Coker, Travis v. The State of Texas--Appeal from 161st District Court of Ector County

Becker v. State COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
)

TRAVIS COKER,

)
No. 08-02-00014-CR)

Appellant,

)
Appeal from)

v.

)
161st District Court)

THE STATE OF TEXAS,

)
of Ector County, Texas)

Appellee.

)
(TC# B-28,794)
MEMORANDUM OPINION

Travis Coker, pro se, appeals from his conviction for aggravated sexual assault of a child. (1) Appellant waived his right to a jury trial and entered a plea of not guilty. The trial court found Appellant guilty and assessed punishment at imprisonment for a term of forty years. We affirm.

FACTUAL SUMMARY

In 1999, twelve-year-old B.F. lived with T.F., her mother, in Odessa, Texas. Appellant, who was T.F.'s boyfriend, lived with them. T.F. was pregnant with Appellant's child. (2) B.F. had observed Appellant hit T.F. during their arguments and he had been arrested for assault and family violence on several occasions. One weekend between March and May of 1999, B.F.'s mother went to the store and left her at home alone. Appellant had gone to work earlier that day. Appellant called around lunchtime and asked to speak to T.F., so B.F. told him that she had gone to the store. Appellant hung up. About fifteen minutes later, Appellant arrived at the house and entered B.F.'s bedroom. Appellant pushed B.F. onto the bed and sexually assaulted her by placing his penis in her vagina. B.F. fought Appellant but she could not stop him because he was stronger. Appellant told B.F. that if she told anyone, he would kill her and her mother. Due to her experience with Appellant, B.F. believed him and she did not immediately report the assault. B.F. later discovered that Appellant had been watching her through a hole in the wall between her bathroom and bedroom.

T.F. recalled that B.F.'s behavior changed during this time period in that she stayed in her room all of the time and would not eat supper with them. B.F., who had diabetes, became suicidal and began refusing to take her insulin. To prevent anyone from coming into her room, B.F. also tied a rope to her bedroom door and nailed it to her closet. T.F. began noticing that when B.F. went into her room, Appellant would sometimes go into the bathroom adjacent to B.F.'s bedroom and remain in there with the lights turned off. On one occasion, T.F. walked into the dark bathroom and saw a ray of light shining through a hole in the wall. T.F. could see through the hole into B.F.'s bedroom. Appellant claimed that he was in the bathroom because he had a stomach virus but T.F. got a knife from the kitchen and threatened to kill Appellant if he ever looked at B.F. or did anything to her.

In the year following the assault, B.F. began having increasing health problems. During June 2000, she went to visit her father in West Virginia and while there began experiencing abdominal pain. A doctor determined that B.F. had genital herpes. B.F. did not tell the doctor or her parents that she had been raped but instead told them that she had gotten herpes from someone other than Appellant. She lied to them because she was still afraid of Appellant.

On October 10, 2000, Appellant assaulted T.F. and was arrested for family violence. As a result, T.F. obtained an emergency protective order. When T.F. told B.F. about the protective order, she began questioning her mother whether the order would prevent Appellant from ever being around them. Later that evening, T.F. heard B.F. crying in her room. T.F. went in the bedroom and B.F. told her that Appellant had sexually assaulted her. B.F. explained that she felt more comfortable telling her mother given that a protective order had been issued. B.F. also admitted that she feared her mother and Appellant might get back together so she wanted to tell her the truth before that happened.

After charges were filed against Appellant, T.F. reported to the Ector County Sheriff's Department that someone in a passing vehicle had fired shots while she was taking out the trash. Claudia Bretz, an investigator with the Ector County Sheriff's Department, went to the scene. T.F. had previously filed reports that Appellant was harassing her and she suspected that he had been responsible for the shots being fired. As Bretz spoke with T.F., Appellant called on the telephone. After T.F. spoke with him a few minutes, she indicated that Bretz should get on the other telephone. Bretz identified herself to Appellant and he informed her that he was calling about visitation with his daughter. Appellant, who sounded intoxicated, would not allow Bretz to speak but instead told her that no law could keep him from visiting his daughter. He also assured Bretz that he would see to it that T.F. went to prison for the false charges that had been made against him. He volunteered to Bretz that he did not have anal or vaginal intercourse with B.F. although he had thought about it several times. Bretz told Appellant that he needed to quit calling T.F. for the remainder of the evening because it appeared to her that his calls were harassing. She also informed him that T.F., who had a temporary protective order, was seeking a permanent protective order.

