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

MEMORANDUM OPINION
No. 04-06-00198-CR
Waymon EZELL,
Appellant
v.
The STATE of Texas,
Appellee
From the 226th Judicial District Court, Bexar County, Texas
Trial Court No. 2005-CR-2699
Honorable Fred Shannon, Judge Presiding

Opinion by: Karen Angelini, Justice

 

Sitting: Karen Angelini, Justice

Sandee Bryan Marion, Justice

Steven C. Hilbig, Justice

 

Delivered and Filed: September 26, 2007

 

AFFIRMED AS REFORMED

Waymon Ezell was convicted of sexual assault by force and indecency with a child and was sentenced to six years imprisonment. He appeals, contending (1) the evidence was legally and factually insufficient to support his conviction; (2) the trial court's judgment places him in double jeopardy; (1) (3) the trial court erred in refusing to allow him to cross-examine the complaining witness regarding her prior sexual conduct; and (4) he received ineffective assistance of counsel. We affirm the judgment as reformed.Factual and Procedural Background

On September 11, 2003, when the events giving rise to this prosecution occurred, the complainant, A.P., was sixteen years old. A month earlier, A.P. had been with her mother when she met Ezell in front of a record store and gave him her phone number. A day or so later, Ezell called her, and during that month, Ezell and A.P. spoke on the phone about twice a day. When A.P. was asked if she was interested in Ezell, who was also known as "Pooh," she replied, "In a way."

Before September 11, 2003, Ezell had never been inside A.P.'s home; however, on one previous occasion, he had come to her house and talked with her in her front yard.

On the night of September 11, 2003, A.P. and her brother, J.P., were at home while both their parents were at work. Ezell rang the doorbell, and J.P., who was fourteen years old at the time, answered it and let him in. When Ezell entered the home, A.P. was asleep in her bed. According to A.P., she woke up when Ezell came into her room, locked the door, and sat on her bed. He then kissed her and "kept messing with [her]." A.P. told Ezell to leave her alone, emphasizing that she was not a "fast girl." But, Ezell kept touching her, "trying to rub [her] and grab [her] arms and move [her] arms." He slowly pulled her pants down. A.P. then told him to stop; however, she did not fight Ezell because she was afraid her brother, who was smaller than Ezell, would try to fight him and get hurt. According to A.P., Ezell then took off her pants, got on top of her, put his penis inside her vagina, and started having sex with her. She kept telling him to "stop and get off of [her]." She tried as hard as she could to push him off. She then saw that her brother had popped the lock to her bedroom with a knife and was saying something about their dad calling. When J.P. entered the bedroom and saw what was happening, he also told Ezell to get off of his sister. Ezell then pulled his penis out of A.P. and got dressed. He did not leave the home until he heard the phone ring. After Ezell left, A.P. stayed in the bed. She did not call anyone, nor did she talk to J.P. about what had happened.

A.P. testified she did not want to have sex with Ezell. She further testified that "[she] didn't really know what was happening to [her]." Later, however, she did admit that she really did know what was happening but "didn't want to realize it." She explained that she never thought something like that would happen to her - she had seen it on television but did not believe it actually happened in real life.

The day after the assault, while at school, A.P. told her cousin what had happened. Her cousin told her to talk to the school social worker who then told A.P. to tell her mother about the assault. According to A.P., at first, she did not want to tell her mother because she was not allowed to have anyone in the house when her mother was not there (she later admitted, however, that she had previously had someone over to her house while her mother was not home). And, she was scared to tell her mother because she did not want her mother to think something bad could happen to her. Nevertheless, she called her mother, who picked her up from school and took her to the hospital.

J.P., A.P.'s brother, testified that on the night of the assault, he heard the doorbell and answered the door. According to J.P., a man, who identified himself as "Pooh," was standing there. Because J.P. knew "Pooh" had talked to his sister, he let "Pooh" in and took him to his sister's room. When he heard his sister saying "Get off of me, stop", he returned to his sister's room but could not enter because her door was locked. So, he popped the lock with a knife. When he got the door open, he saw Ezell on top of A.P. He told Ezell, "You . . . get the f... off my sister." J.P. then left the room and called the house phone so he could say his dad had called. He went back to A.P.'s room and said his dad had called. According to J.P., at the time of the assault he had been eating some chicken. So, when Ezell came out of A.P.'s room, Ezell asked J.P. if he could have some of the chicken.

