Roland Champion v. The State of Texas--Appeal from 226th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-06-00391-CR
Roland CHAMPION,
Appellant
v.
The State of TEXAS,
Appellee
From the 226th Judicial District Court, Bexar County, Texas
Trial Court No. 2003-CR-6809
Honorable Sid L. Harle, Judge Presiding

Opinion by: Rebecca Simmons, Justice

 

Sitting: Alma L. L pez, Chief Justice

Sandee Bryan Marion, Justice

Rebecca Simmons, Justice

 

Delivered and Filed: April 18, 2007

 

AFFIRMED

 

Appellant Roland Champion was convicted by a jury of aggravated sexual assault of a child and indecency with a child. The trial court assessed punishment at twenty-five years incarceration in the Texas Department of Criminal Justice - Institutional Division. On appeal, Champion asserts trial counsel rendered ineffective assistance. We affirm the judgment of the trial court.

Factual Background

On November 18, 2002, R.L., then thirteen years old, engaged in sexual intercourse with appellant Roland Champion, then thirty years old. Champion was indicted on aggravated sexual assault charges. At trial, Champion admitted to having intercourse with R.L. but asserted mistake of fact as his defense. Champion conceded he knew having intercourse with a thirteen-year-old was illegal, but R.L. told him she was seventeen and a virgin. The jury found Champion guilty of aggravated sexual assault of a child and indecency with a child.

Champion's trial counsel withdrew after the trial. Champion filed a motion for new trial, but failed to file a notice of appeal. The Court of Criminal Appeals granted his writ of habeas, allowing him to seek this out-of-time appeal. On appeal, Champion asserts trial counsel was deficient for failing to object to redacted medical records produced by the State and for failing to object to the jury charge.

Ineffective Assistance of Counsel

The Sixth and Fourteenth Amendments of the U.S. Constitution and Article I, Section 10 of the Texas Constitution guarantee the right to effective assistance of counsel at trial. U.S. Const. amends. VI, XIV; Tex. Const. art. I 10.

A. Strickland

To prove ineffective assistance of counsel, Champion must demonstrate, by a preponderance of the evidence, that trial counsel's performance was ineffective: 1) because it fell below an objective standard of reasonableness; and 2) there is a reasonable probability that but for counsel's deficiencies, the result of the proceeding would have been different. Rylander v. State, 101 S.W.3d 107, 109-10 (Tex. Crim. App. 2003) (citing Strickland v. Washington, 466 U.S. 668 (1984)). The failure to satisfy either prong of Strickland negates an appellate court's need to consider the other prong. Strickland v. Washington, 466 U.S. 668, 697 (1984). We review the record in light of all the circumstances, but are highly deferential to trial counsel and presume counsel's actions fell within the range of reasonable and professional assistance. See Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). Any claims of ineffective assistance of counsel must be firmly founded in the record. Thompson v. State, 9 S.W.3d 808, 813-814 (Tex. Crim. App. 1999).

B. Medical Records

Champion claims the redacted portions of a medical file presented by the State contain evidence that could show R.L. was not a virgin, as she represented to him. Although Texas Rule of Evidence 412 generally prohibits evidence of the victim's sexual activity, Champion argues trial counsel should have used the evidence to attack R.L.'s credibility. See Tex. R. Evid. 412. Because Champion's only theory of defense rested on mistake of fact, he suggests trial counsel was obliged to object to the redacted records.

In the absence of a developed evidentiary record, we are hesitant to presume trial counsel did not have a reasonable trial strategy when choosing not to object. Thompson, 9 S .W.3d at 813-814. Mistake of fact is not a recognized defense in Texas for aggravated sexual assault of a child or indecency with a child. See Black v. State, 26 S.W.3d 895, 898-99 (Tex. Crim. App. 2000) (en banc) (noting no proof of scienter, intent, or knowledge is required for these crimes when the victim is a child). See also Tex. Penal Code Ann. 21.11, 22.011(d)-(e); 22.021(d) (Vernon 2006 & Supp. 2006) (listing affirmative defenses to indecency with a child and aggravated sexual assault of a child charges). Counsel was not ineffective for failing to pursue a non-existent defense. See Roberson v. State, 852 S.W.2d 508, 511 (Tex. Crim. App. 1993) (en banc). See also Ex parte Chandler, 182 S.W.3d 350, 356 (Tex. Crim. App. 2005) (holding "reasonably competent counsel need not perform a useless or futile act"). We do not agree that counsel's failure to object to the records or pursue an unrecognized defense fell below an objective standard of reasonableness. Because Champion failed to demonstrate he meets the first prong of Strickland, we need not discuss the second prong. This appellate point is overruled.

C. Jury charge

Champion asserts the jury charge as given allowed the jury to render a non-unanimous verdict, in violation of the Texas Constitution and Texas Code of Criminal Procedure. Tex. Const. art. I, 10; Tex. Crim. Proc. Code Ann. art. 36.29(a) (Vernon 2006). Champion contends the charge did not specify that the jury was to reach a unanimous decision on each charge, thereby allowing the jury to convict him of different acts with less than a unanimity. The State counters the separate unanimity reminders were unnecessary because the offenses are separate and distinct, and were not presented in the disjunctive. Additionally, separate verdict forms were given for each count.

We agree the charges of aggravated sexual assault and indecency with a child are separate and distinct, and no further unanimity instructions were required. See Bottenfield v. State, 77 S.W.3d 349, 359 (Tex. App.--Fort Worth 2002, pet. ref'd) (holding unanimity requirement not violated when charge stated "two separate counts with two separate and distinct offenses in each case"). Furthermore, we must presume the jury followed the instructions as given in the charge. See Colburn v. State, 966 S.W.2d 511, 520 (Tex. Crim. App. 1998) (en banc). Champion has not shown how counsel's failure to object to this charge fell below a reasonable standard of representation, nor the reasonable probability of a different outcome as required by Strickland. We therefore overrule this appellate point.

Conclusion

Champion failed to prove, by a preponderance of the evidence, that trial counsel's representation fell below an objectively reasonable standard. Furthermore, he failed to demonstrate a reasonable probability that, but for counsel's actions or omissions, the outcome would have been different. As Champion did not meet either prong of Strickland, we affirm the judgment of the trial court.

Rebecca Simmons, Justice

 

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