Appellant's mother, Pam Denton, testified that T.F. called her some time after October 12, 2000, and stated that B.F. had accused Appellant of raping her, but T.F. did not believe her. Denton denied calling T.F. and asking her not to report the allegations.

Appellant testified at trial in his own behalf. He was incarcerated from May 31, 1999 until November 6, 1999 and he was incarcerated on other dates as well while living with T.F. Appellant had known since 1996 or 1997 that he had genital herpes. Appellant denied sexually assaulting B.F. and further denied watching her through a hole in the bathroom wall.

At the conclusion of the evidence, the trial court found Appellant guilty of aggravated sexual assault of a child as alleged in the indictment. In seven issues, Appellant challenges the legal and factual sufficiency of the evidence and contends that he was denied the effective assistance of counsel at trial.

INEFFECTIVE ASSISTANCE

In Issues One through Five, Appellant argues that he was denied the effective assistance of counsel at trial because counsel failed to object to the admission of certain medical records. The proper standard for determining claims of ineffective assistance under the Sixth Amendment is the two-step analysis adopted by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). See Hernandez v. State, 988 S.W.2d 770, 771-72 (Tex.Crim.App. 1999). Under the first prong, the defendant must show that counsel's performance was deficient, to the extent that counsel failed to function as the "counsel" guaranteed by the Sixth Amendment. Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994). The defendant must demonstrate that his attorney's representation fell below an objective standard of reasonableness under prevailing professional norms. Vasquez v. State, 830 S.W.2d 948, 949 (Tex.Crim.App. 1992). Under the second prong, the defendant must establish that counsel's deficient performance prejudiced the defense. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; Jackson, 877 S.W.2d at 771. Prejudice is established by a showing that there is a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698; Jackson, 877 S.W.2d at 771; Hernandez v. State, 726 S.W.2d 53, 55 (Tex.Crim.App. 1986). A reasonable probability is a probability sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698; Jackson, 877 S.W.2d at 771. Under the Strickland test, the appellant bears the burden of proving ineffective assistance by a preponderance of the evidence. Jackson, 877 S.W.2d at 771; Calderon v. State, 950 S.W.2d 121, 126 (Tex.App.--El Paso 1997, no pet.).

When we review a claim of ineffective assistance of trial counsel, we must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable, professional assistance and the appellant must overcome the presumption that the challenged conduct can be considered sound trial strategy. Jackson, 877 S.W.2d at 771; Calderon, 950 S.W.2d at 126. 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. See Mitchell v. State, 68 S.W.3d 640, 642 (Tex.Crim.App. 2002); Thompson v. State, 9 S.W.3d 808, 814 (Tex.Crim.App. 1999). An appellant challenging trial counsel's performance therefore faces a difficult burden and "a substantial risk of failure." See Thompson, 9 S.W.3d at 813.

Appellant filed a motion for new trial but he did not raise any of his complaints regarding ineffective assistance of counsel. Consequently, the record is silent with respect to the basis for counsel's decision whether to object to the medical records. For this reason alone, Appellant has failed to rebut the presumption that counsel's challenged conduct could be considered sound trial strategy.

B.F.'s medical records from Medical Center Hospital in Odessa (MCH) are contained in State's Exhibit 2 and consist of approximately 200 pages. State's Exhibit 2 contains a three page report from B.F.'s doctor in West Virginia, Dr. James Brown, who examined her and made a clinical diagnosis that she had genital herpes. Dr. Kenneth Adams, who participated in the sexual assault examination of B.F., specifically relied on this report in forming his conclusion that the non-specific red bumps he found in B.F.'s genital area were caused by the Herpes Simplex Virus (HSV). Appellant argues that counsel should have objected because this particular portion of the record is not admissible under Tex.R.Evid. 803(6) as it is not a medical record created by someone at MCH. Regardless of whether Dr. Brown's report was properly admitted as part of State's Exhibit 2, Dr. Adams could have properly testified to the basis for his diagnosis even though part of the data he relied on is hearsay. See Tex.R.Evid. 703 (the facts or data relied on by an expert witness need not be admissible in evidence). Dr. Brown's report is also cumulative of all the other evidence at trial showing that B.F. had been infected with HSV. Therefore, counsel did not render deficient performance by failing to object to the inclusion of this report in State's Exhibit 2.

