Davis, Don Richard v. The State of Texas--Appeal from 272nd District Court of Brazos County

In The

Court of Appeals

For The

First District of Texas

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NO. 01-01-00624-CR

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DON RICHARD DAVIS, Appellant

 

V.

 

THE STATE OF TEXAS, Appellee

 

On Appeal from the 272nd District Court

Brazos County, Texas

Trial Court Cause No. 24,315-272

 

O P I N I O N

 

Appellant, Don Richard Davis, pled guilty before the jury to two counts of aggravated sexual assault. The jury assessed punishment at 99 years in prison and a fine of $10,000 on each count. We address (1) whether the statutory instruction regarding parole and good-conduct time was unconstitutional as applied to appellant, (2) whether trial counsel was ineffective for failing to object to two arguments by the prosecutor and for failing to request a limiting instruction concerning the otherwise inadmissible, underlying facts of an expert's opinion, and (3) whether the trial court abused its discretion by allowing the prosecutor to question the defense psychologist concerning sexually explicit letters written by appellant. We affirm.

Facts

On January 30, 1995, appellant sexually assaulted the complainant, a Texas A&M co-ed, anally and orally at knife point, after having confronted the complainant on campus. On May 4, 1995, appellant sexually assaulted another Texas A&M co-ed in the same manner.

The Parole and Good-Conduct-Time Instruction

In his first issue presented for review, appellant contends article 37.07, section (4)(a) of the Texas Code of Criminal Procedure is unconstitutional, as applied to him,under the Due Process clause of the Fourteenth Amendment to the United States Constitution. See U.S. Const. amend. XIV; Tex. Code Crim. Proc. Ann. art. 37.07, 4(a) (Vernon Supp. 2002). Appellant objected at trial that the instruction did not apply to him because he was not entitled to consideration for good-conduct time for the offenses to which he had pled guilty.

Appellant acknowledges that this issue has been decided adversely to him in Luquis v. State, 72 S.W.3d 355, 365-66, 368 (Tex. Crim. App. 2002) (holding instruction not unconstitutional, for violating due process or due course of law, as applied to defendant who is ineligible for good-conduct-time credit). However, appellant claims he fits within an exception noted in Luquis, which exception applies when the record shows the jury was actually confused by the instruction. See id.at 366-67. Appellant relies on a note from the jury asking the difference between sentences of 99 years and life. See id. at 367 (suggesting note from jury might show jurors' confusion). The note in this case indicates the jury's confusion regarding the two sentences. The note does not show any confusion regarding appellant's eligibility for good-conduct-time credit. Accordingly, we hold that the general rule of Luquis, that the parole and good-conduct-time instruction is not unconstitutional as applied, controls the disposition of this issue. See id. at 368.

We overrule appellant's first issue presented for review.

Ineffective Assistance of Trial Counsel

In his second, third, and fifth issues presented for review, appellant contends his trial counsel was ineffective for failing to object to two portions of the prosecutor's closing argument and for failing to request a limiting instruction concerning the underlying facts of an expert's opinion.

Standard of Review

To establish ineffective assistance of counsel, appellant must show (1) counsel's representation fell below an objective standard of reasonableness and (2) but for counsel's errors, the result of the proceedings would have been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). Appellant must overcome the presumption that the challenged action might be considered sound trial strategy. Id., 466 U.S. at 689, 104 S. Ct. at 2065; Thompson v. State, 9 S.W.3d 808, 813-14 (Tex. Crim. App. 1999); Gamble v. State, 916 S.W.2d 92, 93 (Tex. App.--Houston [1st Dist.] 1996, no pet.). Rather than examining counsel's isolated acts or omissions, we evaluate the totality of the representationfrom counsel's perspective at trial and not in hindsight. Ex parte Welborn, 785 S.W.2d 391, 393 (Tex. Crim. App. 1990); Wilkerson v. State, 726 S.W.2d 542, 548 (Tex. Crim. App. 1986).

"Appellant has learned how to be a better rapist."

In his second issue presented for review, appellant claims that, when the prosecutor argued that appellant had learned how to be a better rapist, the prosecutor invited the jury to speculate on matters outside the record. Appellant points out that he had developed testimony from an Ohio special agent with the Federal Bureau of Investigation that the agent knew of no sexual assault cases in the Cleveland area in which appellant was a suspect.

