Terry Lee McCormick v. The State of Texas--Appeal from 54th District Court of McLennan County

IN THE

TENTH COURT OF APPEALS

 

No. 10-05-00325-CR

Terry Lee McCormick,

Appellant

v.

The State of Texas,

Appellee

 

 

From the 54th District Court

McLennan County, Texas

Trial Court No. 2005-390-C

MEMORANDUM Opinion

Appellant Terry Lee McCormick appeals his conviction for indecency with a child. He brings five issues on appeal. We will affirm.

Background

McCormick s alleged victim was his stepdaughter, E.R. Early in his relationship with E.R. s mother, Roberta, McCormick was a great father figure and seemed to like Roberta s three children. E.R. testified that her relationship changed with McCormick when the family moved from an apartment to a house when she was fifteen or sixteen years old. She recalled one night in which she saw McCormick naked in the doorway between the kitchen and her bedroom. He saw her, covered himself and left the room. After that incident, he frequently entered her room at night. On several occasions he stood next to her bed and breath[ed] heavily. It sounded to E.R. as if he were masturbating.

On other occasions, McCormick grabbed E.R. by the hips, forced her to sit on his lap, and rubbed her breasts. Initially, McCormick touched her on the outside of her clothing, but his advances soon escalated to reaching up her shirt, touching her breasts, and kissing her on the lips.

E.R. also testified that when she was sixteen going on seventeen McCormick got in the shower with her one morning. He asked her to wash his back but did not touch her in the shower. After this incident, E.R. testified that, after this incident, she was depressed and threatened to kill herself. Her mother admitted her to an inpatient treatment center for one or two weeks. After she returned home, McCormick acted as if nothing had ever happened and he was nice again.

The family moved to Illinois where E.R. attended her senior year of high school. Roberta often left her children in McCormick s care as she tended to her sick mother in Massachusetts. McCormick again began making sexual advances towards E.R. One evening, after she returned home from working a double shift as a waitress, McCormick massaged her shoulders and had her lift her shirt so that he could massage her back. He then pulled down her pants and massaged way down [her] legs, told her to flip over, and massaged her front. E.R. attempted to leave but McCormick said, no, now it s my turn; you have to massage me. While McCormick was naked, E.R. massaged him both front and back, head to toe.

E.R. also testified that, while in Illinois, McCormick once had her put a condom on him so that she could learn how to do that to a guy. She was scared because she didn t know what was going to happen after that, and she ran to her room. A few minutes later she saw him in the kitchen masturbating. While her mother was away, McCormick often woke E.R. during the night, stated he was lonely, made her lie in his bed, and wrapped his arms around her. On several occasions, he was naked when she was in bed with him. E.R. stated that he also put his hands down her pants, which her brother witnessed once.

E.R. described several arguments and physical confrontations with her stepfather. He pinned her to the bed, yelled, punched her, called her names, and threatened her with a gun. However, after the family returned to Texas when E.R. was eighteen she had no other physical or sexual encounters with McCormick.

The State introduced letters from E.R. to her mother in which she made substantially the same allegations as to which she testified. The State also introduced testimony of a neighbor who testified that she saw McCormick set E.R. on his lap when E.R. was fifteen; put his hands between her legs, and that E.R. appeared frightened and confused.

In a phone interview with Detective Scott Holt of the Waco Police Department, McCormick denied being naked in front of E.R. or masturbating in front of her when she was a child. He stated that he could not remember putting his hand down her pants and that E.R. initiated sitting in his lap. He stated that he did not massage her as she claimed but that he might have rubbed her neck. He admitted to taking a shower with E.R. when she was eighteen.

