Russell Kevin Thompson v. The State of Texas--Appeal from 122nd District Court of Galveston County

Affirmed and Memorandum Opinion filed May 8, 2007

Affirmed and Memorandum Opinion filed May 8, 2007.

In The

Fourteenth Court of Appeals

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NO. 14-05-01137-CR

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RUSSELL KEVIN THOMPSON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 122nd District Court

Galveston County, Texas

Trial Court Cause No. 03CR0733

M E M O R A N D U M O P I N I O N

Challenging his conviction for aggravated sexual assault of a child, appellant Russell Kevin Thompson contends the trial court violated his constitutional right to present a defense by refusing to admit evidence allegedly showing that the complainant=s uncle had sexually abused her. Appellant also asserts he was denied effective assistance of counsel. We affirm.

I. Factual and Procedural Background

Appellant was charged with aggravated sexual assault of a child younger than fourteen years of age. He pleaded Anot guilty.@ In the jury trial that followed, the State presented as its first witness the female child victim, M.Q., whose maternal grandmother, Mary Thompson, is married to appellant. M.Q. was nine years old at the time of the charged offense and twelve years old at the time of trial. She testified that appellant sexually assaulted her on two specific occasions. According to M.Q., both incidents took place in the apartment M.Q.=s grandmother shared with appellant.

Describing the first incident, M.Q. testified that in December 2001, she and her younger brother went to the apartment to spend the night. That evening, M.Q. went to sleep on the living room couch, only to be awakened some time later by appellant removing her shorts and underwear. M.Q. testified that after appellant removed her clothing, he spread her legs and put his mouth on the lower part of her private area. M.Q. described the second incident as taking place around July 4, 2002. On that occasion, she was staying with her grandmother and appellant, and she again was sleeping on the couch in the living room. According to M.Q., appellant woke her up by touching her arm or shoulder and then touched her bottom below her waist while exposing his penis.

After the State rested its case and before the defense presented any witnesses, the trial court held a hearing outside the presence of the jury to consider the propriety of admitting evidence allegedly showing that M.Q.=s uncle had sexually abused her prior to December 2001. The defense urged the trial court to admit this testimony; however, the trial court denied appellant=s request to present to the jury any evidence of this alleged previous incident. Thereafter, in presenting his case, appellant called only one witness, his wife. The jury found appellant guilty of the charged offense and assessed punishment at eighteen years= confinement in the Institutional Division of the Texas Department of Criminal Justice and a fine of $5,000.

II. Issues and Analysis

Appellant challenges his conviction, asserting the trial court denied him the right to present a defense under the Adue process clause of the Sixth Amendment of the United States Constitution.@ Additionally, appellant complains that he received ineffective assistance of counsel based on his trial counsel=s alleged failure to obtain an expert to assist in the cross-examination of an adverse witness and his counsel=s alleged failure to investigate and use an expert to present a defense.

A. Did appellant preserve error as to his first issue?

In his first issue, appellant contends the trial court=s exclusion of evidence of an alleged sexual offense against M.Q. by her uncle constituted a denial of his right to present a defense under the Adue process clause of the Sixth Amendment of the United States Constitution.@[1] Although the exact nature of the alleged constitutional violation is not clear, appellant appears to be asserting that, by refusing to admit this evidence regarding alleged prior sexual abuse by M.Q.=s uncle, the trial court violated appellant=s right to present a defense based on some provision of the United States Constitution. In the trial court, appellant asserted that this evidence was admissible under Texas Rule of Evidence 412(b) as relating to the motive or bias of M.Q. See Tex. R. Evid. 412(b). However, at no time in the trial court did appellant assert that the trial court=s refusal to admit this evidence violated his constitutional right to present a defense.[2] In fact, appellant did not assert any constitutional violation in the trial court. Therefore, appellant has failed to preserve error as to his first issue. See Reyna v. State, 168 S.W.3d 173, 179 (Tex. Crim. App. 2005) (holding appellant did not preserve error as to argument that exclusion of evidence violated Sixth Amendment because appellant did not refer to the constitution in the trial court and did not put the trial court on notice that he was alleging a constitutional violation); Eaves v. State, 141 S.W.3d 686, 690B91 (Tex. App.CTexarkana 2004, pet. ref=d) (holding appellant failed to preserve error as to trial court=s alleged violation of Sixth Amendment by refusal to admit evidence that child sexual-assault complainant previously had been sexually assaulted, given that appellant did not voice this argument in the trial court). Accordingly, we overrule appellant=s first issue.