The sexual assault nurse examiner for the hospital where A.P. was taken testified that she examined A.P. According to the nurse examiner, "[A.P.] was clever," "talk[ed] easily with family and staff," and "made frequent eye contact," which according to the nurse "gives you an idea if maybe they are being truthful or not." The nurse found no bruises or scratches on A.P. Nor was there trauma to the vaginal area. According to the nurse, the history she took from A.P. included the following:

Patient states, "He had me pinned down on the bed. Somehow he got my clothes off and did, you know, what boys do. I was yelling at him to get off me, get off me. He had kissed me on the cheek and touched me on the thigh. He kept holding me down by my shoulders."

 
Discussion

In her first two issues, Ezell contends the evidence is legally and factually insufficient to support his conviction for sexual assault by force. Specifically, he argues the State did not prove the required element of physical force or violence.

In a legal sufficiency review, we view the evidence in the light most favorable to the verdict and then determine whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Prible v. State, 175 S.W.3d 724, 729-30 (Tex. Crim. App.), cert. denied, 546 U.S. 962 (2005). In a factual sufficiency review, we view all the evidence in a neutral light and will set the verdict aside only if the evidence is so weak that the verdict is clearly wrong and manifestly unjust, or the contrary evidence is so strong that the standard of proof beyond a reasonable doubt could not have been met. Id. at 730-31.

Ezell was charged with placing his male sexual organ in A.P.'s sexual organ without her consent by intentionally and knowingly compelling A.P. to submit and participate by the use of physical force or violence. See Tex. Penal Code Ann. 22.011(a)(1)(A), (b)(1) (Vernon Supp. 2006). In a sufficiency of the evidence review regarding use of force or violence, we look, not to the amount of resistance by the victim, but to the acts of compulsion of the actor. Wisdom v. State, 708 S.W.2d 840, 842-43 (Tex. Crim. App. 1986); Gonzales v. State, 2 S.W.3d 411, 415 (Tex. App.--San Antonio 1999, no pet.). The issue is not the degree of physical resistance by the victim but rather whether sufficient evidence exists to show the defendant compelled the victim's submission by actual force. Gonzales, 2 S.W.3d at 415. And, we review the facts of each case to determine whether force was used. Id.; Smith v. State, 719 S.W.2d 402, 403 (Tex. App.--Houston [1st Dist.] 1986, no pet.).

The facts in this case show that Ezell came into A.P.'s room, locked the door, sat on her bed and "kept messing with [her]" even though she told him to leave her alone. Further, although she told Ezell to stop, he touched her, tried to rub her, grabbed her arms, moved her arms, and eventually pulled her pants down. He then got on top of her, put his penis inside her vagina, and had sex with her despite her telling him to stop and get off of her. According to A.P., she tried as hard as she could to push Ezell off of her. She told the nurse examiner that even though she was yelling at Ezell to get off of her, he pinned her down on the bed and held her down by her shoulders. When viewing this evidence in the light most favorable to the verdict, we find that any rational trier of fact could have found the essential element, the use of force, of sexual assault beyond a reasonable doubt. Thus, the evidence was legally sufficient. See Gonzales, 2 S.W.3d at 415 (holding that evidence of force legally sufficient where appellant "threw" or "laid" victim back on the couch and then, while sexually assaulting her, lay down on top of her to prevent her from moving).

Ezell urges us to consider the evidence factually insufficient, focusing on evidence that (1) Ezell and A.P. were involved in a dating relationship; (2) Ezell had been to A.P.'s house before; (3) A.P. was a fully developed young lady; (4) A.P.'s mother was present when A.P. gave Ezell her phone number; (5) A.P. did not yell out or ask her brother to call the police or her parents; (6) she did not bring up the incident for about a week; (7) after the incident, Ezell stayed for a while and ate chicken; and (8) there was no physical evidence of force or violence.

