Rogers, Anthony James v. The State of Texas--Appeal from 338th District Court of Harris County

Affirmed and Opinion filed November 7, 2002

Affirmed and Opinion filed  November 7, 2002.

In The

Fourteenth Court of Appeals

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NOS. 14-01-00950-CR and

14-01-00951-CR

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ANTHONY JAMES ROGERS, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 338th District Court

Harris County, Texas

Trial Court Cause Nos. 878,691 and 878,690

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O P I N I O N

Anthony James Rogers appeals two convictions for causing serious bodily injury to a child ( S.R. ) by striking (cause number 01-00951, the striking conviction ) and by failing to provide reasonable medical care (cause number 01-00950, the neglect conviction )[1] on the grounds that: (1) the evidence was legally insufficient to support his conviction; (2) he was denied effective assistance of counsel; and (3) the trial court erred by admitting extraneous offense and hearsay testimony over his objection. We affirm.

Sufficiency of the Evidence

Appellant s first point of error in the neglect conviction challenges the legal sufficiency of the evidence[2] to show that he assumed care, custody, and control of S.R., as required by section 22.04 of the Texas Penal Code.[3] In particular, appellant argues the State presented no evidence showing: how much financial support, if any, he contributed to S.R. s care; whether he paid rent for the apartment she lived in; or that he provided her medical insurance.

The following evidence supports the jury s verdict that appellant assumed custody and control of S.R. Appellant was S.R. s biological father. At the time S.R. was injured, appellant had been living in her home continuously for several months. Appellant was also participating in the therapy[4] administered by Children s Protective Services ( CPS ) for its intensive reunification of S.R. with her family following foster care. He was the sole breadwinner and a primary care giver for S.R. at the time of her injury. He was often present when the CPS worker visited. He knew details about S.R. s day-to-day life,[5] knew about past injuries she had received, and helped care for her when she was ill. Appellant had also discussed with a co-worker and S.R. s mother the possibility of S.R. obtaining medical coverage under his policy. Appellant told a CPS worker that he wanted to show S.R. that he was her dad and threatened that, if CPS ever had to remove his children again, he would take them to prevent it from doing so.

Reviewing this evidence in the light most favorable to the verdict, we conclude that a rational trier of fact could have found from it that, by his acts, words, and course of conduct, appellant had assumed care, custody, or control of S.R. Accordingly, we overrule appellant s first point of error in the neglect conviction.

Ineffective Assistance of Counsel

Appellant s first and second issues in the striking conviction and his second and third issues in the neglect conviction contend that he was denied effective assistance of counsel during the guilt phase of trial in that his counsel failed to object to the admission of: (1) hearsay testimony from S.R. s former foster parent, Rhonda Topping; and (2) extraneous offense evidence that appellant had assaulted S.R. s mother.

Ineffectiveness Standard

To prevail on a claim of ineffective assistance, an appellant must show that: (1) his counsel s performance was deficient, i.e., it fell below the objective standard of professional norms; and (2) this deficient performance prejudiced his defense, i.e., there is a reasonable probability that, but for his counsel s unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687 (1984); Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). To be sustained, an allegation of ineffective assistance must be firmly and affirmatively demonstrated by the record. Bone, 77 S.W.3d at 835.

In reviewing ineffectiveness claims, scrutiny of counsel s performance must be highly deferential. Strickland, 466 U.S. at 689. A court must indulge, and a defendant must overcome, a strong presumption that the challenged action might be considered sound trial strategy under the circumstances. Id. Therefore, a defendant must prove by a preponderance of the evidence that there is, in fact, no plausible professional reason for the challenged act or omission. Bone, 77 S.W.3d at 836. In addition, a fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight and to evaluate the conduct from counsel s perspective at the time. Strickland, 466 U.S. at 689. Thus, the presumption that an attorney s actions were sound trial strategy ordinarily cannot be overcome absent evidence in the record of the attorney s reasons for his conduct. See Mallett v. State, 65 S.W.3d 59, 67 (Tex. Crim. App. 2001). Because the record in this case contains neither an affidavit nor testimony from appellant s trial counsel indicating his reasons for not making these evidentiary objections, we lack a sufficient record to sustain appellant s ineffective assistance claims, each of which will be discussed further below.

Outcry Testimony

Appellant contends that his trial counsel was ineffective in failing to object to hearsay outcry testimony by Topping because Topping was not the first person over age 18 to whom S.R. made statements concerning the offense. Appellant asserts that the first such statements were instead made to Houston Police Officer Soriano.