In closing argument, counsel for appellant argued that, had appellant been a suspect in any sexual-assault cases in Detroit or Cleveland, the jury would have heard about it. The prosecutor then argued as follows:

 

As a matter of fact, we found out, of course, that the second rape was being planned two weeks in advance. Remember that the second rape was much more brutal than the first. Much more well planned because it was in a much more secluded area than the first rape.

 

What does that tell you, ladies and gentlemen, about his ability to become a better rapist? Don't you think he has learned how to become a better rapist in six years? Think about that.

 

[Defense counsel] comes to you and says, "Well, we don't know of any other evidence up in Cleveland, don't you think we would have heard of that?" No, we won't. He knows to wipe DNA off. He's probably not ejaculating in people's faces any more, right? He's [sic] knows to cover their face now. He is not going to make the same mistakes twice because he is a serial rapist.

 

(Emphasis added.) Trial counsel objected as follows, but solely to the character of appellant as a serial rapist:

 

Trial Counsel: Excuse me, Judge, I'm going to object to the State calling him serial rapist when they've only got two cases of sexual assault. That doesn't make a serial rapist.

The Court: State's response?

 

Prosecutor: Your Honor, serial rapist is more than one.

 

The Court: Objection overruled.

 

Appellant called trial counsel to testify at the hearing on appellant's motion for new trial, which asserted trial counsel was ineffective. When asked to explain his failure to object to the argument referring to appellant's having "learned how to be a better rapist," trial counsel answered that he had had only two seconds to decide whether to object, that the whole trial was a punishment hearing asking the jury for a favor, that jurors do not like lawyers who object all the time, and that the prosecutor had not objected to trial counsel's argument. Trial counsel conceded that the prosecutor's argument was somewhat invited by trial counsel's own argument that there was no evidence appellant had committed violent offenses in the last five or six years. However, trial counsel testified that, in hindsight, he thought he should have objected.

Appellant argues that the prosecutor's argument was outside the four permissible areas of jury argument: (1) summation of the evidence; (2) reasonable deductions from the evidence; (3) answer to argument of opposing counsel; and (4) a plea for law enforcement. See Wilson v. State, 938 S.W.2d 57, 59 (Tex. Crim. App. 1996). Appellant also points out that the prosecutor had acknowledged during a pre-trial conference in chambers that he was unaware of any other sexual assaults allegedly committed by appellant. Appellant argues that trial counsel's explanation that he did not object so as not to alienate the jury does not ring true because trial counsel did object to the serial-rapist remark immediately after not objecting to remarks that appellant had learned how to be a better rapist. Appellant claims harm from the maximum sentences assessed in cases in which appellant was eligible for probation and thus should have received sentences somewhere in the low-to-middle range.

The State contends that the prosecutor was responding to trial counsel's argument that the jury would have heard about any further offenses had there been any and was making reasonable deductions from the evidence that appellant had learned from one offense to the next. Thus, the State contends, trial counsel was not ineffective for not objecting because the argument was proper. In the alternative, the State argues that appellant has not shown he was harmed by trial counsel's failure to object.

Under the circumstances presented here, trial counsel's explanation for not objecting is plausible, and the trial court could have accepted this explanation at the hearing on appellant's motion for new trial. Appellant has not met his burden of establishing deficient performance.

Accordingly, we overrule appellant's second issue presented for review.

Accusing Trial Counsel of Concealing the Truth

In his third issue presented for review, appellant contends his trial counsel was ineffective for not objecting when the prosecutor struck at appellant over the shoulders of his counsel by accusing trial counsel of concealing the truth. Appellant places the argument in context by pointing out the lengthy negotiations that had taken place concerning a pornographic magazine and eight pornographic letters that appellant had written, but had not sent. These items were recovered during a search of appellant's room. (1) As a result of these negotiations, the parties agreed that the magazine would be admitted, but that the State would not use the letters to impeach appellant. During the testimony of appellant's psychologist, however, the prosecutor was allowed to use excerpts from the letters to impeach the psychologist.

In his closing argument, the prosecutor argued as follows:

Dr. Hughes got on the stand and she tried to kind of play around and say, "He's a nice guy. I can do a treatment plan for him, minimize his risk of reoffending." Then, ladies and gentlemen, we got ahold of the records. We got ahold of her notes. And they weren't planning on that. They weren't planning on us finding out that he told the psychologist that no, he wasn't having fragmented thinking. He wasn't in this haze of methamphetamines when he brutally raped Jane Doe 1 and Jane Doe 2. He gave her a play-by-play, minute-by-minute, second-by-second [account] of both rapes.