Roberta testified on behalf of McCormick. She stated that E.R. made the allegations against her husband in retaliation for her reporting E.R. to Child Protective Services concerning the care of her child. She further testified that McCormick and E.R., at one time, had a good relationship; E.R. told her that she had only dreamed that McCormick exposed himself to her; E.R. passed up several opportunities to report McCormick in safety; E.R. often sat on McCormick s lap and was angered when told not to sit on his lap; and E.R. could not have seen McCormick in the kitchen doorway as she testified. McCormick also called a family friend who corroborated Roberta s testimony that E.R. initiated sitting on his lap.

Jury Charge Error

McCormick s first four issues complain of jury charge error. Our first duty in analyzing a jury-charge issue is to decide whether error exists. Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). If error exists, we then analyze that error for harm. Id. When, as here, an appellant fails to object to the charge at trial, he must show egregious harm to prevail on appeal. See id. at 743-44 ; see also Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) .

The record must show that a defendant has suffered actual, rather than merely theoretical, harm. Ngo, 175 S.W.3d at 750. Errors that result in egregious harm are those that affect the very basis of the case, deprive the defendant of a valuable right, or vitally affect a defensive theory. Id. (quoting Hutch v. State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996)). [T]o determine whether the error was so egregious that a defendant was denied a fair and impartial trial, a reviewing court should examine: 1) the entire jury charge; 2) the state of the evidence; 3) the arguments of counsel; and 4) any other relevant information in the record. Ngo, 175 S.. WW.3d at 750 n.48 ; Almanza, 686 S.W.2d at 171.

Extraneous Offenses

In McCormick s first issue, he contends that the trial court erred in failing to sua sponte include a reasonable-doubt instruction in the jury charge regarding extraneous offenses. This Court has held that a trial court has a duty to submit such an instruction in the guilt-innocence charge when extraneous-offense evidence is admitted. Rodgers v. State, 180 S.W.3d 716, 723-24 (Tex. App. Waco 2005, no pet.). The trial court must so instruct regardless of whether the defendant requests the instruction or objects to its omission. Id. at 720.

Testimony that the appellant committed an offense against the complainant in the manner alleged in the indictment on more than one occasion does not constitute evidence of extraneous offenses. Id. at 724 n.7; Shea v. State, 167 S.W.3d 98, 104 (Tex. App. Waco 2005, pet. ref d). For purposes of determining the need for a reasonable-doubt instruction on extraneous-offense evidence, we consider evidence only of acts against the complainant in a manner other than alleged in the indictment. Rodgers, 180 S.W.3d at 724.[1]

Count I of the indictment alleged that McCormick touched the breast of E.R., and Count II alleged that he exposed his genitals to her. McCormick argues that evidence was adduced at trial of approximately nineteen extraneous offenses, and that the State made seven comments about these extraneous acts during closing argument. Among the most prejudicial evidence to which McCormick points is evidence that he put his hands inside E.R. s pants and touched her vagina; caused E.R. to put a condom on him; caused E.R. to massage him front and back, head to toe while he was naked; caused E.R. to lie in bed with him while naked; caused E.R. to sit on his lap; got in the shower with E.R.; and threatened E.R. with a gun, punched her, pinned her to the bed, and whipped her with a belt. We agree, and the State concedes in its brief, that [c]ertainly some of the listed testimony would qualify as extraneous conduct. Because extraneous-offense evidence was admitted at trial, the trial court erred by not including the reasonable-doubt instruction in the charge. See Rodgers, 180 S.W.3d at 724.

In evaluating the harm from the erroneous omission, we consider whether the defendant was harmed by the improper omission of the instruction, not by the admission of evidence of extraneous offenses. Id. at 724; see Ellison v. State, 86 S.W.3d 226, 228 (Tex. Crim. App. 2002). Among the factors to be considered in evaluating whether the failure to submit the instruction caused egregious harm to McCormick are: (1) was there mention of any burden of proof other than beyond a reasonable doubt, and (2) was the evidence insufficient to prove beyond a reasonable doubt that he committed the extraneous offense. See McClenton v. State, 167 S.W.3d 86, 98 (Tex. App. Waco 2005, no pet.).

