" since "[t]he trial judge 'has no duty to enforce forfeitable rights unless requested to do so.'" Id. (quoting Marin, 851 S.W.2d at 279).
Here, Williams failed to object to any of the statements made by the prosecutor. "[A]n important consequence of [this] failure to petition enforcement of his forfeitable rights in the trial court [was] that no error attends failure to enforce them and none is presented for review on appeal." Id. (quoting Marin, 851 S.W.2d at 279). While Williams argues that we should apply the fundamental error doctrine in light of the prosecutor's particularly egregious comments, the Texas Court of Criminal Appeals has written that "[e]ven an inflammatory jury argument is forfeited if the defendant does not pursue his objection to an adverse ruling." Id. at 622-23 (citing Estrada v. State, 313 S.W.3d 274, 303 (Tex. Crim. App. 2010) ("[E]ven assuming prosecutor's argument was so egregious that instruction to disregard would be ineffectual, defendant 'should have moved for a mistrial to preserve this error.'")).
We find that Williams failed to preserve his first point of error for our review. As a result, we overrule it.
Our ruling does not constitute approval of the prosecutor's conduct at trial. Although the objected-to comments by the prosecutor in this case occurred during cross-examination rather than closing argument, the Court of Criminal Appeals has held that the law regarding improper jury argument is equally applicable to improper sidebar remarks by prosecutors during the questioning of witnesses. Stein v. State, 492 S.W.2d 548, 551-52 (Tex. Crim. App. 1973) ("Recently, this Court has been faced with numerous cases where improper arguments and sidebar remarks by the prosecutor have forced us to reassert the critical importance of convicting an accused only upon that evidence presented, without attempting to inflame or prejudice the minds of the jurors.") (citing White v. State, 492 S.W.2d 488 (Tex. Crim. App. 1973); Hefley v. State, 489 S.W.2d 115 (Tex. Crim. App. 1973); Lott v. State, 490 S.W.2d 600 (Tex. Crim. App. 1973)). The Court of Criminal Appeals has made it clear that permissible jury argument falls into one of four categories: "(1) summation of the evidence, (2) reasonable deduction from the evidence, (3) answer to the argument of opposing counsel, and (4) plea for law enforcement." Brown v. State, 270 S.W.3d 564, 570 (Tex. Crim. App. 2008). "The purpose of argument is to assist the jury in properly analyzing the evidence and arriving at a verdict based on the evidence alone." Lookabaugh v. State, 352 S.W.2d 279, 280 (Tex. Crim. App. 1961). "The law provides for, and presumes a fair trial, free from improper argument by the prosecuting attorney." Borjan v. State, 787 S.W.2d 53, 56 (Tex. Crim. App. 1990) (per curiam). It is improper for a prosecutor to inject personal opinion into the case and argue outside the record. McKensie v. State, 617 S.W.2d 211 (Tex. Crim. App. [Panel Op.] 1981); Romo v. State, 593 S.W.2d 690 (Tex. Crim. App. [Panel Op.] 1980), overruled on other grounds by Wagner v. State, 687 S.W.2d 303, 313 (Tex. Crim. App. [Panel Op.] 1984); Alejandro v. State, 493 S.W.2d 230, 231 (Tex. Crim. App. 1973) ("It is the duty of trial counsel to confine their arguments to the record; reference to facts that are neither in evidence nor inferable from the evidence is therefore improper." (quoting 56 TEX. JUR. 2D, Trial, § 271, p. 613)). Thus, the State engages in improper argument where it resorts to "argument to arouse the passion or prejudice of the jury by matters not properly before them." Campbell v. State, 610 S.W.2d 754, 756 (Tex. Crim. App. [Panel Op.] 1980). As the Texas Court of Criminal Appeals stated more than seventy years ago,
The purpose and object of arguments are to discuss the evidence and to assist the jury in arriving at a proper conclusion of the case from all the facts and circumstances proven. Improper implications or vilifications are not conducive to the attainment of that object. We have time and again called attention of the prosecuting attorneys to the danger of departing from legitimate argument as it may result in great harm to the accused and will in such instance require a reversal of the case.Andrews v. State, 199 S.W.2d 510, 514 (Tex. Crim. App. 1947).