 

(Emphasis added.)

When trial counsel was asked if he had any trial strategy for not objecting to the above-emphasized argument, he said he did not consider it necessary to object.

Appellant claims the prosecutor argued outside the record by allegedly referring to the lengthy and contentious dispute between the attorneys over admissibility of the notes. Appellant mainly complains that the argument struck at appellant over the shoulders of trial counsel by accusing trial counsel of concealing matters. Appellant again claims harm from the extreme sentences, which he contends resulted from the loss of credibility of trial counsel, who stood mute while being impugned by the prosecutor's argument.

The State responds that the prosecutor was targeting the psychologist, not trial counsel, and that there was evidence that appellant had read psychology books to manipulate his psychologist.

Even if trial counsel should have objected to the prosecutor's argument, an isolated lapse does not amount to ineffective assistance of counsel, as long as counsel's overall representation is effective. See Ex parte Welborn, 785 S.W.2d at 393; Wilkerson, 726 S.W.2d at 548. Indeed, appellant makes no claim that trial counsel's overall representation was deficient during the lengthy, four-day trial. Moreover, appellant has not established harm. Appellant has not shown that, but for trial counsel's failure to object, another result would have probably occurred.

Accordingly, we overrule appellant's third issue presented for review.

Not Requesting a Limiting Instruction

In his fifth issue presented for review, appellant contends his trial counsel was ineffective for failing to request a limiting instruction concerning the underlying facts of an expert's opinion. Appellant argues that a limiting instruction would have limited the jury's consideration of appellant's sexually explicit letters to the validity of the expert's opinion and for no other purpose. Appellant relies on trial counsel's admission that trial counsel had no trial strategy for not requesting a limiting instruction. Appellant claims prejudice from the letters' portrayal of appellant as a "masochistic, sex-crazed pervert." Appellant points out that the prosecutor spent 20 pages of the record developing what appellant claims is the most injurious and prejudicial evidence the prosecutor elicited, aside from the offense itself.

Despite trial counsel's having denied that trial strategy was the reason for not requesting an instruction, the State points out that not requesting a limiting instruction can be considered trial strategy because not requesting the instruction avoids emphasizing evidence that would be the subject of that instruction. The State also argues that appellant did not meet his burden of showing that the result of the trial would have been different if a limiting instruction had been requested.

The record shows that the prosecutor used portions of letters, which appeared to be written in response to personal ads, during cross-examination of appellant's psychologist. Trial counsel had provided the letters to the psychologist for the purpose of evaluating appellant and his risk of reoffending. Appellant told the psychologist that he had written the letters with a friend as a joke. Appellant signed the letters, included his phone number, and requested that callers be discreet because he had roommates. In the letters, appellant wrote the following: "I love breaking taboos."; "I'm very oral and I like to perform it just as much as I receive it."; "I would like to make you come until you go crazy. I'm 21, five-foot-ten, 170 pounds, very athletic. I'm told I'm good-looking, have blue eyes, brown hair, and I love sarcasm."; "I dated plenty of bimbos but never anyone who was willing to take control. Help, I love to perform oral and anything else to drive the woman I'm with crazy. I would like to me [sic] some of you to prove myself."; "You sound like just the whore I have been waiting for. I'm five-foot-ten, 170 pounds, athletic with brown hair and blue eyes. I'm also 21 years old. I also have eight inches of cock you'll never forget. Call me, but be discreet, I have roommates."; "I'm very athletic with brown hair and blue eyes. I also have a seven-and-a-half inch cock and more oral than you could imagine. Call me, but please be discreet, I have roommates. I can give you wilder sex then [sic] any 30-to-50 year [sic] can."; "I'm not promiscuous and am drug and disease free. I would like to make it clear, though, that I am very heterosexual, not interested in any bi-contact. I'm not opposed however to a menage a trois."; and "I love to dominate in bed, and I love to turn any woman I'm with into a cock-sucking slave. My cock is seven-and-a-half inches. I satisfy your Greek curiosity, you'll never forget it. You said in your ad that you are very oral. I think I'm the oral expert you've been looking for."