McCormick concludes, without analysis, that he suffered egregious harm. The State notes that the jury acquitted McCormick of Count Two and argues that: [i]f the jury had improperly considered extraneous evidence and wanted to convict [McCormick] for being a bad person, it certainly could have convicted him on both counts.

We agree with the State that McCormick was not harmed by the omitted instruction. There was no mention of any burden of proof other than beyond a reasonable doubt. Further, McCormick admitted that he showered with E.R. once when she was eighteen and that he couldn t say one way or the other whether he put his hand down her pants. The evidence, including these admissions and E.R. s testimony, was such that a reasonable finder of fact could have believed beyond a reasonable doubt that McCormick committed the extraneous offenses. We find that McCormick did not suffer egregious harm from the omission of the reasonable-doubt instruction. We overrule his first issue.

Unanimity

In his second issue, McCormick contends that the trial court erred in submitting a charge which allowed the jury to convict him of Indecency with a Child without requiring the jury to be unanimous as to a specific instance of indecency. A jury verdict in a criminal case must be unanimous. Tex. Const. art. V, 13; Ngo v. State, 175 S.W.3d at 745. A unanimous jury verdict ensures that the jury agrees on the factual elements underlying an offense, requiring more than mere agreement on a violation of a statute. Francis v. State, 36 S.W.3d 121, 125 (Tex. Crim. App. 2000).

Relying on Ngo and Francis, McCormick seems to argue that he was deprived of a unanimous verdict because the jury was charged in the disjunctive. See Ngo, 175 S.W.3d at 744; see also Francis, 36 S.W.3d at 125. In Ngo, the charge allowed the jury to convict the defendant on one count of credit card abuse if it found that he committed any one of three charged criminal acts, which occurred at three different times, and in three different ways. Ngo, 175 S.W.3d at 744. In Francis, the jury was permitted to find the defendant guilty of indecency with a child if it found that the defendant had engaged in sexual contact by touching the breast orgenitals of [the] victim. Francis, 36 S.W.3d at 122. In both cases, the Court of Criminal Appeals concluded that the trial court erred in submitting a disjunctive charge to the jury that allowed the jury to reach a non-unanimous verdict.

In the present case, the jury charge on the first count reads as follows:

Now if you find from the evidence beyond a reasonable doubt that on or about the 1st day of December, 1998 the defendant, Terry Lee McCormick, did then and there intentionally or knowingly engage in sexual contact with [E.R.] by touching the breast of [E.R.] then you will find the defendant guilty of the offense of Indecency with a Child, as alleged in Count 1 of the indictment.

The jury charge on the second count was printed on a separate page and read as follows:

Now if you find from the evidence beyond a reasonable doubt that on or about the 1st day of August, 1998 the defendant, Terry Lee McCormick, did then and there intentionally or knowingly expose the Defendant s genitals, knowing that [E.R.] was present, then you will find the defendant guilty of the offense of Indecency with a Child, as alleged in Count 2 of the indictment.

Unlike Ngo and Francis, the jury in this case was not charged in the disjunctive. The jury charge contained two separate counts, each relating to a separate and distinct offense.

On appeal, McCormick proposes the following instruction:

You have been instructed that your verdict, whether it is guilty or not guilty, must be unanimous. The following instruction applies to the unanimity requirement as to Count I.

Count I of the indictment accuses the defendant of committing the crime of Indecency with a Child by touching the breast of ER. In order to return a guilty verdict, all twelve of you must agree as to the specific act, if any, that constitutes the conduct alleged in Count I.

(citing Fifth Circuit District Judges Association Pattern Jury Instructions (Criminal Cases) 1.25 (2001)). Because the jury was not charged in the disjunctive and the charge contained separate verdict forms for each count, we find that a separate unanimity instruction on each count was not required. See Bottenfield v. State, 77 S.W.3d 349, 359 (Tex. App. Fort Worth 2002, pet. ref d). We overrule McCormick s second issue.

