Balarama Perkins v. The State of Texas--Appeal from 35th District Court of Brown County

Opinion filed January 25, 2007

In The

Eleventh Court of Appeals

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   No. 11-05-00088-CR

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   BALARAMA PERKINS, Appellant

V.

STATE OF TEXAS, Appellee

On Appeal from the 35th District Court

Brown County, Texas

Trial Court Cause No. CR16998

O P I N I O N

Balarama Perkins appeals his conviction by a jury of the offense of sexual assault of a child younger than seventeen years of age. Tex. Pen. Code Ann. ' 22.011(a)(2)(A), (c)(1) (Vernon Supp. 2006). The jury assessed appellant=s punishment at fourteen years confinement. In a single point of error, appellant argues that he received ineffective assistance of counsel at trial. We affirm.

Background Facts

The State charged appellant with sexual assault of a child under Section 22.011(a)(2)(A) of the Penal Code. Section 22.011(a)(2)(A) provides that a person commits the offense of sexual assault if the person intentionally or knowingly causes the penetration of the anus or sexual organ of a child by any means. Section 22.011(c)(1) defines Achild@ as a person younger than seventeen years of age and who is not the spouse of the actor. In this cause, the indictment alleged that appellant, on or about June 24, 2003, Aintentionally or knowingly caused the penetration of the female sexual organ of [K.L.H.], a child who was then and there younger than 17 years of age and not the spouse of [appellant], by [appellant=s] sexual organ.@

The evidence at trial showed that, at the time of the conduct charged in the indictment, K.L.H. was fifteen years old and appellant was twenty years old. The evidence also showed that K.L.H. was not the spouse of appellant. K.L.H. testified that she and appellant had a sexual relationship. She said that, during the months of May and June 2003, she and appellant had sexual intercourse a total of eleven times. Appellant does not challenge the legal or factual sufficiency of the evidence supporting his conviction.

Issue on Appeal

Appellant contends that his trial counsel rendered ineffective assistance of counsel during the guilt/innocence phase of the trial in two respects: (1) by failing to make an opening statement; and (2) by failing to cross-examine K.L.H. Appellant did not raise his ineffective-assistance-of- counsel claim in a motion for new trial.

Ineffective-Assistance-of-Counsel Claim

To determine whether appellant=s trial counsel rendered ineffective assistance at trial, we must first determine whether appellant has shown that counsel=s representation fell below an objective standard of reasonableness and, if so, then determine whether there is a reasonable probability that the result would have been different but for counsel=s errors. Wiggins v. Smith, 539 U.S. 510 (2003); Strickland v. Washington, 466 U.S. 668 (1984); Andrews v. State, 159 S.W.3d 98 (Tex. Crim. App. 2005); Thompson v. State, 9 S.W.3d 808 (Tex. Crim. App. 1999). We must indulge a strong presumption that counsel=s conduct fell within the wide range of reasonable professional assistance; and an appellant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Strickland, 466 U.S. at 689; Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000). A[C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.@ Strickland, 466 U.S. at 690. An allegation of ineffective assistance must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson, 9 S.W.3d at 814. Under normal circumstances, the record on direct appeal will not be sufficient to show that counsel=s representation was so deficient and so lacking as to overcome the presumption that counsel=s conduct was reasonable and professional. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). Rarely will the record on direct appeal contain sufficient information to permit a reviewing court to fairly evaluate the merits of such a serious allegation. Id.

At the conclusion of the State=s opening statement, appellant=s trial counsel indicated that he did not want to make an opening statement at that time. Because an opening statement provides the State a preview of the defense=s strategy, defense counsel may make a tactical decision not to make an opening statement. See Standerford v. State, 928 S.W.2d 688, 697 (Tex. App.CFort Worth 1996, no pet.). Appellant concedes in his brief that his trial counsel=s decision not to make an opening statement at the conclusion of the State=s opening statement may be considered reasonable trial strategy.

After the State rested, appellant=s trial counsel stated that he did not wish to make an opening statement. Appellant then rested without calling any witnesses to the stand. Appellant contends that his trial counsel=s failure to give an opening statement after the close of the State=s evidence constituted ineffective assistance of counsel. Appellant=s trial counsel may have made the decision not to make an opening statement because he was not going to call any witnesses. However, the record is silent as to appellant=s trial counsel=s trial strategy, if any, in electing not to make an opening statement. Appellant did not raise his ineffective-assistance-of-counsel claim in a motion for new trial nor did he present any evidence in support of his claim to the trial court. When a record is silent as to trial counsel=s strategy, we Awill not conclude the challenged conduct constituted deficient performance unless the conduct was so outrageous that no competent attorney would have engaged in it.@ Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001). The record does not establish that appellant=s trial counsel=s decision not to make an opening statement was so outrageous that no competent attorney would have engaged in it.

Appellant also contends that his trial counsel=s failure to cross-examine K.L.H. constituted ineffective assistance of counsel. The decision not to cross-examine a witness is often the result of wisdom acquired by experience in the combat of trial. Miniel v. State, 831 S.W.2d 310, 324 (Tex. Crim. App. 1992); Coble v. State, 501 S.W.2d 344, 346 (Tex. Crim. App. 1973); Dannhaus v. State, 928 S.W.2d 81, 88 (Tex. App.CHouston [14th Dist.] 1996, pet. ref=d); Matthews v. State, 830 S.W.2d 342, 347 (Tex. App.CHouston [14th Dist.] 1992, no pet.). The record demonstrates that appellant=s trial counsel thought he might alienate the jury if he cross-examined K.L.H. Appellant=s trial counsel stated the following during closing argument:

I chose not to cross-examine [K.L.H.]. Nothing to be gained by that. There is nothing that can be accomplished other than, perhaps, alienating you in giving her a gruff and difficult cross-examination.

A decision not to cross-examine a witness based on fear of alienating a jury or coming across as too aggressive may be based on reasonable trial strategy. Navarro v. State, 154 S.W.3d 795, 799 (Tex. App.CHouston [14th Dist.] 2004, pet. ref=d). There is nothing in the record to show that appellant=s trial counsel=s decision not to cross-examine K.L.H. was anything other than trial strategy. Appellant has failed to overcome the presumption that his trial counsel=s conduct was reasonable and professional. Bone, 77 S.W.3d at 833.

Appellant has failed to show that his trial counsel=s representation fell below an objective standard of reasonableness. Therefore, appellant has failed to meet the first prong of the Strickland test. Additionally, appellant has not met the second prong of the Strickland test. The record does not demonstrate a reasonable probability that the outcome of the proceeding would have been different if appellant=s trial counsel had given an opening statement and had cross-examined K.L.H. We overrule appellant=s point of error.

This Court=s Ruling

We affirm the judgment of the trial court.

TERRY McCALL

JUSTICE

January 25, 2007

Do not publish. See Tex. R. App. P. 47.2(b).

Panel consists of: Wright, C.J.,

McCall, J., and Strange, J.