In his cross-examination of the psychologist, the prosecutor treated the letters as illustrating appellant's fantasies. The prosecutor asserted that the letters showed (1) appellant was fantasizing about all sorts of sex prior to the rapes and (2) appellant had a progression of sexual fantasies about deviant sexual acts as a precursor to raping the two women. The psychologist did point out that the fantasies involved willing partners, although the acting out was with unwilling partners. At one point, the prosecutor emphasized that appellant turned the two victims into "his cock-sucking slaves." When asked if the fantasies in the letters spoke to whether appellant would be an appropriate candidate for probation and treatment, the psychologist testified that, even without the letters, her opinion would have been that he had fantasized prior to the rapes. When asked if it was significant that appellant had admitted these fantasies to the psychologist, but denied them in testifying to the jury, the psychologist testified that denial would not be unusual or significant because denial is common with sex offenders prior to treatment.

The letters were mentioned only once during closing argument, and that instance was within the context of showing appellant was a liar. The prosecutor argued that, despite appellant's psychologist's having testified that all sex offenders have sexual fantasies before their rapes, appellant had taken the stand, looked the jurors in the eye, and denied he had fantasies. The prosecutor then argued that the jury could know that appellant was lying about not fantasizing because of "the letters that said he wants every woman to be his cock-sucking whore, or words to that effect, excuse my language."

We note that the prosecutor did not confine his use of the letter excerpts during jury argument to attacking the validity of the psychologist's opinion. Rather, the prosecutor used the excerpt to impeach appellant's testimony about whether appellant had fantasized. In the same context, the prosecutor relied on the defense psychologist's opinion that appellant had fantasized to demonstrate the point that appellant was a liar for denying that he had fantasized. The prosecutor did not use the letter excerpts to urge the jury to sentence appellant more severely because appellant was a pervert for writing such letters. The only use the prosecutor made of the letter excerpts was cumulative of his use of some of the testimony from appellant's own psychologist. The prosecutor used both the letter excerpts and the testimony to show appellant was lying about not having fantasized before committing the offenses. Considering all of the circumstances, we conclude that, even if trial counsel was deficient for not requesting a limiting instruction, appellant did not meet his burden to show that he was more severely punished because of the lack of that instruction.

Accordingly, we overrule appellant's fifth issue presented for review.

Impeachment of Expert With Inadmissible Letter Excerpts

In his fourth issue presented for review, appellant complains that the trial court abused its discretion in allowing the prosecutor to question the defense psychologist concerning the sexually explicit letters appellant had written. Appellant argues that the trial court's ruling is contrary to the balancing test of rule 705(d) of the Texas Rules of Evidence. See Tex. R. Evid. 705(d). (2)

Appellant acknowledges the psychologist's opinion that appellant had a medium-high risk for reoffending, would respond well to outpatient treatment, and would thus be capable of rehabilitation, and also acknowledges that the psychologist based her opinions on the entire contents of her file, including the personal want-ad letters written by appellant before the sexual assaults. Appellant claims that testimony from the psychologist that the letters did not alter her opinion that appellant was a suitable candidate for probation made the letters irrelevant and, thus, inadmissible. Appellant overlooks that the very reason the prosecutor wanted to use the letter excerpts was to impeach the psychologist's opinion by showing that the letter excerpts should have caused the expert to reach a different conclusion. Referring to inadmissible matters to impeach an expert who considered those matters is well established. See Nenno v. State, 970 S.W.2d 549, 564 (Tex. Crim. App. 1998) (concluding State was entitled to cross-examine capital-murder defendant's testifying expert concerning contents of report made by that expert's colleague, who had interviewed defendant about crime, when testifying expert relied upon other expert's report in forming his own opinion).

Accordingly, we overrule appellant's fourth issue presented for review.

 

Conclusion

We affirm the judgment of the trial court.

 

Tim Taft

Justice

 

Panel consists of Justices Taft, Alcala, and Price. (3)

 

Do not publish. Tex. R. App. P. 47.4.

1. The trial court had ruled the search producing the letters was unlawful.

2. Rule 705(d) provides as follows:

 

When the underlying facts or data would be inadmissible in evidence, the court shall exclude the underlying facts or data if the danger that they will be used for a purpose other than as explanation or support for the expert's opinion outweighs their value as explanation or support or are unfairly prejudicial. If otherwise inadmissible facts or data are disclosed before the jury, a limiting instruction by the court shall be given upon request.

 

Tex. R. Evid. 705(d).

3. The Honorable Frank C. Price, former Justice, Court of Appeals, First District of Texas at Houston, participating by assignment.