II. Williams Cannot Show Ineffective Assistance of Counsel from this Silent Record
In nine separate points of error, Williams complains of various acts and omissions that he believes constituted ineffective assistance of counsel. After reviewing each complaint, we conclude that Williams cannot demonstrate that his counsel rendered ineffective assistance based on this silent record.
A. Standard of Review
"As many cases have noted, the right to counsel does not mean the right to errorless counsel." Lampkin v. State, 470 S.W.3d 876, 896 (Tex. App.—Texarkana 2015, pet. ref'd) (citing Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006)). "In order to prevail on a claim of ineffective assistance of counsel, the defendant must satisfy the two-pronged test set forth in Strickland . . . ." Id. (citing Strickland, 466 U.S. at 687-88; Ex parte Imoudu, 284 S.W.3d 866, 869 (Tex. Crim. App. 2009) (orig. proceeding)). "A failure to make a showing under either prong defeats a claim for ineffective assistance." Id. at 897 (citing Rylander v. State, 101 S.W.3d 107, 110-11 (Tex. Crim. App. 2003)).
The first prong requires a showing "that counsel's representation fell below an objective standard of reasonableness." Strickland, 466 U.S. at 688. This requirement can be difficult to meet since there is "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689. As a result, the Texas Court of Criminal Appeals has said that "[t]rial counsel 'should ordinarily be afforded an opportunity to explain his actions before being'" found ineffective. Menefield v. State, 363 S.W.3d 591, 593 (Tex. Crim. App. 2012).
When an appellate record is silent on why trial counsel failed to take certain actions, the appellant has "failed to rebut the presumption that trial counsel's decision was in some way—be it conceivable or not—reasonable." Mata v. State, 226 S.W.3d 425, 431 (Tex. Crim. App. 2007); see Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999). This is because allegations of ineffectiveness "must be firmly founded in the record." Bone v. State, 77 S.W.3d 828, 833 n.13 (Tex. Crim. App. 2002) (quoting Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999)). When a party raises an ineffective assistance of counsel claim for the first time on direct appeal, the defendant must show that "under prevailing professional norms," Strickland, 466 U.S. at 688, no competent attorney would do what trial counsel did or no competent attorney would fail to do what trial counsel failed to do. Andrews v. State, 159 S.W.3d 98, 102 (Tex. Crim. App. 2005).
B. An Analysis of Each of Williams's Ineffective Assistance Grounds
1. Failure to Object to Prosecutor's Statements Was Not Ineffective Assistance
In his first ground of ineffective assistance, Williams complains of counsel's failure to object to the prosecutor's statements mentioned in his first point of error. He also complains that counsel should have objected to a statement made during closing argument that the prosecutor had dedicated her life to protect the people of Bowie County and to the statement, "[Williams] may think it's a joke, but I don't." We have previously held that, even when a prosecutor's comments are "patently improper," a silent record will not support a claim of ineffective assistance since "it is possible that [the defendant]'s trial counsel did not wish to draw further emphasis to the State's improper remark by lodging a contemporaneous objection." Bryant v. State, 282 S.W.3d 156, 173 (Tex. App.—Texarkana 2009, pet. ref'd) (citing Dickerson v. State, 87 S.W.3d 632, 638-39 (Tex. App.—San Antonio 2002, no pet.) ("silent record would not support finding of ineffective assistance regarding prosecutor's patently improper closing remarks where defendant had opportunity to develop ineffective assistance claims in motion for new trial but failed to do so")).