However, although the evidence shows that A.P. and Ezell had been talking regularly on the phone for about a month before the incident and that Ezell had talked to A.P. once in her front yard, there is no conclusive evidence that A.P. and Ezell were dating or in a relationship. Nor does the fact that A.P. was fully developed or that her mother was aware A.P. had given Ezell her phone number dictate against a finding that Ezell forced A.P. to have sex with him. A.P. explained that the reason she did not call out to her brother for help was because she was afraid he would get hurt. And, although Ezell contends A.P. did not tell anyone about the incident for a week, the evidence shows she reported it the next day. Further, that Ezell ate a piece of chicken before he left the house could simply indicate he was in no hurry to leave; it does not necessarily show that he did not force himself on A.P. And, finally, physical evidence is not necessary for a finding of force. Therefore, viewing all the evidence in a neutral light, the jury was rationally justified in finding guilt beyond a reasonable doubt. Therefore, we hold that the evidence was factually sufficient.

Ezell also complains that he should have been allowed to cross-examine A.P. regarding her prior sexual conduct pursuant to Texas Rule of Evidence 412. We review a trial court's ruling on the admissibility of evidence under an abuse of discretion standard. Montgomery v. State, 810 S.W.2d 372, 378 (Tex. Crim. App. 1990). As long as the trial court's ruling was within the zone of reasonable disagreement, we will not interfere with the ruling. Id.

Rule 412 provides that in a sexual assault case, evidence of instances of past sexual behavior of the victim are not admissible unless, among other things, the evidence relates to motive or bias of the victim. Tex. R. Evid. 412(b)(2)(C). Further, to be admissible, the probative value of the evidence must outweigh the danger of unfair prejudice. Id. 412(b)(3).

At trial, in an attempt to develop evidence that would invoke this exception to the rule against allowing evidence of past sexual behavior, Ezell's attorney questioned A.P. outside the presence of the jury. Ezell' s attorney wanted the jury to know that, although A.P. claimed she did not know what was happening, in fact, she did know because she had had sex before. And, Ezell's attorney wanted to question her about her testimony that she was scared to tell her mother about the incident because she was not allowed to have someone visiting in her home while her parents were not present. Specifically, Ezell's attorney explained that he wanted to show A.P. was afraid that if she was examined, her mother would discover she had previously engaged in sexual activities.

When asked, outside the presence of the jury, whether, in fact, she did know what was happening when Ezell was on top of her, A.P. replied, "Well, I was trying to blank it out of my mind. I didn't want to realize it." A.P. admitted that recently, before the incident involving Ezell, she had had sex with someone else. Ezell's counsel argued to the trial court that the fact that A.P. had recently had sex with someone else yet stated that she did not know what was happening during the incident with Ezell went to her credibility as a witness.

Further, when asked whether the reason she did not want to report to her mother what had happened was because she knew that if she did, her mother would discover that she had had sex before with someone else, A.P. replied "No." She then testified that her prior sexual experience had occurred while her mother was at work. Thus, according to Ezell's counsel, A.P.'s credibility was also in question because of her statement about not wanting her mother to find out that she had had someone over when, in fact, she had an ongoing pattern of having someone over for the purpose of having sex.

The trial court denied Ezell's request to question A.P. in front of the jury on these matters, stating the need to go into her past sexual behavior, on the question of motive or bias, was not sufficiently great. Further, the trial court stated that, without going into A.P.'s prior sexual conduct, Ezell could question A.P. regarding whether she knew what was happening and whether having someone visiting in her house when her mother was at work was a violation of her mother's rule. In fact, Ezell did question A.P. on these matters in the presence of the jury. A.P. explained that she did know what was happening, but just did not want to realize it. She testified she would not think something like that would happen to her - that she had seen it on television, but did not think it would actually happen in real life. When asked about her fear of telling her mother about what had happened, A.P. said that, although she had had someone at her house when her mother was not there, not wanting her mother to find out about that was not the reason she did not want to tell her mother about the incident with Ezell.

