Richard Bates v. The State of Texas--Appeal from 147th District Court of Travis County

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,
AT AUSTIN
NO. 3-91-192-CR
RICHARD O. BATES,

APPELLANT

 
vs.
THE STATE OF TEXAS,

APPELLEE

 
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 147TH JUDICIAL DISTRICT
NO. 911,575, HONORABLE WILFORD FLOWERS, JUDGE PRESIDING

PER CURIAM

Appellant, after a plea of not guilty, was found guilty by a jury of the offense of indecency with a child. Tex. Penal Code Ann. 21.11(a)(1) (1981). The trial court assessed punishment, enhanced by two previous felony convictions, (1) at seventy-five years' imprisonment. In one point of error, appellant asserts he was denied effective assistance of counsel in violation of the sixth amendment to the United States Constitution. We will affirm the judgment of conviction.

To prevail on his ineffective assistance claim, appellant must show: (1) that counsel's performance was deficient, in that counsel made such serious errors she was not functioning effectively as counsel; and (2) the deficient performance prejudiced the defense to such a degree that appellant was deprived of a fair trial. Strickland v. Washington, 466 U.S. 688 (1984); Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986). In deciding an ineffectiveness claim this court must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed at the time of counsel's conduct. Appellant must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance. Strickland, 466 U.S. at 690. "Prejudice" is demonstrated when the convicted defendant shows that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. at 694; Ex parte Guzmon, 730 S.W.2d 724, 733 (Tex. Crim. App. 1987). It is appellant's burden to prove an ineffective- assistance claim. Moore v. State, 694 S.W.2d 528, 531 (Tex. Crim. App. 1985).

Appellant asserts he was denied effective assistance of counsel because his trial counsel failed to advance the defense of promiscuity when she released two defense witnesses from their subpoenas.

The statute under which appellant was convicted provides a promiscuity defense. Tex. Penal Code Ann. 21.11(b) (1989). (2) Defense counsel first attempted to elicit testimony related to a promiscuity defense during an initial hearing on the State's motion in limine. In its motion, the State had included the following request:

 

NOW COMES the State of Texas by and through the undersigned Assistant District Attorney, and requests the Court to instruct counsel for the Defendant, the Defendant, and all witnesses called to testify by the Defendant not to refer to, mention, ask about, or allude to, either directly or indirectly, without first having taken up the matter with the Court out of the presence of the jury the following:

 

17. Any evidence of or reference by defense counsel (including voir dire examination and cross-examination), to previous sexual conduct of any State's witness including references/evidence pertaining to the pregnancy of the complaining witness, [name omitted], without first approaching the bench;

 

Defense counsel specifically objected to this request and the trial court held a hearing outside the presence of the jury to hear evidence related to item number 17.

First, the court heard the complainant testify, on direct examination by the State, that she had engaged in no prior sexual contact or conduct of any kind before the date of the alleged offense, July 17, 1989. She testified to having sexual intercourse after the date of the offense with one Dominique Romo, by whom she had a child.

On cross-examination of the complainant, defense counsel elicited the following testimony relative to the promiscuity defense:

 

Q: When did you begin dating boys?

 

A: When I was 16.

 

Q: Sixteen?

 

A: Yes.

 

Q: Did you ever know someone by the name of Alex Arellano?

 

A: Yes.

 

Q: And did you have occasion to date him or go places with him before the age of 16?

 

A: No.

 

Q: You never had any sexual contact with him?

 

A: No.

 

Q: Did you have occasion to know Charles Arellano?

 

A: Yes.

 

Q: And did you date him in any respect?

 

A: No.

 

Q: Never had any sexual contact with him?

 

A: No.

 

At the conclusion of complainant's testimony, defense counsel informed the court that she had no further witnesses at that time, but that two subpoenaed defense witnesses, Alex and Charles Arellano, were to be attached. The trial court issued a preliminary ruling disallowing the testimony regarding complainant's sexual behavior after the date of the alleged offense since the promiscuity defense is specifically limited to a complainant's sexual contacts or conduct before the date of the alleged offense.

After the State rested its case in chief and the defense concluded examining the complainant on recall, a second hearing to consider item number 17 of the State's motion in limine was held outside the presence of the jury. Defense counsel called Charles Arellano. On direct examination, Charles testified that when he lived on Prado Street two years earlier, and before the date of the alleged offense, he had known the complainant and her family. He further testified that he had never gone out with the complainant. However, his friends Andrew Castillo, Tony Romo, and Andrew's cousin, Bebe, had gone out with her. In response to defense counsel's questioning, Charles further testified that Castillo, Romo and Bebe had each told him they had been "to bed with" the complainant.