Additionally, Appellant contends that counsel should have objected on the ground that the State failed to lay a proper foundation because it did not establish that it was the regular practice of MCH to make the records. There is no evidence in the appellate record that had trial counsel made these objections the State would have been unable to meet it. Under Strickland, prejudice is established by a showing that there is a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different. Appellant has failed to prove by a preponderance of the evidence that the result of the proceeding would have been different had counsel objected.

Appellant next faults counsel for failing to object to several pages of medical records pertaining to a premature baby which were inadvertently included in State's Exhibit 2. These records are scattered throughout State's Exhibit 2. While these records obviously should not have been included in B.F.'s medical records, Appellant does not identify how he has been prejudiced by the mistake.

Finally, Appellant argues that counsel rendered deficient performance by failing to object to admission of Appellant's medical records on the ground that the State failed to lay a proper foundation under Rule 803(6). More specifically, he claims that the State did not elicit from the custodian that it was the regular practice of the medical provider to make the records or that the person making the record or submitting the information had knowledge of the events being recorded. As was the case with B.F.'s medical records, Appellant has failed to show that the State would have been unable to establish these elements if counsel had objected. Further, other evidence established that Appellant had been infected with HSV prior to the sexual assault. Because Appellant did not carry his burden under Strickland, we overrule Issues One through Five.

SUFFICIENCY OF THE EVIDENCE

In Issues Six and Seven, Appellant challenges the legal and factual sufficiency of the evidence to support his conviction because he was incarcerated during the time that the assault allegedly occurred.

Standards of Review

In reviewing the legal sufficiency of the evidence to support a criminal conviction, we must review all the evidence, both State and defense, in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560, 573 (1979); Geesa v. State, 820 S.W.2d 154, 159 (Tex.Crim.App. 1991). This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic to ultimate facts. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789, 61 L. Ed. 2d at 573. The jury is entitled to draw reasonable inferences from the evidence. Benavides v. State, 763 S.W.2d 587, 588-89 (Tex.App.--Corpus Christi 1988, pet. ref'd). The jury may use common sense and apply common knowledge, observation, and experience gained in the ordinary affairs of life when giving effect to the inferences that may reasonably be drawn from the evidence. Griffith v. State, 976 S.W.2d 686, 690 (Tex.App.-- Tyler 1997, pet. ref'd). We do not resolve any conflict of fact or assign credibility to the witnesses, as it was the function of the trier of fact to do so. See Adelman v. State, 828 S.W.2d 418, 421 (Tex.Crim.App. 1992); Matson v. State, 819 S.W.2d 839, 843 (Tex.Crim.App. 1991). Instead, our duty is only to determine if both the explicit and implicit findings of the trier of fact are rational by viewing all of the evidence admitted at trial in a light most favorable to the verdict. Adelman, 828 S.W.2d at 422. In so doing, any inconsistencies in the evidence are resolved in favor of the verdict. Matson, 819 S.W.2d at 843. Further, the standard of review is the same for both direct and circumstantial evidence cases. Geesa, 820 S.W.2d at 158.

When conducting a factual sufficiency review, we consider all of the evidence, both admissible and inadmissible, but we do not view it in the light most favorable to the verdict. Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996); Levario v. State, 964 S.W.2d 290, 295 (Tex.App.--El Paso 1997, no pet.). We review the evidence weighed by the jury that tends to prove the existence of the elemental fact in dispute and compare it with the evidence that tends to disprove that fact. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000); Jones v. State, 944 S.W.2d 642, 647 (Tex.Crim.App. 1996). A defendant challenging the factual sufficiency of the evidence may allege that the evidence is so weak as to be clearly wrong and manifestly unjust, or in a case where the defendant has offered contrary evidence, he may argue that the finding of guilt is against the great weight and preponderance of the evidence. See Johnson, 23 S.W.3d at 11. Although we are authorized to set aside the fact finder's determination under either of these two circumstances, our review must employ appropriate deference and should not intrude upon the fact finder's role as the sole judge of the weight and credibility given to any evidence presented at trial. See Johnson, 23 S.W.3d at 7. We are not free to reweigh the evidence and set aside a verdict merely because we feel that a different result is more reasonable. Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App. 1997); Clewis, 922 S.W.2d at 135.