Comment on Weight of the Evidence

McCormick complains, in his third issue, that the trial court improperly commented on the weight of the evidence in its charge to the jury. Specifically, he complains that by instructing the jury to find him guilty if he engage[d] in sexual contact with [E.R.] by touching the breast of [E.R.], a child younger than seventeen years of age and not the spouse of McCormick, the trial court relieved the State of carrying its burden to prove that the victim was seventeen years of age and not McCormick s spouse. He argues that the trial court should have instructed the jury as follows: engage[d] in sexual contact with [E.R.] by touching the breast of [E.R.], and that [E.R.] was then under the age of seventeen years and not the spouse of McCormick.[2] He did not object at trial.

In preparing and submitting a jury charge, a trial court is prohibited from expressing any opinion as to the weight of the evidence, from summing up the testimony, from discussing the facts, or from using any argument in the charge calculated to arouse the sympathy or to excite the passions of the jury. Tex. Code Crim. Proc. Ann. art. 36.14 (Vernon 2007). A charge that constitutes a comment by the court on the elements of the offense charged, or assumes the truth of a controverted issue, is a comment on the weight of the evidence and is erroneous. Whaley v. State, 717 S.W.2d 26, 32 (Tex. Crim. App. 1986); see Grady v. State, 634 S.W.2d 316, 317 (Tex. Crim. App. 1982).

The elements of the offense of Indecency with a Child at the time of trial were: (1) touching of the anus, breast, or any part of the genitals; (2) of a child younger than 17 years; (3) and not the spouse of the defendant; (4) with the intent to arouse or gratify the sexual desire of any person. See Act of May 29, 1993, 73rd Leg., R.S., ch. 900, 1.01, sec. 21.11(a), 1993 Tex. Gen. Laws 3586, 3616 (amended 2001) (current version at Tex. Pen.Code Ann. 21.11(a) (Vernon 2003)). Because the charge assumed E.R. was over the age of seventeen, which fact the defense challenged, and not McCormick s spouse, we find that the trial court erred by improperly commenting on the weight of the evidence in the jury charge.

Again, in determining if McCormick suffered egregious harm, we must examine the entire jury charge, the state of the evidence, the arguments of counsel, and any other relevant information in the record. Ngo, 175 S. W.3dS.W.3d at 750 n.48 ;; Almanza, 686 S.W.2d at 171. The trial court set out the elements of Indecency with a Child in the abstract portion of the charge as follows:

Our law provides that a person commits an offense if, with a child younger than seventeen (17) years of age and not his spouse, whether the child is of the same or opposite sex, he engages in sexual contact with the child; or with intent to arouse or gratify the sexual desire of any person, exposes any apart of the person s genitals, knowing the child is present.

The State also discussed all the elements with the jury during closing arguments. After reviewing the evidence that established that McCormick committed Count I on December 1, 1998 and Count II on August 1, 1998 and that he intentionally or knowingly engaged in sexual conduct, the State discussed whether the victim was under the age of seventeen and married to the defendant. The State argued:

Obviously, [E.R.] wasn t the spouse. [He was m]arried to Roberta McCormick. And [we] know from the chart that she was between the ages, 15 and 16. [Defense Counsel] has done a good job about talking about Joliet, and 18, and things of that nature. Well, we re here today to decide what happened between these dates on Colcord. You heard from [E.R.]. She said it initiated when she was 15 .

And I think you can see, ladies and gentlemen, from Count I, we met all of those elements beyond a reasonable doubt.

The record shows that the State told the jury that it had to find, beyond a reasonable doubt, that McCormick committed each element of the offense. Thus, we cannot say that McCormick was egregiously harmed by the trial court s error. Accordingly, we overrule his third issue.