B. Was appellant denied effective assistance of counsel?

In his second issue, appellant contends that his trial counsel was ineffective in failing to investigate the necessity of obtaining an expert to assist in trial preparation and presentation of appellant=s defense and in failing to use such an expert. In his third issue, appellant argues that his trial counsel was ineffective because he failed to obtain an expert to assist in the cross-examination of adverse witnesses such as M.Q. and M.Q.=s mother.[3] Both the United States and Texas Constitutions guarantee an accused the right to assistance of counsel. U.S. Const. amend. VI; Tex. Const. art. I, ' 10; Tex. Code Crim. Proc. art. 1.051 (Vernon 2005). This right necessarily includes the right to reasonably effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Ex parte Gonzales, 945 S.W.2d 830, 835 (Tex. Crim. App. 1997). To prove ineffective assistance of counsel, appellant must show that (1) trial counsel=s representation fell below an objective standard of reasonableness, based on prevailing professional norms; and (2) there is a reasonable probability that the result of the proceeding would have been different but for trial counsel=s deficient performance. Strickland, 466 U.S. at 688B92. Moreover, appellant bears the burden of proving his claims by a preponderance of the evidence. Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998).

In assessing appellant=s claims, we apply a strong presumption that trial counsel was competent. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). We presume counsel=s actions and decisions were reasonably professional and were motivated by sound trial strategy. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). When, as in this case, there is no proper evidentiary record developed at a hearing on a motion for new trial, it is extremely difficult to show that trial counsel=s performance was deficient. See Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). If there is no hearing or if counsel does not appear at the hearing, an affidavit from trial counsel becomes almost vital to the success of an ineffective-assistance claim. Stults v. State, 23 S.W.3d 198, 208B09 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d). The Court of Criminal Appeals has stated that it should be a rare case in which an appellate court finds ineffective assistance on a record that is silent as to counsel=s trial strategy. See Andrews, 159 S.W.3d 98, 103 (Tex. Crim. App. 2005). On a silent record, this court can find ineffective assistance of counsel only if the challenged conduct was A>so outrageous that no competent attorney would have engaged in it.=@ Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005) (quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001)).

As to trial counsel=s alleged failure to investigate the necessity of obtaining an expert to assist in trial preparation and presentation of appellant=s defense, there is no evidence in our record that appellant=s trial counsel failed to conduct such an investigation. Therefore, appellant has failed to carry his burden of proving ineffective assistance of counsel by a preponderance of the evidence.

Furthermore, as to the alleged ineffectiveness of appellant=s trial counsel in failing to investigate the need for an expert and in failing to use an expert witness, our record does not contain any explanation from counsel as to his trial strategy. When, as in this case, the record is silent as to trial counsel=s strategy, an appellate court may not speculate about why counsel acted as he did. See Toney v. State, 3 S.W.3d 199, 210 (Tex. App.CHouston [14th Dist.] 1999, pet. ref=d). In the absence of such testimony, it is difficult to meaningfully address appellant=s claims. See Davis v. State, 930 S.W.2d 765, 769 (Tex. App.CHouston [1st Dist.] 1996, pet. ref=d). We can only conclude appellant has failed to carry his burden of proving ineffective assistance of counsel by a preponderance of the evidence. See Bone, 77 S.W.3d at 830 (refusing to reverse on appellant=s claim of ineffective assistance of counsel in the absence of evidence explaining counsel=s decisions); Thompson, 9 S.W.3d at 813 (stating that unfounded allegations will not support a claim of ineffective assistance of counsel). Moreover, the record does not show that the alleged conduct of appellant=s trial counsel was so outrageous that no competent attorney would have engaged in it. See Goodspeed, 187 S.W.3d at 392. Furthermore, the record does not demonstrate what such an investigation would have revealed or how such an expert would have aided counsel=s cross examination of the State=s witnesses, his trial preparation, or his presentation of appellant=s defense. Therefore, appellant has not shown that there is a reasonable probability that the result of the proceeding would have been different but for trial counsel=s alleged ineffectiveness.