Employing the same reasoning, we find that counsel could have decided to forgo an objection that could have drawn the jury's attention to the comments, in favor of reminding the jury, as he did during closing argument, that "[n]othing a lawyer says represents evidence in the case." Counsel could have also believed that his reminder, combined with the trial court's direction to the jury to decide the case based on the evidence and its instruction that the "burden of proof in all criminal cases rests upon the State throughout the trial and never shifts to the defendant," alleviated any harm from the prosecutor's comments.
Because we can fathom a reasonable trial strategy in counsel's failure to object to the prosecutor's comment, we find that Williams has not met the first Strickland prong.
See supra note 2.
2. Failing to Object to the Dates in the Indictment Was Not Ineffective Assistance
In his second ground, Williams argues that counsel should have attacked the indictment, which alleged that the offenses occurred "on or about January 1, 2004, through September 9, 2005." An indictment's purpose is "to provide an individual with notice of what he or she is being charged with." Ex parte Rodgers, 598 S.W.3d 262, 271 (Tex. Crim. App. 2020) (Walker, J., concurring). Counsel could have decided not to attack the indictment on this ground because conversations with Williams could have revealed that Williams had ample notice of each allegation and was aware of the timeframe of each allegation and because "[i]t is well settled that the 'on or about' language of an indictment allows the State to prove a date other than the one alleged in the indictment as long as the date is anterior to the presentment of the indictment and within the statutory limitations period." Sledge v. State, 953 S.W.2d 253, 256 (Tex. Crim. App. 1997); see TEX. CODE CRIM. PROC. ANN. art. 21.02; Scoggan v. State, 799 S.W.2d 679, 680 n.3 (Tex. Crim. App. 1990). Because counsel could have reasonably decided that an objection to the indictment was unnecessary, we overrule this complaint of ineffective assistance.
The trial court instructed the jury, "You are instructed that the State is not bound by the date alleged in the indictment, but the State is required to prove that the offense was committed anytime prior to the return of the indictment that is within the limitations period."
3. Failing to Object to Extraneous Acts Admitted After an Article 38.37 Hearing Was Not Ineffective Assistance
In his third ground, Williams argues that counsel failed to object to inadmissible extraneous-offense evidence of Williams's sexual abuse of K.E. because it allegedly violated Rules 404(b) and 403 of the Texas Rules of Evidence. Williams claims that "the State presented no evidence demonstrating what material fact concerning [his] alleged sexual activity with C.N. was made more probable by proof of exposure of his penis or encouraging K.E. to kiss his buttocks years earlier."
K.E.'s testimony was admitted after a hearing under Article 38.37 of the Texas Code of Criminal Procedure. It was offered to show Williams's propensity for indecency with children and sexual desire for children. Because Article 38.37 allows such testimony notwithstanding Rule 404(b) and because counsel could have reasonably believed K.E.'s testimony passed the Rule 403 balancing test, Williams has not shown ineffective assistance of counsel.
We have previously explained,
By statute, when a defendant is tried for a sexual offense committed against a child under seventeen years of age, the State may, notwithstanding Rules 404 and 405 of the Texas Rules of Evidence, introduce evidence that the defendant has committed a separate sexual offense against another child "for any bearing the
evidence has on relevant matters, including the character of the defendant and acts performed in conformity with the character of the defendant."Price v. State, 594 S.W.3d 674, 679 (Tex. App.—Texarkana 2019, no pet.) (quoting TEX. CODE CRIM. PROC. ANN. art. 38.37, §§ 1-2). As a result, in a case like this one, Article 38.37 "permits the introduction of evidence 'in a trial of a defendant for the enumerated sexual crimes against children . . . that the defendant has committed certain offenses against a nonvictim of the charged offense.'" Id. (quoting Harty v. State, 552 S.W.3d 928, 933 (Tex. App.—Texarkana 2018, no pet.) (quoting Belcher v. State, 474 S.W.3d 840, 844 (Tex. App.—Tyler 2015, no pet.)).
At the Article 38.37 hearing, K.E. testified that, when she was eight, Williams exposed his buttocks and genitals to her during a game of "truth or dare" he was playing with both K.E. and C.N. and said Williams dared K.E. to kiss his buttocks in C.N.'s presence. Williams also dared C.N. and K.E. to kiss each other. In ruling that this extraneous-offense evidence was admissible under Article 38.37, the trial court found it sufficient to establish a separate offense beyond a reasonable doubt. Williams does not challenge the trial court's Article 38.37 finding. Because Article 38.37 allows the admission of extraneous-offense evidence notwithstanding Rule 404, trial counsel's failure to raise a futile Rule 404(b) objection was not ineffective assistance.
Next, "the admission of evidence under Article 38.37 'is limited by Rule 403's balancing test, which permits admission of evidence as long as its probative value is not substantially outweighed by its potential for unfair prejudice.'" Price, 592 S.W.3d at 680 (quoting Fahrni v. State, 473 S.W.3d 486, 492 (Tex. App.—Texarkana 2015, pet. ref'd) (quoting Bradshaw v. State, 466 S.W.3d 875, 882 (Tex. App.—Texarkana 2015, pet. ref'd)). However, Rule 403 "should be used sparingly to exclude relevant, otherwise admissible evidence that might bear on the credibility of either the defendant or complainant in such 'he said, she said' cases [involving sexual assault]." Bradshaw v. State, 466 S.W.3d 875, 883-84 (Tex. App.—Texarkana 2015, pet. ref'd) (quoting Hammer v. State, 296 S.W.3d 555, 562 (Tex. Crim. App. 2009)). Because evidence of separate sexual offenses is "probative on the issues of intent and a defendant's character or propensity to commit sexual assaults on children," Price, 594 S.W.3d at 680 (citing Bradshaw, 466 S.W.3d at 884), existing authority has found that the probative value of sexual offenses committed against nonvictims is not substantially outweighed by the "danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence." TEX. R. EVID. 403. Here, counsel could have believed that the extraneous-offense evidence had substantial probative value since C.N. was present during the extraneous offenses committed against K.E. As a result, counsel could have reasonably chosen to forego a Rule 403 objection because he believed, based on prior opinions authored by this Court, that the trial court would not abuse its discretion in overruling a Rule 403 objection.
Because we can fathom a reasonable trial strategy in counsel's failure to raise Rule 404(b) and 403 objections to K.E.'s testimony, we find that Williams has not met the first Strickland prong. We overrule this ineffective assistance claim.
4. Failure to Object to the Exclusion of the State's Expert from the Witness Sequestration Rule Was Not Ineffective Assistance
In his fourth ground, Williams argues that counsel should have ensured the exclusion of Davison, whom he characterizes as an "unnecessary witness," from the requirements of Rule 614, the witness sequestration rule.
Rule 614 of the Texas Rules of Evidence states, "At a party's request, the court must order witnesses excluded so that they cannot hear other witnesses' testimony." TEX. R. EVID. 614. However, "this rule does not authorize excluding . . . a person whose presence a party shows to be essential to presenting the party's claim or defense." TEX. R. EVID. 614(c).
At trial, the State asked that Davison be permitted to remain in the courtroom pursuant to Rule 614's exclusion for persons "essential to presenting the party's claim," TEX. R. EVID. 614(c), which has been interpreted to permit expert witnesses to remain in the courtroom as long as the proffering party meets "the burden of showing that the exemption applies," Franklin v. State, 459 S.W.3d 670, 680 (Tex. App.—Texarkana 2015, pet. ref'd) (quoting Allen v. State, 436 S.W.3d 815, 822 (Tex. App.—Texarkana 2014, pet. ref'd)). Conclusory statements do not satisfy this burden. Id. Although the State did not meet its burden in this case, counsel could have chosen not to object because the State designated Davison as an expert witness, counsel had knowledge of the substance of her testimony, and counsel could have reasonably believed that an objection would give the State an opportunity to show that Davison's presence in the courtroom was necessary for her to explain how C.N.'s testimony showed Williams exhibited grooming behaviors not readily understood by laypersons.