Defense counsel next called Alex Arellano, who had also lived on Prado Street until 1987 and had known the complainant at that time. Alex testified that on one occasion when he and the complainant were eleven or twelve years old, he had intercourse with the complainant. He also testified that Pete Rodriguez and Andrew Castillo told him "they had like relationship with her or they used to mess around with her and stuff like that."

The State objected to admission of the Arellanos' testimony in part, as follows:

 

It is our position that anything other than that one encounter [with Alex Arellano] would be inadmissible hearsay. No witnesses have any personal knowledge of anything else. We limit ourselves to that one individual incident, and our position on that is two things: First of all, a single act with one person in the past does not rise to promiscuity and there is [sic] cases on that.

 

The Court ruled, "I find that one act is all that I have heard any testimony or evidence on, and that is not promiscuous behavior, assuming it is true."

Defense counsel requested the opportunity to subpoena two of the witnesses named as having had relations with the complainant. After defense counsel advanced this request a second time, in a request for a continuance, the trial court granted defense counsel's request to allow the defense time to locate the two witnesses.

The next morning defense counsel informed the court:

 

Your Honor, we did locate the witnesses and I spoke with both of them, and they indicated they were aware of what the case was about and they had spoken with [the complainant] and they were unwilling to testify against her; therefore, I released them from their subpoena.

 

Appellant's ineffective assistance claim rests on counsel's decision to release the witnesses from their subpoenas. Counsel is strongly presumed to have rendered adequate assistance and to have made all significant decisions in the exercise of reasonable professional judgment. Strickland, 466 U.S. at 690. Looking at the totality of the circumstances at the time of counsel's conduct, we cannot say the decision to release the witnesses was not based on sound trial strategy. This is not a situation where trial counsel wholly failed to pursue a promiscuity defense, or pursued it half-heartedly.

The record reflects that appellant's trial counsel attempted to develop testimony sufficient to raise a promiscuity defense. The two incidents of sexual conduct adduced, however, were excluded, one because it occurred after the date of the alleged offense and therefore beyond the time frame for which the defense applies; the other because it was evidence of only one previous act, which the court ruled did not rise to the level of promiscuous conduct. Appellant's trial counsel also twice requested, and ultimately obtained from the trial court, time to locate two of the witnesses named by Arellanos as having engaged in sexual relations with the complainant before the date of the alleged offense. Appellant's trial counsel subsequently located and interviewed the two witnesses. After talking to them, she elected to release them from their subpoenas.

It would be unreasonable to presume that appellant's counsel learned of testimony supporting the defense and elected not to call the witnesses simply because "they were unwilling to testify," especially in light of the fact that she had the power to compel their testimony if she wished (they were under subpoena) and because she had previously attached two witnesses under subpoena when they failed to appear. Rather, it is reasonable to presume, instead, that counsel determined that the witnesses had no testimony to offer in support of the defensive theory or that their testimony would be harmful to the appellant.

Appellant has not met his burden of proof to show ineffective assistance. He has not demonstrated that counsel's decision to release the witnesses from their subpoena was error, much less that it prejudiced him. In light of all the circumstances related to defense counsel's conduct in developing and pursuing the promiscuity defense, we conclude that her acts do not fall outside the wide range of professionally competent assistance, but instead evidence a valid exercise of trial strategy. That another attorney might have taken different action at trial will not support a finding of ineffectiveness. Walston v. State, 697 S.W.2d 517, 519 (Tex. App. 1985, pet. ref'd). Counsel's performance was not deficient and appellant was not deprived of a fair trial.

We overrule appellant's point of error and affirm the judgment of conviction.

 

[Before Chief Justice Carroll, Justices Aboussie and Kidd]

Affirmed

Filed: January 22, 1992

[Do Not Publish]

1. Appellant's prior felony convictions are for attempted sexual abuse and arson.

2. Section 21.11(b) provides:

 

It is a defense to prosecution under this section that the child was at the time of the alleged offense 14 years or older and had, prior to the time of the alleged offense, engaged promiscuously in:

 

(1) sexual intercourse;

(2) deviate sexual intercourse;

(3) sexual contact; or

(4) indecent exposure as defined in Subsection (a)(2) of this section.

 

(emphasis added).