Finally, the cases on which appellant relies are not on point. See Ex parte Briggs, 187 S.W.3d 458, 465B70 (Tex. Crim. App. 2005) (concluding appellant=s trial counsel did not have a strategic motive for failing to hire an expert based on testimony of defendant=s trial counsel in habeas proceeding); Wright v. State, No. 01-05-00597-CR, 01-05-00599-CR, CS.W.3dC,C, 2006 WL 2076148, at *3B8 (Tex. App.CHouston [1st Dist.] Feb. 27, 2006, pet. ref=d) (concluding appellant=s trial counsel did not have a strategic motive for failing to hire an expert based on testimony of appellant=s trial counsel at hearing on motion for new trial). Accordingly, we overrule appellant=s second and third issues.

Having overruled all of appellant=s issues, we affirm the trial court=s judgment.

/s/ Kem Thompson Frost

Justice

Judgment rendered and Memorandum Opinion filed May 8, 2007.

Panel consists of Justices Frost, Seymore, and Guzman.

Do Not Publish C Tex. R. App. P. 47.2(b).

[1] The Sixth Amendment to the United States Constitution contains no due process clause, although it does contain a confrontation clause and a compulsory process clause that are mentioned in a quotation in appellant=s argument. See U.S. Const. amend. VI. The Fifth and Fourteenth Amendments to the United States Constitution contain due process clauses. See U.S. Const. amend. V, amend. XIV, ' 1.

[2] At one point in the trial, appellant=s counsel asked the trial court if he could ask appellant=s wife whether she believed that her husband was being framed. When the court indicated that appellant=s counsel could not ask this question, appellant=s counsel commented, AThat=s limiting our defense. That=s our defense.@ This comment does not amount to an objection on constitutional grounds, and it is not directed at alleged evidence that M. Q.=s uncle previously had sexually abused her. Therefore, this comment did not preserve error as to appellant=s first issue.

[3] In his appellate brief, appellant also asserts that he was denied effective assistance of counsel because his trial counsel failed to do the following:

(1) cross-examine the complainant and her mother;

(2) put the outcry in proper context;

(3) explain the problems with the State=s investigation;

(4) identify and investigate defense witnesses;

(5) contact and interview potential witnesses;

(6) contact and interview the complainant and her mother, who was the outcry witness;

(7) contact and interview the Children=s Protective Services caseworker who conducted a videotaped interview of the complainant;

(8) interview the State=s expert witness;

(9) conduct a hearing outside the presence the jury in accordance with Texas Rule of Evidence 705(b);

(10) attend pre-trial conferences; and

(11) file defense motions in order to present a defense.

However, other than simply identifying them, appellant has not briefed the foregoing alleged instances of ineffective assistance or provided either authority or record citations for them. Appellant=s cryptic references to instances of alleged ineffectiveness, without adequate discussion of the record or authorities, are insufficient to present these issues for appellate review. Because these issues are not mentioned elsewhere, much less adequately briefed or analyzed, and because they do not appear to be part of any larger argument, they are waived. See Hankins v. State, 132 S.W.3d 380, 385 (Tex. Crim. App. 2004) (stating issue inadequately briefed because appellant failed to provide any argument or authority in support of contention); Swearingen v. State, 101 S.W.3d 89, 100 (Tex. Crim. App. 2003) (finding issue inadequately briefed because appellant failed to apply law to facts as required under appellate rules); Jensen v. State, 66 S.W.3d 528, 545 (Tex. App.CHouston [14th Dist.] 2002, pet. ref=d) (concluding that A[b]ecause appellant=s argument on this point of error contains no citations to the record, he has waived appellate review of his complaint@). In any event, appellant has not briefed or shown how there is a reasonable probability that the result of the proceeding would have been different but for any of these alleged instances of ineffective assistance.