Review of the Evidence

Appellant argues that the evidence is legally insufficient because he was incarcerated from May 31, 1999 until November 6, 1999 and therefore could not have committed the assault. Taking the evidence in the light most favorable to the guilty verdict, B.F. testified that the sexual assault occurred sometime between March and May of 1999. She recalled that it was warm, she was in the sixth grade and school was still in session. Given that Appellant was not incarcerated until May 31, 1999, the evidence is legally sufficient to support a finding that he committed the assault.

Turning to the factual sufficiency review, Appellant asserts that the weight of the evidence showed that the assault occurred in October of 1999 rather than March. B.F. admitted that she was not entirely sure of the date on which the assault occurred. On cross-examination, defense counsel asked B.F. whether she had told an interviewer at the Harmony House that the assault took place in May of 1999. She did not recall stating that during the interview but insisted that the assault occurred sometime between March and May because the weather was warm and she was in the sixth grade. Appellant argues that B.F. testified that the assault took place a couple of months after her thirteenth birthday in August of 1999, but that is a misreading of B.F.'s testimony. She testified as follows:

[The prosecutor]: Now, as far as when this happened, you can't really pinpoint a date, can you?

 

[B.F.]: No.

 

[The prosecutor]: Why is that?

 

[B.F.]: I don't -- because I really don't remember because it has been a long time, you know.

 

[The prosecutor]: Did you take out a calendar and put a special check mark on that date or something, so that date would be recorded in history?

 

[B.F.]: No.

 

[The prosecutor]: But tell us about the details that you do remember about how that -- about that day that makes you feel it was March or May?

 

[B.F.]: Because it was warm outside and it was getting close to my birthday. I remember that, because it was like a couple of months after I had my birthday -- my 13th birthday. And it seems like it was around March or May. [Emphasis added].

 

At first glance and taking one sentence out of context, B.F. appeared to testify that the assault took place after her birthday. But when her testimony is considered as a whole, she plainly stated that the assault occurred before her birthday. Her statement that "it was like a couple of months after I had my birthday" appears to mean that "it was like a couple of months after [that] I had my birthday." Appellant also relies on the testimony of Sergeant Bobby Luffman to show that the assault occurred in October of 1999. Luffman set up an interview for B.F. at Harmony House. The interview took place on October 23, 2000. When asked by the prosecutor whether B.F. disclosed when the assault took place, Luffman responded "approximately a year ago" and "a year before the interview." He admitted, however, that he did not have any information in his report regarding whether the offense actually took place in May of 1999. The interviewer, Eve Flores, also testified that B.F. had delayed disclosing the offense for a year.

The evidence regarding when the assault occurred is conflicting but B.F. consistently testified that it took place sometime between March and May of 1999. Neither Luffman nor Flores attempted to pinpoint the date of the offense but rather estimated how long B.F. had delayed making a report. It was the responsibility of the factfinder to resolve the conflicts in the evidence and weigh the credibility of the witnesses. Having reviewed all of the evidence under the appropriate standard, we conclude that the finding of guilt is not against the great weight and preponderance of the evidence. Issues Six and Seven are overruled. The judgment of the trial court is affirmed.

 

May 27, 2004

ANN CRAWFORD McCLURE, Justice

 

Before Panel No. 1

Larsen, McClure, and Chew, JJ.

 

(Do Not Publish)

1. Appellant was represented by appointed counsel at trial. After being properly and fully admonished by the trial court, Appellant rejected appointed counsel and insisted on self-representation for purposes of appeal.

2. The child, a daughter, was born in August 1999.