Ex Post Facto Application

In his fourth issue, McCormick complains that the trial court erred by including the following instruction, which he argues incorporates law not in effect at the time of the alleged offense:

By the term sexual contact, as used herein, is meant any touching by a person, including touching through clothing, of the anus, breast, or any part of the genitals of a child, with intent to arouse or gratify the sexual desire of any person; or, any touching of any part of the body of a child including touching through clothing, with the anus, breast, or any part of the genitals of a person with the intent to arouse or gratify the sexual desire of any person.

Specifically, he complains of the language: touching through clothing.

Under the current statute, sexual contact, for purposes of Section 21.11:

Means the following acts, if committed with the intent to arouse or gratify the sexual desire of any person:

(1) any touching by a person, including touching through clothing, of the anus, breast, or any part of the genitals of a child; or

(2) any touching of any part of the body of a child, including touching through clothing, with the anus, breast, or any part of the genitals of a person.

Tex. Pen. Code Ann. 21.11(c) (Vernon 2003). The definition was amended effective September 1, 2001, for offenses committed on or after that date. See Act of May 23, 2001, 77th Leg., R.S., ch. 739. 2, sec. (c), 2001 Tex. Gen. Laws 1463 (current version at Tex. Pen. Code Ann. 21.11(c)); 3-4, 2001 Tex. Gen. Laws at 1463-64. At the time of the offense, the statutory definition of sexual contact for purposes of Penal Code Chapter 21 was: touching of the anus, breast, or any part of the genitals of another person with intent to arouse or gratify the sexual desire of any person. Act of May 29, 1993, 73rd Leg., R.S., ch. 900, art. 1, 1.01, sec. 21.01(2), 1993 Tex. Gen. Laws at 3616, amended by Act of May 23, 2001, 77th Leg., R.S., ch. 739, 1, 2001 Tex. Gen. Laws 1463, 1463.

In Resnick, the Court of Criminal Appeals held that sexual contact, as defined at the time of McCormick s offense, does not require flesh-to-flesh contact. Resnick v. State, 574 S.W.2d 558, 560 (Tex. Crim. App. 1978). The Court stated:

Th[e] definition makes it quite plain that the essence of the act of touching is to perceive by the sense of feeling. It is a matter of the commonest knowledge that the interposition of a layer of fabric between a person's hand and an object upon which the hand is placed will not prevent that person from feeling the object thus concealed. Were we to accept appellant's contention that he did not touch the [victim s] genitals because no flesh-to-flesh contact was made, absurd results would follow. Under such an analysis, a defendant who thrust his hand beneath a victim's undergarments and fondled his or her genitals in a public place could not be prosecuted for public lewdness if he were wearing a glove.

Id. Courts have reached the same result in Indecency-with-a-Child prosecutions. See Deason v. State, 786 S.W.2d 711, 716 (Tex. Crim. App. 1990); In re J.S., 35 S.W.3d 287, 292 (Tex. App. Fort Worth 2001, no pet.); Cruz v. State, 742 S.W.2d 545, 548 (Tex. App. Austin 1988, no pet.); Guia v. State, 723 S.W.2d 763, 766 (Tex. App. Dallas 1986, pet. ref d).

Because case law at the time of the offense provided that the definition of sexual contact included touching through clothing, we find that the trial court instructed the jury on law in effect at the time. Accordingly, we find no error and overrule McCormick s fourth issue.

Ineffective Assistance of Counsel

In his fifth and final issue, McCormick argues that his trial counsel failed to render effective assistance of counsel. He asserts that his trial counsel was ineffective in five different respects: (1) failing to request a limiting instruction regarding extraneous offenses in the jury charge, (2) failing to object to the application paragraph in the jury charge that assumed two elements the State was required to prove, (3) failing to object to the instruction which defined sexual contact, (4) failing to require the State to elect the act upon which it would rely for conviction on Count I, and (5) failing to request a unanimity instruction in the charge.