Because we will not second-guess counsel's strategy with the benefit of hindsight based on this silent record and can fathom a reason for failing to object to Davison's presence in the courtroom, we overrule Williams's fourth complaint of ineffective assistance.
5. Failure to Challenge Williams's Exculpatory Prior Statements Was Not Ineffective Assistance
In his fifth ground, Williams argues that counsel failed to challenge statements that Williams made to David Biggar, an investigator with the Bowie County Sherriff's Department. Biggar testified that Williams denied C.N.'s accusations during his interview. Williams admits that his statements to Biggar were exculpatory. Yet, he complains that the interview should have been excluded because Biggar's questioning revealed details of C.N.'s allegations, contained hearsay, and revealed Biggar's personal opinions about C.N.'s credibility.
There was a reasonable trial strategy for failing to object to statements made in Williams's interview with Biggar. The interview was exculpatory in nature. Although Biggar's questioning indicated belief of C.N.'s testimony and repeated her allegations, Williams consistently denied them. Counsel was likely aware that Williams would testify in his defense and could have believed the interview would serve to support Williams's testimony denying the allegations at trial. He could have decided that the interview showed consistency in Williams's story and served to make him a more credible witness. As a result, we find that Williams does not meet the first prong of the Strickland test.
6. Failure to Object to Williams's Statement to His Daughter Was Not Ineffective Assistance
In his sixth ground of ineffective assistance, Williams argues that counsel failed to challenge statements that Williams made to his daughter that "there's some stuff going on that he can't take back and that he did some things to" C.N. Williams's daughter added, "[Williams] didn't make it graphic," and said he hoped that it did not ruin his father/daughter relationship. Williams believes that, had counsel objected, the statement would have been excluded as hearsay and found unduly prejudicial under Rule 403.
Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. TEX. R. EVID. 801(d). However, Rule 801(e)(2)(A) of the Texas Rules of Evidence states that an opposing party's statement offered against the opposing party is not hearsay. Thus, counsel could have believed that Williams's statement qualified as an opposing party's statement under this Rule. See TEX. R. EVID. 801(e)(2)(A); Herring v. State, 202 S.W.3d 764, 766 (Tex. Crim. App. 2006); Trevino v. State, 991 S.W.2d 849, 853 (Tex. Crim. App. 1999) ("Rule 801(e)(2)(A) plainly and unequivocally states that a criminal defendant's own statements, when being offered against him, are not hearsay.").
Also, during opening statements, Williams focused on the fact that C.N.'s allegations came fifteen years after the alleged incidents and argued that this was "a case where the credibility of the witnesses [was] center stage. That includes [C.N.]." Williams could have chosen to forego a Rule 403 objection, not only because it could draw the jury's attention to the evidence, but because he did not wish to risk the possibility that the trial court would overrule his objection after deciding that the testimony was highly probative as to the issue of C.N.'s credibility and was not substantially outweighed by the concerns listed in Rule 403. Additionally, during cross-examination, counsel established that Williams did not confess to doing anything bad to C.N. and that his daughter was "having a hard time remembering some stuff." Williams could have decided that successful cross-examination of the daughter, who was the State's first witness, would be highly beneficial because it could implant an impression on the jury to remain critical of the State's evidence throughout trial.
Because ineffective assistance on this point is not firmly founded on the record, we overrule Williams's sixth argument.