We hold that the trial court did not abuse its discretion in excluding the evidence regarding A.P.'s prior sexual behavior. It was clear from A.P.'s testimony that, although she stated she did not know what was happening when Ezell was on top of her, she was not referring to the fact that Ezell was having sex with her, but rather to the fact that he was sexually assaulting her. And, although Ezell characterizes his presence at A.P.'s house for the purpose of having sex with A.P. as part of an on-going pattern of A.P. having people over for the purpose of having sex, the evidence does not support this conclusion. The evidence, which was elicited outside the presence of the jury, shows A.P. had had sex with one other person at her home while her parents were at work. The fact that she was afraid to tell her mother about Ezell for fear her mother would find out about her prior sexual activity in no way impeaches her credibility regarding whether Ezell forced her to have sex with him. Thus, we find the evidence was not material to the issue of A.P.'s credibility. Further, even if it were material, Ezell has failed to show the probative value outweighed its potential prejudicial effect. See Wheeler v. State, 79 S.W.3d 78, 86-88 (Tex. App.--Beaumont 2002, no pet.).

Lastly, Ezell claims he received ineffective assistance of counsel. Specifically, Ezell focuses on his trial counsel's failure to object to (1) the prosecutor's argument which, in effect, commented on Ezell's right to remain silent in violation of the Fifth Amendment; (2) the jury's conviction on two counts that was later entered as two judgments; (2) and (3) blatant hearsay evidence.

We measure a claim of ineffective assistance of counsel against the two-prong test established by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 687 (1984). See Hernandez v. State, 726 S.W.2d 53, 55-57 (Tex. Crim. App. 1986) (applying Strickland test). The appellant must first show that his attorney's performance was deficient, i.e., that his assistance fell below an objective standard of reasonableness. Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). Second, assuming the appellant has demonstrated deficient assistance, it is necessary to affirmatively prove prejudice. Id. In other words, the appellant must show a reasonable probability that, but for his attorney's unprofessional errors, the result of the proceeding would have been different. Id.

Ezell contends the prosecutor violated his Fifth Amendment right by arguing the following to the jury:

. . . the defense has not put on a case, which is their right. And you do not consider that in any way. The only thing I caution you on is that that means you make your choice based on the evidence you have heard.

 

Ezell argues this statement amounts to a blatant attack on his right to remain silent. The State counters that the argument about which Ezell complains was not a direct comment on Ezell's failure to testify.

To find reversible error because of an allusion to the failure of an accused to testify, we must look at the language from the standpoint of the jury, and the implication that the language used referred to such failure to testify must be a necessary one. Swallow v. State, 829 S.W.2d 223, 225 (Tex. Crim. App. 1992). If the language can reasonably be construed to refer to a failure to present evidence other than from the defendant's own testimony, it is not a comment on the failure to testify. Id. But, if the language points to a lack of evidence that only the defendant can personally supply, it is error. Id. Further, it is acceptable for the prosecutor to recognize that the defendant possesses a right not to testify and that the State respects that right. See Fuentes v. State, 991 S.W.2d 267, 275 (Tex. Crim. App. 1999). Such a comment is distinguishable from cases where the State comments negatively on the defendant's failure to testify. Id.

Here, the prosecutor's argument merely recognized the defendant's right not to put on a case. The argument was not a reference to the defense's failure to present evidence that only Ezell himself could personally supply. Instead, the argument pointed out to the jury that the defense chose, as was its right, not to call any witnesses. Thus, because the prosecutor's statement did not amount to reversible error, counsel was not ineffective for failing to object to it.

Ezell further claims his trial counsel was ineffective for failing to object to hearsay testimony from the sexual assault nurse who examined A.P. Specifically Ezell points to the nurse's testimony of what A.P. had told her:

He had me pinned down on the bed. Somehow he got my clothes off and did, you know, what boys do. I was yelling at him to get off me, get off me. He had kissed me on the cheek and touched me on the thigh. He kept holding me down by my shoulders.