A failure to object to admissible evidence is not ineffective assistance of counsel. McFarland v. State, 845 S.W.2d 824, 846 (Tex. Crim. App. 1992). A statement is not inadmissible as hearsay if, among other things, it: (1) describes the alleged offense; (2) was made by the child against whom the offense was allegedly committed; and (3) was made to the first person, 18 years of age or older, other than the defendant, to whom the child made a statement about the offense. See Tex. Code Crim. Proc. Ann. art. 38.072, 2(a)(2) (Vernon Supp. 2002).

In this case, it is undisputed that S.R. s statements to Topping were made after her statements to Officer Soriano. However, S.R. s statements to Soriano pertained to being struck by her mother, not appellant; whereas S.R. s statements to Topping pertained to being hit by appellant, as well as S.R. s mother. Because the striking offense in this case was that committed by appellant, and not S.R. s mother, Topping was the first person over 18 to whom S.R. made a statement about the offense alleged in this case. Therefore, Topping s testimony was admissible and defense counsel was not ineffective for failing to object to it.

Extraneous Offense Evidence

Appellant contends that his counsel s failure to object to the extraneous offense evidence, that appellant had assaulted S.R. s mother, was ineffective assistance because the evidence served only to portray appellant as violent and was therefore inadmissible to show that the offense against S.R. was committed in conformity with that violent character.[6]

Appellant contends that there is a reasonable probability that, but for his counsel s failure to object to this evidence, the result of the proceeding would have been different. However, he provides no analysis of the record in this case to support any such conclusion. Accordingly, he has failed to sustain his burden to establish ineffective assistance on this ground.

Finally, appellant asserts that, if his counsel s failures to object to the hearsay and extraneous offense evidence were insufficient individually to show ineffective assistance, their cumulative effect and counsel s performance as a whole denied appellant effective assistance. However, such a vague, inarticulate sense that counsel could have provided a better defense is not a legal basis for finding counsel constitutionally incompetent. Bone, 77 S.W.3d at 836. Accordingly, appellant s first and second issues in the striking conviction, and second and third issues in the neglect conviction, are overruled.

Medical Hearsay

Appellant s third point of error in the neglect conviction and fourth point of error in the striking conviction contend that the trial court erred in overruling his objection to the hearsay testimony of Dr. Bruce Perry, S.R. s therapist.

A statement is not excluded by the hearsay rule if it is made for the purpose of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment. Tex. R. Evid. 803(4). Moreover, a child s statements to a mental health therapist describing abusive acts and identifying the abuser are reasonably pertinent to medical diagnosis and treatment and are properly admitted pursuant to Rule 803(4). See id.; Macias v. State, 776 S.W.2d 255, 259 (Tex. App. San Antonio 1989, pet. ref d).

In this case, Dr. Perry testified that the clinical team called him to see S.R. because she had been seriously abused, he had expertise in the area of abuse, and the team wanted his input on how to approach some of the clinical and other problems they were facing. The details S.R. gave Dr. Perry were related to the abuse and who caused it and were made for the purpose of medical diagnosis and treatment. Therefore, appellant s third point of error in the neglect conviction and fourth point of error in the striking conviction do not demonstrate that the trial court abused its discretion in overruling appellant s hearsay objection to this testimony. Accordingly, those points of error are overruled, and the judgment of the trial court is affirmed.

/s/ Richard H. Edelman

Justice

Judgment rendered and Opinion filed November 7, 2002.

Panel consists of Justices Edelman, Seymore, and Guzman.

Do Not Publish Tex. R. App. P. 47.3(b).

[1] In a single trial, a jury found appellant guilty of both offenses and sentenced him to confinement for sixty years for the neglect conviction and seventy five years for the striking conviction.

[2] In reviewing legal sufficiency, we review all of the evidence 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, 319 (1979); Vasquez v. State, 67 S.W.3d 229, 236 (Tex. Crim. App. 2002).

[3] Section 22.04 provides, in relevant part:

(a) A person commits an offense if he . . . intentionally, knowingly, or recklessly by omission, causes to a child . . .:

(1) serious bodily injury;

* * * *

(b) An omission that causes [serious bodily injury] is conduct constituting an offense under this section if:

* * * *

(2) the actor has assumed care, custody, or control of a child . . . .

* * * *

(d) The actor has assumed care, custody, or control if he has by act, words, or course of conduct acted so as to cause a reasonable person to conclude that he has accepted responsibility for protection, food, shelter, and medical care for a child . . . .

Tex. Pen. Code Ann. 22.04(a), (b), (d) (Vernon Supp. 2002).

[4] Appellant had also previously participated in unspecified family therapy and therapy with S.R. s mother.

[5] When S.R. came home after living with foster parents, appellant complained to a CPS worker that she did not know how to brush her teeth, use the restroom alone, or clean herself even though he and her mother had previously taught her to do those things.

[6] See Tex. R. Evid. 404(b) (evidence of other wrongs is not admissible to prove the character of a person in order to show action in conformity therewith but may be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident).