Tony Ray Jones v. State of Texas--Appeal from 70th District Court of Ector County

Opinion filed August 9, 2007

In The

Eleventh Court of Appeals

__________

   No. 11-05-00235-CR

__________

TONY RAY JONES, Appellant

V.

STATE OF TEXAS, Appellee

On Appeal from the 70th District Court

Ector County, Texas

Trial Court Cause No. A-31,689

O P I N I O N

The jury convicted Tony Ray Jones of aggravated sexual assault of a child and assessed his punishment at confinement in the Institutional Division of the Texas Department of Criminal Justice for a term of ninety-nine years. Appellant raises four issues on appeal. The first and second issues concern the service of a particular juror. In his third issue, appellant alleges that trial counsel acted ineffectively by Aopening the door@ to prejudicial evidence. In his fourth issue, appellant challenges the trial court=s admission of expert testimony. We affirm.

Background Facts

We note at the outset that appellant does not challenge the sufficiency of the evidence supporting his conviction. C.M.D., the victim, was appellant=s fourteen-year-old stepdaughter. She testified that appellant had sexual intercourse with her several times over the course of a six-month period. Some of the episodes occurred during a period when her mother was incarcerated. The last encounter occurred while the family was living in a small travel trailer. A physical altercation ensued between appellant and C.M.D.=s mother when the mother observed appellant attempting to have sexual intercourse with C.M.D.

Service of Juror

Attorney David Greenhaw previously served as appellant=s counsel in the underlying proceeding for a brief period. His representation of appellant did not end amicably. Attorney Greenhaw=s wife, Elaine Greenhaw, was selected to serve on the jury. The trial court discovered her relation to Attorney Greenhaw soon after empaneling the jury. Both the prosecutor and appellant=s trial counsel informed the trial court that they were not aware of Mrs. Greenhaw=s connection to the previous defense counsel until the court advised them of the fact after jury selection.[1]

The trial court questioned Mrs. Greenhaw outside of the presence of the other jurors regarding her knowledge about the case. During the questioning, the trial court did not reveal to Mrs. Greenhaw that her husband had previously served as appellant=s counsel. Instead, the trial court premised its questioning of Mrs. Greenhaw on the fact that her husband was Ainvolved in a lot of criminal practice.@ Mrs. Greenhaw stated that her husband knew that she had been selected to serve on the jury but that they had not discussed the case. The trial court then instructed Mrs. Greenhaw to not discuss Athis case at all@ with her husband. The trial court also informed Mrs. Greenhaw that it would likely question her again at the end of the proceedings to determine her compliance with the court=s instruction. The trial court then permitted appellant=s trial counsel to question Mrs. Greenhaw. Appellant=s trial counsel asked if she had told her husband the name of the case being tried. She stated that she did not tell her husband the name of the case but that he had been in the courthouse that day and that he knew what case was being tried. Mrs. Greenhaw further stated, however, that they had not discussed the case.

After the trial court and appellant=s trial counsel concluded their questioning of Attorney Greenhaw, appellant=s trial counsel moved for a mistrial on the basis of Mrs. Greenhaw=s relation to Attorney Greenhaw. Trial counsel advised the trial court that he overlooked her connection to Attorney Greenhaw during jury selection and that he would have either moved to have her stricken for cause or exercised a peremptory strike against her.[2] In overruling the motion, the trial court stated that it did not believe that Mrs. Greenhaw had concealed anything and that it did not believe that a mistrial would be proper without a showing that Mrs. Greenhaw had done something improper. Appellant=s trial counsel responded to the trial court=s ruling by asking to question Mrs. Greenhaw further. Specifically, appellant=s trial counsel wanted to question Mrs. Greehaw about any discussions that she may have had with Attorney Greenhaw about appellant. The trial court overruled this request.

At the conclusion of the punishment phase, the trial court asked Mrs. Greenhaw if she had discussed the case with her husband. She replied that she had not discussed it with him.

Appellant alleges in his first issue that his trial counsel rendered ineffective assistance of counsel in failing to either challenge Mrs. Greenhaw for cause or use a peremptory strike on her. The Sixth Amendment guarantees the right to reasonably effective assistance of counsel in a state criminal proceeding. Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001); see U.S. Const. amend. VI. To determine whether appellant=s trial counsel rendered ineffective assistance, 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). The second prong requires a showing that counsel=s errors were so serious as to deprive the defendant of a fair trial. Strickland, 466 U.S. at 687. Prejudice is demonstrated when the defendant shows Aa reasonable probability that, but for counsel=s unprofessional errors, the result of the proceeding would have been different.@ Id. at 694. Although it is possible that a single egregious error of omission or commission by appellant=s counsel constitutes ineffective assistance, counsel=s actions must be judged by the Atotality of the representation@ rather than by isolated acts or omissions of trial counsel. Thompson, 9 S.W.3d at 813; see Jackson v. State, 766 S.W.2d 504, 508 (Tex. Crim. App. 1985).