7. Ineffective Assistance in Counsel's Cross-Examination of C.N. Is Not Shown
In his seventh ground of alleged ineffective assistance, Williams argues that counsel's cross-examination of C.N. was not "minimally effective" because he did not ask her about conflicts in her prior statements or why it took her so long to come forward with the allegations against Williams. "Cross-examination is inherently risky, and a decision not to cross-examine a witness is often the result of wisdom acquired by experience in the combat of trial." Ex parte McFarland, 163 S.W.3d 743, 756 (Tex. Crim. App. 2005) (orig. proceeding) (citing Coble v. State, 501 S.W.2d 344, 346 (Tex. Crim. App. 1973)). "Furthermore, cross-examination is an art, not a science, and [the decision not to cross-examine a witness] cannot be adequately judged in hindsight." Id. If unsuccessful, "cross-examination can serve to bolster the credibility of the witness[es] and underscore the very points that are sought to be impeached." Jones v. State, 500 S.W.3d 106, 115 (Tex. App.—Houston [1st Dist.] 2016, no pet.) (quoting Dannhaus v. State, 928 S.W.2d 81, 88 (Tex. App.—Houston [14th Dist.] 1996, pet. ref'd)). "Thus, unless there is a good basis on which to cross-examine . . . it can be more effective to refrain from cross-examining a damaging witness to minimize the impact of [her] testimony." Id. (quoting Dannhaus, 928 S.W.2d at 88).
Williams does not identify any alleged prior inconsistent statements made by C.N. in his brief.
Here, it is possible that counsel did wish to provide C.N. with the opportunity to explain any alleged prior inconsistent statements. Counsel could have decided not to ask why C.N. waited to report the allegations for fear of emphasizing the facts already drawn out by the State that C.N.'s sister was married to Williams, who told C.N. not to tell anyone about the abuse because he would go to jail. Such line of questioning could have resulted in further direct examination exploring any feelings of guilt surrounding her sister's relationship with Williams that C.N. may have in making her delayed outcry and could have ultimately made C.N. a more sympathetic witness. Because reasonable trial strategy supports counsel's forbearance from further cross-examination of C.N., we overrule this complaint.
8. Failure to Object to C.N.'s Sister's Testimony at Punishment Was Not Ineffective Assistance
At punishment, C.N.'s sister, B.W., testified, "As far as I understand, [C.N.] ha[d] depression, and when her depression got to where she was having suicidal thoughts, she decided to see a counselor." B.W. said that C.N. believed her suicidal thoughts were the result of Williams's acts of sexual abuse. Williams argues that counsel rendered ineffective assistance by failing to object to these statements on that ground that B.W. had no personal knowledge of why C.N. was seeing a counselor or had suicidal thoughts.
The record is silent on why counsel did not object to B.W.'s testimony. However, the omission may have been a part of a reasonable trial strategy because counsel could have believed that an objection (1) would draw the jury's attention to the evidence, (2) could lead the State into a damaging line of questioning designed to establish the basis of B.W.'s testimony, or (3) could lead to the State calling C.N. to testify that her suicidal thoughts were the result of Williams's actions. We overrule this eighth ground of ineffective assistance.
9. There Was No Cumulative Harm
In a separate, ninth complaint, Williams also argues that cumulative harm resulted from the above-mentioned complaints of ineffective assistance. The concept of cumulative error has been extended to ineffective assistance of counsel claims. See Chamberlain v. State, 998 S.W.2d 230, 238 (Tex. Crim. App. 1999) (citing Stahl v. State, 749 S.W.2d 826, 832 (Tex. Crim. App. 1988)). However, there is "no authority holding that non-errors may in their cumulative effect cause error." Bryant, 282 S.W.3d at 176 (quoting Chamberlain, 998 S.W.2d at 238). If individual claims of error lack merit, then there is no cumulative error. See Gamboa v. State, 296 S.W.3d 574, 585 (Tex. Crim. App. 2009).
