Edward Elliott Bryant v. The State of Texas--Appeal from 208th District Court of Harris County

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-05-00142-CR

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EDWARD ELLIOTT BRYANT, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 208th Judicial District Court

Harris County, Texas

Trial Court No. 973517

Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Justice Carter

MEMORANDUM OPINION

A jury found Edward Elliott Bryant guilty of aggravated sexual assault and assessed his sentence at forty years' imprisonment and a fine of $10,000.00. Bryant now appeals, asserting (1) that the evidence is factually insufficient to support his conviction, (2) that he received ineffective assistance of counsel at trial, (3) that he was denied constitutional due process because he was misled by the indictment, (4) that the State failed to disclose exculpatory evidence, and (5) that he has been subjected to cruel and unusual punishment under the Eighth Amendment to the United States Constitution. We affirm.

I. Factual Sufficiency

In his first point of error, Bryant contends the evidence is factually insufficient to support his conviction. There are two ways in which we may find the evidence to be factually insufficient. See Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004). First, if the evidence supporting the verdict, considered alone, is too weak to support the jury's finding of guilt beyond a reasonable doubt, then we must find the evidence insufficient. Id. Second, if when we weigh the evidence supporting and contravening the conviction we conclude that the contrary evidence is strong enough that the State could not have met its burden of proof, we must find the evidence insufficient. Id. at 484 85. If we conclude the evidence is factually insufficient, we must reverse the trial court's judgment and remand the case for a new trial. Id. at 482; Harvey v. State, 173 S.W.3d 841, 849 (Tex. App. Texarkana 2005, no pet.). The indictment alleged Bryant "intentionally and knowingly cause[d] the sexual organ of [S.B.], a person younger than fourteen years of age and not the spouse of the Defendant to CONTACT the SEXUAL ORGAN of THE DEFENDANT." The State's evidence during guilt/innocence consisted of the testimony from several witnesses who testified over a period of two days. We offer the following abbreviated review of the relevant evidence.

The victim's mother and the State's outcry witness // testified S.B., a child younger than fourteen years, lived with Bryant, her father, from December 2000 until June 2001. S.B.'s mother testified S.B. had told her that, while S.B. lived at Bryant's house, Bryant would pull off S.B.'s underwear and hurt her. S.B. had told her mother that Bryant put his penis inside of her. S.B. reportedly cried when Bryant did this, and she asked Bryant to stop, but, "He didn't stop, he didn't listen to me." After this outcry, S.B.'s mother took S.B. to the Children's Assessment Center in Houston, Texas, for examination. //

S.B. testified she was between the ages of seven and eight years of age when she lived with Bryant. S.B. told the jury there were times that, after she had gone to bed for the evening, Bryant would come into her bedroom and carry S.B. into his bedroom. Bryant would then lay S.B. in his bed and either get on top of her or be kneeling over her. Bryant would not be wearing any clothes at this time. Bryant would then take off S.B.'s underwear and begin touching her vagina. S.B. testified that, after he rubbed her vagina for awhile, Bryant would then put his erect penis inside her vagina, causing S.B. to experience pain. S.B. said she also twice experienced vaginal bleeding from the sexual assaults. S.B. estimated Bryant sexually assaulted her between ten and twenty times during the six to seven months she lived with Bryant. S.B. also told the jury that Bryant threatened to kill her if she ever told anyone about the assaults. On cross-examination by defense counsel, S.B. told the jury that these sexual assaults began about the third night of her stay with Bryant.

Dr. Rebecca Girardet, a pediatrician with the University of Texas School of Medicine in Houston who specializes in child sexual abuse, performed the medical examination of S.B. at the Children's Assessment Center. During the medical examination, S.B. reported having a white, yellowish vaginal discharge during the previous six months. // Girardet, however, said the cause of the discharge could be anything from a sexually transmitted disease to the overuse of bubble bath. // According to Girardet, S.B. reported coming to the Children's Assessment Center because her father had forced her to have sexual intercourse. Girardet asked S.B. if she meant that he had put his penis in her vagina, to which S.B. responded by nodding "yes." Girardet then asked S.B. if her father ever put his penis in her "bottom" or her mouth, and S.B. shook her head, indicating "no." S.B. also told Girardet that Bryant did not use a condom during the sexual assaults, and reported to Girardet that these sexual assaults occurred one or two times a week during the period in which S.B. had lived with Bryant. S.B. also told Girardet about having vaginal bleeding as a result of the sexual assaults. During the physical examination, Girardet noticed a portion of S.B.'s hymen was absent, a condition which is not normal and which Girardet concluded was a sign S.B. had experienced "penetrating trauma" of the vagina. Girardet also saw "healed trauma at the vaginal entrance of [S.B.'s] vagina." Based on this physical evidence, Girardet concluded the injury to S.B.'s hymen was consistent with her complaint about being sexually assaulted.