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. The record on direct appeal is usually inadequate because it is silent as to trial counsel=s strategy. Appellant=s ineffective assistance complaint regarding Mrs. Greenhaw=s service on the jury is somewhat atypical because trial counsel stated on the record that his omission was an oversight as opposed to the product of trial strategy. Even if we were to assume that appellant=s trial counsel=s failure to exclude Mrs. Greenhaw from serving on the jury fell below an objective standard of reasonableness, appellant must establish by a reasonable probability that he was harmed. We conclude that appellant has not met this burden. Appellant bases his prejudice argument on the contention that it was Ahighly unlikely@ that Mrs. Greenhaw had not discussed the case with her husband. Appellant=s speculation about what Mr. and Mrs. Greenhaw possibly discussed does not rise to the level of a reasonable probability that the outcome of the trial would have been different.

Moreover, Mrs. Greenhaw denied ever discussing the case with her husband when the trial court and appellant=s counsel questioned her after the jury was empaneled. Appellant is essentially asserting that we must disregard the trial court=s acceptance of her responses. The trial court is in the best position to evaluate a prospective juror=s sincerity and ability to be fair and impartial. See Mount v. State, 217 S.W.3d 716, 722 (Tex. App.CHouston [14th Dist.] 2007, no pet.). Accordingly, we give great deference to the trial court in matters concerning the sincerity of a juror=s answers. Id.

We are mindful of isolated cases where courts have recognized an implied bias on the part of a juror. In Morales v. State, 217 S.W.3d 731, 735-36 (Tex. App.CEl Paso 2007, no pet.), the court held that an assistant district attorney working in the same office as the prosecutor in a criminal case had an implied bias as a matter of law despite her statements that she could be a fair and impartial juror. In Reynolds v. State, 294 S.W.2d 108, 109 (Tex. Crim. App. 1956), the Texas Court of Criminal Appeals held that the wife of the district attorney who actively prosecuted the case also possessed an implied bias that precluded her service as a juror. The doctrine of implied bias is limited to those extreme situations where the relationship between a prospective juror and some aspect of the litigation is such that it is highly unlikely that the average person could remain impartial. Ruckman v. State, 109 S.W.3d 524, 528 (Tex. App.CTyler 2000, pet. ref=d). The doctrine is inapplicable in this case, however, because there is no evidence that Mrs. Greenhaw was aware that her husband previously served as defense counsel. Without this evidence, appellant cannot establish that he was prejudiced by Mrs. Greenhaw=s service as a juror. Appellant=s first issue is overruled.

In his second issue, appellant asserts that the trial court erred in overruling his motion for mistrial with respect to Mrs. Greenhaw=s service as a juror. The denial of a motion for mistrial is reviewed for an abuse of discretion. Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999). In addition to arguing that the trial court abused its discretion in overruling the motion for mistrial, appellant also asserts that the trial court abused its discretion in not permitting appellant=s trial counsel to ask Mrs. Greenhaw additional questions. We disagree with both contentions.

The trial court allowed appellant=s trial counsel to question Mrs. Greenhaw after the jury was selected. Trial counsel took advantage of this opportunity by asking her a question. Trial counsel did not seek to ask Mrs. Greenhaw additional questions until after the initial questioning had concluded and she had returned to the jury room. We conclude that the trial court did not abuse its discretion in refusing to permit trial counsel to ask Mrs. Greenhaw additional questions. If a prospective juror states her position clearly and without reservation, the trial court does not err in refusing to permit further questioning. See Mount, 217 S.W.3d at 723. Furthermore, the trial court exercised caution in not revealing to Mrs. Greenhaw that her husband had previously served as defense counsel. This information may have been revealed to her if she were asked additional questions.

We also conclude that the trial court did not abuse its discretion in overruling the motion for mistrial. As noted previously, the trial court is in the best position to assess the veracity of a juror=s responses. The trial court accepted Mrs. Greenhaw=s denial that she had not discussed the case with her husband. We are unwilling to reject the trial court=s determination that her responses were true. Appellant=s second issue is overruled.