10. Summation
We find that the silent record here is insufficient to overcome the presumption that counsel's conduct fell within the wide range of reasonable professional assistance. As a result, Williams has not met the first Strickland prong and fails to show that "no competent attorney would do what trial counsel did or no competent attorney would fail to do what trial counsel failed to do." Parmer v. State, 545 S.W.3d 724, 728 (Tex. App.—Texarkana 2018, no pet.). Consequently, we overrule Williams's nine points of error raising ineffective assistance of counsel.
III. Williams Failed to Preserve His Complaints Concerning the Cumulated Sentence
A defendant's sentence may run consecutively or concurrently "[i]f the accused is found guilty of more than one offense arising out of the same criminal episode" and "each sentence is for a conviction of" indecency with a child under seventeen or aggravated sexual assault of a child. TEX. PENAL CODE ANN. § 3.03(b)(2)(A). C.N. testified that she remembered one occasion where, in the same incident, Williams touched her breast, put his fingers into her vagina, and put her hand on his penis. By cumulating Williams's sentences, the trial court impliedly found that each offense arose out of the same criminal episode. Williams argues that the trial court erred in cumulating his sentences because "[t]he total term of confinement is cruel and unusual under the Eighth Amendment."
Williams does not argue that the trial court's implied finding was an abuse of discretion or that the evidence was insufficient to support the finding. Rather, he argues that no finding was made.
"As a prerequisite to presenting a complaint for appellate review, the record must show that" it "was made to the trial court by a timely request, objection, or motion that . . . stated the grounds for the ruling . . . with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context" and that either the trial court "ruled on the request, objection, or motion, either expressly or implicitly" or "refused to rule on the request, objection, or motion, and the complaining party objected to the refusal." TEX. R. APP. P. 33.1(a). We have previously found that this error preservation rule applies to a complaint that cumulated sentences constitute cruel and unusual punishment. Williamson v. State, 175 S.W.3d 522, 523 (Tex. App.—Texarkana 2005, no pet.); see Burney v. State, No. 06-19-00078-CR, 2019 WL 5444157, at *3 (Tex. App.—Texarkana Oct. 24, 2019, no pet.) (mem. op., not designated for publication); Dixon v. State, No. 06-03-00200-CR, 2004 WL 1301224, at *1 (Tex. App.—Texarkana June 14, 2004, pet. ref'd) (mem. op., not designated for publication). This is because an Eighth Amendment complaint must itself be preserved at trial. Navarro v. State, 588 S.W.3d 689, 690 (Tex. App.—Texarkana 2019, no pet.).
"Although unpublished opinions have no precedential value, we may take guidance from them 'as an aid in developing reasoning that may be employed.'" Rhymes v. State, 536 S.W.3d 85, 99 n.9 (Tex. App.—Texarkana 2017, pet. ref'd) (quoting Carrillo v. State, 98 S.W.3d 789, 794 (Tex. App.—Amarillo 2003, pet. ref'd)).
Because Williams did not raise the complaint that the trial court's stacked sentences resulted in cruel and unusual punishment, the issue was not preserved, and we must overrule it.
V. We Modify the Judgments to Correct the Spelling of Williams's Name
The clerk's record and reporter's record show that Williams's first name is "Johnathan." However, it is misspelled in the trial court's judgments as "Jonathan." Williams asks this Court to modify the trial court's judgments to correct the spelling of his name.
"We have the authority to modify the judgment to make the record speak the truth." Minter v. State, 570 S.W.3d 941, 944 (Tex. App.—Texarkana 2019, no pet.) (citing TEX. R. APP. P. 3.2(b); French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992); Rhoten v. State, 299 S.W.3d 349, 356 (Tex. App.—Texarkana 2009, no pet.)). To do so here, we must modify each judgment to reflect the correct spelling of Williams's first name.
VI. Conclusion
We modify the trial court's judgments to reflect that Williams's first name is spelled "Johnathan," not "Jonathan." As modified, we affirm the trial court's judgments.
Ralph K. Burgess
Justice Date Submitted: October 13, 2020
Date Decided: December 21, 2020 Do Not Publish