The standard in Strickland v. Washington applies to a claim of ineffective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). To prevail, a defendant must first show that his counsel s performance was deficient. Id. at 687, 104 S. Ct. at 2064; see Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002). Then he must show that this deficient performance prejudiced the defense. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064.

Appellate review of defense counsel s representation is highly deferential and presumes that counsel s actions fell within the wide range of reasonable and professional assistance. Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001); Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000). Under normal circumstances, the record on direct appeal will not be sufficient to show that counsel s representation was so deficient and so lacking in tactical or strategic decision-making as to overcome the presumption that counsel s conduct was reasonable and professional. See Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005); Mitchell, 68 S.W.3d at 642. Rarely will the trial record contain sufficient information to permit a reviewing court to fairly evaluate the merits of such a serious allegation: [i]n the majority of cases, the record on direct appeal is simply undeveloped and cannot adequately reflect the failings of trial counsel. Thompson v. State, 9 S.W.3d 808, 813-14 (Tex. Crim. App. 1999); see also Mitchell, 68 S.W.3d at 642 ( The reasonableness of counsel s choices often involves facts that do not appear in the appellate record. A petition for writ of habeas corpus usually is the appropriate vehicle to investigate ineffective-assistance claims. ).

In the absence of evidence of trial counsel s reasons for the challenged conduct, we assume a strategic reason for trial counsel s conduct, if one can be imagined. Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001) ( an appellate court commonly will assume a strategic motivation if any can possibly be imagined, and will not conclude the challenged conduct constituted deficient performance unless the conduct was so outrageous that no competent attorney would have engaged in it ) (quoting 3 W. Lafave, et al., Criminal Procedure 11.10(c) (2d ed. 1999) and citing Thompson, 9 S.W.3d at 814). But, if nothing in the record reveals trial counsel s reasons, it is improper for us to speculate on it. See Thompson, 9 S.W.3d at 814.

The record is silent about trial counsel s trial strategy as it relates to counsel s failure to request a limiting instruction, object to the application paragraph, object to the definition of sexual contact in the charge, request an election, and request a unanimity instruction. Because the appellate record in this case does not indicate the reasons for this conduct, and because all of the alleged deficiencies could have been the subject of trial strategy, we overrule McCormick s fifth issue.

Conclusion

  Having overruled McCormick s five issues, we affirm the judgment of the trial court.

BILL VANCE

Justice

Before Justice Vance,

Judge Stephen Ellis,[3] and

Judge Ralph H. Walton, Jr.[4]

Affirmed

Opinion delivered and filed July 18, 2007

Do not publish

[CR25]

 

[1] When the State elects the acts on which it will rely for conviction, a defendant is entitled to an instruction charging the jury to consider only the elected acts in deciding guilt and limiting the jury s consideration of the other unelected acts to the purposes for which they were admitted. Rivera v. State, No. 10-06-00059-CR, 2007 WL _____1965425 (Tex. App. Waco July 5__, 2007, no pet. h.). However, in the present case, McCormick did not request the State to make an election and no such instruction was required.

[2] McCormick cites Paul J. McClung, Jury Charges for the Texas Criminal, pgs. 98-99 (1995). However, Texas Criminal Jury Charges provides the following form for sexual-contact jury charges: A person commits an offense if, with a child younger than seventeen (17) years of age and not his spouse, he engages in sexual contact with the child. See Elizabeth Berry et al., TexasCriminal Jury Charges, 5:880 (2006).

[3] Judge of the 35th District Court of Brown and Mills Counties, sitting by assignment of the Chief Justice of the Texas Supreme Court pursuant to section 74.003(h) of the Government Code. See Tex. Gov't Code Ann. 74.003(h) (Vernon 2005).

[4] Judge of the 355th District Court of Hood County, sitting by assignment of the Chief Justice of the Texas Supreme Court pursuant to section 74.003(h) of the Government Code. See Tex. Gov't Code Ann. 74.003(h) (Vernon 2005).