Evidence of Civil Lawsuits

Appellant testified on his own behalf during the guilt/innocence stage of trial. At the conclusion of appellant=s direct examination, his trial counsel asked him about his previous criminal record. Trial counsel then asked him about civil lawsuits that he filed while awaiting trial. Appellant responded that he had filed lawsuits against the sheriff and workers at Child Protective Services because he was outraged about the charges brought against him. The prosecutor began her cross-examination of appellant with additional questions about the civil lawsuits. Appellant testified on cross-examination that he also sued two previous attorneys that had represented him on the underlying charges.[3]

Appellant asserts in his third issue that his trial counsel provided him with ineffective assistance of counsel by eliciting prejudicial testimony about the civil lawsuits that he had filed and opening the door to further questioning about the lawsuits from the prosecutor. We disagree. The record does not set out trial counsel=s reasoning for asking appellant about the civil lawsuits. In the absence of this evidence, we are unable to determine if trial counsel asked these questions as a part of sound trial strategy. Defense attorneys often ask their clients about prejudicial matters during direct examination to minimize the damage that will be caused by this information being revealed during cross-examination. Appellant=s third issue is overruled.

Expert Testimony

The State called Cindy Trifon, a therapist at Harmony Home Children=s Advocacy Center, as a witness during the guilt/innocence phase. Trifon counseled C.M.D. on a weekly basis at the time of trial. In his fourth issue, appellant contends that the trial court erred in permitting Trifon to testify about the symptoms of sexual assault that C.M.D. exhibited. Appellant asserts that Trifon did not possess the requisite qualifications to present expert testimony of this type.

A trial court must inquire if an expert witness qualifies as an expert by reason of his or her knowledge, skill, experience, training, or education. Tex. R. Evid. 702; Vela v. State, 209 S.W.3d 128, 131 (Tex. Crim. App. 2006). The expert=s background must be tailored to the specific area of expertise in which the expert desires to testify. Vela, 209 S.W.3d at 133. We will not disturb a trial court=s determination that a witness is or is not qualified as an expert unless a clear abuse of discretion is shown. Morales v. State, 32 S.W.3d 862, 865 (Tex. Crim. App. 2000). An appellate court should consider three criteria when determining whether a trial court abused its discretion in evaluating a witness=s qualifications as an expert: (1) Ais the field of expertise complex@; (2) Ahow conclusive is the expert=s opinion@; and (3) Ahow central is the area of expertise to the resolution of the lawsuit.@ Vela, 209 S.W.3d at 131; Rodgers v. State, 205 S.W.3d 525, 527-28 (Tex. Crim. App. 2006).

Trifon testified that she had a master=s degree in psychology and that she was a licensed professional counselor in Texas. She stated that, in order to be a licensed professional counselor in Texas, a candidate must have a practicum of 450 hours and an internship of 2,000 hours. Trifon has been a practicing licensed professional counselor for ten years. She specialized in counseling abused children, including sexually abused children, and she had been a Aplay therapist@ for five years. Trifon testified that she had counseled over 1,000 children.

Appellant=s trial counsel objected to the prosecutor=s question to Trifon to identify the symptoms of sexual abuse that C.M.D. exhibited on the basis that Trifon was not qualified to answer the question. The trial court overruled the objection. Trifon subsequently testified that C.M.D. exhibited symptoms of depression, anxiety, significant weight gain, anger, and acting out. Trifon stated that the symptoms that C.M.D. exhibited are similar to the symptoms she had seen in other children who had been sexually abused.

We conclude that the trial court did not abuse its discretion in determining that Trifon was qualified to testify about the symptoms of sexual abuse exhibited by C.M.D. Trifon provided the court with a record of extensive experience in counseling sexually abused children. She tied the symptoms that she observed in C.M.D. with what she had observed in other sexually abused children. Appellant=s fourth issue is overruled.

This Court Ruling

The judgment of the trial court is affirmed.

PER CURIAM

August 9, 2007

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

Panel consists of: Wright, C.J.,

McCall, J., and Strange, J.

[1]Mrs. Greenhaw did not respond in the affirmative to a general question to the jury panel during voir dire that asked if anyone knew appellant or his trial counsel.

[2]The trial court subsequently included Mrs. Greenhaw=s juror questionnaire as a part of the appellate record on its own motion. Mrs. Greenhaw listed her ASpouse=s Name@ as ADavid@ and her ASpouse=s Occupation@ as ALawyer.@

[3]Appellant did not identify the attorneys that he had sued. The prosecutor informed the trial court during a bench conference that appellant had not sued Attorney Greenhaw. At the trial court=s suggestion, the prosecutor did not seek additional information about appellant=s civil lawsuits.