Rodney Elder v. The State of Texas--Appeal from 167th District Court of Travis County

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-96-00708-CR
Rodney Elder, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 167TH JUDICIAL DISTRICT
NO. 0940456, HONORABLE MICHAEL LYNCH, JUDGE PRESIDING
PER CURIAM

A jury found appellant guilty of aggravated sexual assault of a child. Tex. Penal Code Ann. 22.021 (West 1994 & Supp. 1998). The district court assessed punishment at imprisonment for thirty-five years.

Appellant's court-appointed attorney filed a brief concluding that the appeal is frivolous and without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738 (1967), by presenting a professional evaluation of the record demonstrating why there are no arguable grounds to be advanced. See also Penson v. Ohio, 488 U.S. 75 (1988); High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978); Currie v. State, 516 S.W.2d 684 (Tex. Crim. App. 1974); Jackson v. State, 485 S.W.2d 553 (Tex. Crim. App. 1972); Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969). A copy of counsel's brief was delivered to appellant, and appellant was advised of his right to examine the appellate record and to file a pro se brief. Appellant has filed a pro se brief containing seven points of error, one of which challenges the sufficiency of the evidence.

Defense counsel's brief accurately summarizes the evidence as follows:

 

The evidence showed that [the complainant], when she was five years old, had been sexually assaulted. [The complainant] testified at trial that her "Uncle Rod" had done it, although she was unable to identify the Appellant from the stand. [The complainant's] older brother and sister . . . testified that Appellant had slept with [the complainant] in the top bunk of their bunk beds on the night of the alleged offense. Both [siblings] said they felt the bed shake sometime during the night. When [the complainant] got up the next morning, she told her mother [sic] and sister what had happened, as well as their mother . . . . [The complainant's mother] brought her daughter to Seton Hospital for examination sometime that night.

 

Although [the mother] was the outcry witness, she did not testify at trial. [She] had apparently lost custody of her children for abusing and neglecting them sometime between the time of the alleged offense and the time the case finally went to trial. Although the children identified [the mother's] live-in boyfriend at the time of the offense as "Mike," the man who showed up at the hospital that night identifying himself as her boyfriend was a man named David Creighton. Testimony of various siblings of Appellant and [the mother] showed that [the mother] lived with her children in very close quarters, in a 32-foot travel trailer, and that [she] had overnight visits with a number of different men while the children were present.

 

Various physicians and mental health professionals testified that, in their opinion, [the complainant] had been sexually abused, and that [the complainant] had identified "Uncle Rod" as the perpetrator. Appellant took the stand and denied the offense. Appellant claimed that he and his sister [the complainant's mother] had a falling out over her desire to sell the trailer for a fraction of its worth and over her unseemly and irresponsible behavior with regard to the children.

 

Appellant urges that the State failed to prove his identity as the person who sexually assaulted the complainant. He points to the complainant's failure to positively identify him at trial and to the evidence that other men were known to frequent the child's residence. The jury was the exclusive judge of the credibility of the complainant and the other witnesses, and of the weight to give their testimony. Miller v. State, 909 S.W.2d 586, 593 (Tex. App.--Austin 1995, no pet.). The "reasonable alternative hypothesis" rule on which appellant relies has been overruled. Geesa v. State, 820 S.W.2d 154 (Tex. Crim. App. 1991). Viewed in the light most favorable to the verdict, the evidence is sufficient to sustain the conviction. See Jackson v. Virginia, 443 U.S. 307 (1979); Griffin v. State, 614 S.W.2d 155 (Tex. Crim. App. 1981) (standard of review). Point of error one is overruled.

In point of error two, appellant contends the prosecutors engaged in improper jury argument. We find none of the remarks cited by appellant to be objectionable and, in any event, any error was waived by the failure to object. Cockrell v. State, 933 S.W.2d 73 (Tex. Crim. App. 1996). Point of error two is overruled.

Next, appellant contends the district court erred by giving a supplemental charge to the jury. The instruction in question was an "Allen charge" given by the court after the jury indicated that it was deadlocked. Appellant did not object to this supplemental charge, which was identical to the instruction recently discussed and approved by this Court. See Loving v. State, 947 S.W.2d 615, 619-20 (Tex. App.--Austin 1997, no pet.); 8 Michael J. McCormick, Thomas D. Blackwell and Betty Blackwell, Criminal Forms and Trial Manual 96.31 (Texas Practice 10th ed. 1995). No error is presented. Point of error three is overruled.

Appellant's fourth point of error is that he received ineffective assistance of counsel at trial. Appellant contends that trial counsel: should have moved for a dismissal of charges when the complainant failed to identify him at trial, should have objected to the improper prosecutorial argument, should have objected to the supplemental charge, should have made the State call all available witnesses, should have raised the above matters in a motion for new trial, and should have requested a circumstantial evidence charge. Several of these alleged errors by counsel were not, in fact, errors at all. The others raise questions of trial strategy that cannot be reviewed on the present record. Appellant has not overcome the presumption that counsel provided reasonable professional assistance. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). Point of error four is overruled.

Appellant also complains that his attorney on appeal was ineffective because he filed a frivolous appeal brief. In a related point, appellant complains that his limited legal knowledge and limited access to research material left him unable to adequately act on his own behalf after the frivolous appeal brief was filed. We have already stated that appellate counsel fulfilled his constitutional and professional responsibilities to appellant. Appellant was afforded all the rights to which he is entitled under Anders and subsequent opinions. Points of error five and seven are overruled.

Finally, appellant asserts that the reporter's record contains various errors and omissions. We cannot determine the truth of these assertions. None of the alleged errors and omissions in the record is relevant to any other point of error brought forward by appellant. Point of error six is overruled.

 

The judgment of conviction is affirmed.

 

Before Justices Powers, Aboussie and B. A. Smith

Affirmed

Filed: January 8, 1998

Do Not Publish

r her unseemly and irresponsible behavior with regard to the children.

Appellant urges that the State failed to prove his identity as the person who sexually assaulted the complainant. He points to the complainant's failure to positively identify him at trial and to the evidence that other men were known to frequent the child's res