 

The State counters that because this evidence was admissible pursuant to Texas Rule of Evidence 803(4), Ezell's counsel was not ineffective for failing to object. Rule 803(4) provides the following exception to the hearsay rule:

Statements made for purposes 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).

The nurse, Jennifer Dowdy, testified that she is a certified sexual assault examiner and that she conducted a sexual assault examination on A.P. According to Dowdy, a sexual assault exam entails taking a history for medical diagnosis and treatment. She also performs a complete physical exam followed by a genital exam. When asked why taking a history is important for a diagnosis, Dowdy responded, "It gives me an idea of where I might look for injuries or what the patient may need to be treated for." For instance, if there has been penetration of the mouth, the genital organ, or the rectum, the patient is treated with prophylactic antibiotics to prevent sexually transmitted disease from occurring. When Dowdy takes a history, she tries to get specific information from the patient because many times the patient does not want to say specifically what may have happened. She will ask where the patient was penetrated and whether it was with fingers, mouth or a foreign object. This information is necessary for evidence collection and medical history. For instance, if the patient was penetrated with a foreign object, she may need a Tetanus shot. Or, if the skin is broken by bites, the patient may need antibiotics. Dowdy's physical examination of A.P. revealed no trauma to A.P.'s body. At the completion of A.P.'s exam, however, Dowdy gave A.P. Zithromax and Levaquin to treat possible chlamydia and Flagyl to treat possible bacterial vaginitis. A.P. was also given a morning after pill to prevent pregnancy.

It is apparent that the statements A.P. made to Dowdy were made for the purpose of medical diagnosis or treatment. In giving a history to Dowdy, A.P. responded to Dowdy's questions regarding what happened and provided information from which Dowdy was able to ensure A.P. received proper medical care. Thus, A.P.'s statements fall within the Rule 803(4) exception to the hearsay rule. And, trial counsel was not ineffective for failing to object to these statements.

Ezell also points to Dowdy's testimony that "[A.P.] spoke easily with family and staff and made eye contact," which demonstrated that she was "open" and willing to talk and that "it gives you an idea if maybe they are truthful or not." While this testimony was objectionable, (3) we cannot say that, looking at the totality of the representation, trial counsel's failure to object to this one comment by Dowdy was so serious that it prejudiced Ezell's defense. See Thompson, 9 S.W.3d at 813 (explaining that, in evaluating the effectiveness of counsel, a court must look to the totality of the representation and the particular circumstances of each). We, therefore, hold that Ezell was not denied effective assistance of counsel.

Conclusion

Because both parties agree that Ezell's conviction for both sexual assault and indecency with a child violated his constitutional guarantee against double jeopardy, we set aside his conviction for the lesser offense, indecency with a child. Additionally, because the judgment of conviction for Count I incorrectly shows the offense to be sexual assault of a child, we reform the judgment to reflect that Ezell's conviction was for sexual assault. As reformed, we affirm the trial court's judgment.

Karen Angelini, Justice

Do not publish

1. The State agrees that Ezell's conviction for both sexual assault and indecency with a child violates his constitutional guarantee against double jeopardy. Therefore, we set aside the conviction for the lesser offense, indecency with a child. See Ochoa v. State, 982 S.W.2d 904, 908 (Tex. Crim. App. 1998). In addition to reforming the judgment to set aside the conviction for indecency with a child, we must also reform the judgment of conviction for Count I of the indictment, which incorrectly shows the offense to be sexual assault of a child. In fact, the conviction was for sexual assault.

2. As stated in footnote 1 of this opinion, we must reform the judgment to set aside the conviction for the lesser offense, indecency with a child; therefore, we need not consider whether trial counsel's failure to object on double jeopardy grounds amounted to ineffective assistance of counsel.

3. See Edwards v. State, 107 S.W.3d 107, 115 (Tex. App.--Texarkana 2003, pet. ref'd) (explaining that an expert witness may not testify that a witness is truthful).