On cross-examination, however, Girardet admitted that she observed no bruising of S.B.'s vaginal area during the examination. Nevertheless, the absence of any bruising was unremarkable given the two-year delay between the time of the sexual assaults and the time of Girardet's examination of S.B.

Nickal Bryant, the appellant's eldest daughter, also lived in Bryant's house at the time of the assaults. Nickal testified she did all of S.B.'s laundry and had never noticed any blood on any of S.B.'s clothing. She also did not see anything unusual occurring between Bryant and S.B., such as S.B. being carried to Bryant's bedroom in the middle of the night.

Given this evidence, we cannot say the evidence supporting the jury's verdict, standing alone, is too weak to support a finding of guilt beyond a reasonable doubt. See Zuniga, 144 S.W.3d at 484. Nor can we say that there is any weighty evidence contravening the conviction such that we would be led to conclude the State could not have met its burden of proof. See id. at 484 85. Accordingly, we conclude the evidence is factually sufficient and overrule Bryant's first point of error.

II. Ineffective Assistance of Counsel

In his second point of error, Bryant contends he received ineffective assistance of counsel at trial. More specifically, Bryant complains his trial counsel failed to interview any of the State's witnesses before trial, failed to interview Bryant's eldest daughter before trial, failed to call any expert witnesses, failed to call other members of Bryant's immediate family to testify on his behalf, failed to request a pretrial hearing ten days before the commencement of trial, failed to review the State's evidence before trial, failed to issue subpoenas for any defense witnesses, and failed to discuss trial strategy with Bryant.

To prevail on a claim of ineffective assistance of counsel at trial, an appellant must prove by a preponderance of the evidence that trial counsel performed deficiently and that the appellant suffered prejudice as a direct result of any alleged deficient performance such that, but for the deficient performance, the result of the trial would have been different. Bulington v. State, 179 S.W.3d 223, 232 (Tex. App. Texarkana 2005, no pet.).

In this case, Bryant has made no effort to show to this Court that he suffered any prejudice as a direct result of any of the above-referenced alleged deficiencies. As such, this issue has, at best, been inadequately briefed. See Tex. R. App. P. 38.1(h). Moreover, we note that there was no hearing on Bryant's motion for new trial. As such, the record before us has been inadequately developed and Bryant's trial counsel has not yet had the opportunity to respond to Bryant's claims. Cf. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). For these reasons, we overrule Bryant's second point of error.

III. Due Process Claim

Bryant claims he was denied constitutional due process because the indictment failed to inform him of the charge. Bryant did not raise this issue before trial. A defendant's failure to object to any alleged defects in an indictment before the commencement of trial serves to waive such claims on appeal. Studer v. State, 799 S.W.2d 263, 273 (Tex. Crim. App. 1990); Burton v. State, 805 S.W.2d 564, 570 (Tex. App. Dallas 1991, pet. ref'd). Bryant's failure to raise this claim before trial waives the issue for our review. Additionally, we cannot say the indictment, as quoted previously in this opinion, failed to provide Bryant with constitutionally adequate notice of the charge against him. We, therefore, overrule this point of error.

IV. Exculpatory Evidence

In his reply to the State's brief, Bryant raises the new argument that the State failed to disclose exculpatory evidence to the defense. Specifically, Bryant alleges the State, "through its agent, the Smith [sic] County Sheriff's Office, failed to disclose to defense counsel statements and reports of Ralph East and Kelly Stroud." We have reviewed the record in this case and find no support for such a claim. Nor has Bryant directed our attention to any location in the record where there was evidence such allegedly exculpatory evidence was requested by Bryant, that it was possessed by the State, or that the State failed to disclose such. As such, this issue has been, at best, inadequately briefed and is overruled. See Tex. R. App. P. 38.1(h).

V. Cruel and Unusual Punishment

Finally, Bryant raises another new issue in his responsive brief to the State's brief: Bryant claims he has been subjected to cruel and unusual punishment in violation of the United States Constitution's Eighth Amendment because his trial counsel failed to request a continuance so that Bryant could have additional time to consider the State's plea offer. Bryant did not raise this issue in his opening brief. It is well settled that an appellant may not raise new issues in a reply brief. State v. Sanchez, 135 S.W.3d 698, 700 (Tex. App. Dallas 2003), aff'd, 138 S.W.3d 324 (Tex. Crim. App. 2004). We overrule Bryant's final issue.

VI. Conclusion

For the reasons stated, we affirm the trial court's judgment.

Jack Carter

Justice

Date Submitted: May 23, 2006

Date Decided: June 22, 2006

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