Kevin Lloyd Dinsmore v. The State of Texas--Appeal from 174th District Court of Harris County

Affirmed and Memorandum Opinion filed May 20, 2008

Affirmed and Memorandum Opinion filed May 20, 2008.

In The

Fourteenth Court of Appeals

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NO. 14-06-01089-CR

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KEVIN LLOYD DINSMORE, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 174th District Court

Harris County, Texas

Trial Court Cause No. 1054831

M E M O R A N D U M O P I N I O N

Appellant Kevin Lloyd Dinsmore appeals his conviction for aggravated sexual assault of a child, claiming (1) ineffective assistance of counsel, (2) error by the trial court in admitting evidence without proper predicate under the hearsay business-records exception, (3) reversible error because the trial court permitted the State to argue matters allegedly outside of the record in closing argument, and (4) error by the trial court in admitting extraneous-offense evidence. We affirm.

I. Factual and Procedural Background

Appellant knew the complainant, Lucy,[1] a thirteen-year-old child, because he was friends with Lucy=s older brother. Lucy=s mother learned that appellant had sex with Lucy and reported the abuse. The sheriff=s office investigated the matter and referred Lucy to the Children=s Assessment Center, where she was interviewed on videotape by a forensic interviewer.

Appellant was charged by indictment with aggravated sexual assault of a child, to which he pleaded Anot guilty.@ At trial, Lucy testified that when she was eleven years old, appellant came to her room one morning and kissed her; appellant was nineteen years old at the time. Lucy described how over the next three months, appellant kissed and Amade-out@ with her. Lucy testified that just before her twelfth birthday, appellant had sexual intercourse with her. According to Lucy, they had sexual intercourse four more times over the next four months. Lucy admitted having affectionate feelings for appellant during this time. Lucy testified that appellant told her not to tell anyone about their sexual encounters because he could go to jail, and Lucy explained that she never told.

Lucy=s mother testified that appellant often spent the night at her home as a guest of Lucy=s brother. Lucy=s mother testified that on one occasion she saw appellant leaving Lucy=s room early in the morning. Lucy=s mother noticed that although Lucy and appellant used to be friendly with each other, their relationship changed and the two seemed distant. The change occurred about the same time that appellant began dating Pearl, who became appellant=s girlfriend. Lucy=s mother testified that she learned from Lucy=s brother that appellant had sex with Lucy, and Lucy=s mother reported the abuse to law enforcement.

Appellant testified and denied having sexual intercourse with Lucy. He admitted spending the night at Lucy=s house as a guest of Lucy=s brother. He explained that he learned from Lucy=s brother that Lucy had a Acrush@ on him. According to appellant, Lucy tried to kiss him when Lucy went swimming with Pearl and Lucy=s brother at appellant=s apartment complex. After Lucy attempted to kiss him, appellant asked Pearl to talk to Lucy about the kiss.

Pearl testified on appellant=s behalf. Pearl knew Lucy because of appellant=s friendship with Lucy=s brother. Pearl testified that on one occasion, Pearl, Lucy, and Lucy=s brother went swimming together at appellant=s apartment complex. On that occasion, Pearl learned from appellant that Lucy had tried to kiss him, and Pearl chided Lucy. At trial, Pearl denied having any knowledge that appellant had sexual intercourse with Lucy, and Pearl denied telling anyone that Lucy had sex with appellant. However, Jennifer, a mutual acquaintance of appellant and Lucy=s family, testified that Pearl told her that appellant had sex with Lucy. This information was corroborated by another mutual acquaintance. Lucy=s brother testified that Jennifer notified him of appellant=s conduct with Lucy, and Lucy=s brother, in turn, notified his mother.

A jury found appellant guilty as charged. The judge sentenced him to ten years= confinement.

II. Issues and Analysis

 A. Did appellant receive ineffective assistance of counsel when his trial counsel failed to object to the State=s direct examination of the investigating detective?

In his third issue, appellant claims he was denied effective assistance of counsel. Appellant claims his trial counsel should have objected to the following exchange during the State=s direct examination of investigating officer Detective Gilbert, because the detective=s testimony referred to appellant=s invocation of appellant=s right to counsel:

[PROSECUTOR]: Did you try to contact anybody else in this case?

[DETECTIVE]: Yes. I tried to contact the defendant and I did make contact with the defendant.

. . .

[DETECTIVE]: I contacted [appellant]. He said he wanted to contact his attorney and they would be back in contact with me. That happens all the time. I said, that=s fine, but I need to hear from y=all by this date.

[PROSECUTOR]: Did you hear back from them?

[DETECTIVE]: No. I got a voice mail from his attorney stating that at this time we=re not going to give a statement.

. . .

[PROSECUTOR]: So, the defendant never came in and talked to you, correct?

[DETECTIVE]: No, ma=am.

[PROSECUTOR]: He never admitted nor denied, correct?

[DETECTIVE]: No, ma=am.

Both the United States and Texas Constitutions guarantee an accused the right to assistance of counsel. U.S. Const. amend. VI; Tex. Const. art. I, ' 10; see Tex. Code Crim. Proc. Ann. art. 1.051 (Vernon 2005). This right necessarily includes the right to reasonably effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984); see Ex parte Gonzales, 945 S.W.2d 830, 835 (Tex. Crim. App. 1997). To prove ineffective assistance of counsel, appellant must show that (1) trial counsel=s representation was deficient in that it fell below an objective standard of reasonableness, based on prevailing professional norms; and (2) the deficiency prejudiced appellant in that there is a reasonable probability that the result of the proceeding would have been different but for trial counsel=s deficient performance. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). Appellant bears the burden of proving his claims by a preponderance of the evidence. Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998).

To succeed on claims of ineffective assistance of counsel for failure to object, appellant must demonstrate that the trial court would have erred in overruling the objection if trial counsel had objected. See Vaughn v. State, 931 S.W.2d 564, 566 (Tex. Crim. App. 1996). If the evidence complained of is admissible, then an appellant cannot show that his trial counsel=s conduct was ineffective in failing to object to it. See Oliva v. State, 942 S.W.2d 727, 732 (Tex. App.CHouston [14th Dist.] 1997), pet. dism=d, 991 S.W.2d 803 (Tex. Crim. App. 1998); Cooper v. State, 707 S.W.2d 686, 689 (Tex. App.CHouston [1st Dist.] 1986, pet. ref=d). Even if the evidence would be excluded on some basis, trial counsel may have a sound strategy in not objecting to the evidence if the evidence does not harm appellant=s case. See Stafford v. State, 813 S.W.2d 503, 508 (Tex. Crim. App. 1991). Finally, even if the evidence is inadmissible and prejudicial, trial counsel=s failure to object will not result in reversal of appellant=s conviction unless appellant demonstrates that the outcome of his trial would have been different had the evidence not been admitted. Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001).

We first assess whether the evidence was admissible even if trial counsel had objected. See Vaughn, 931 S.W.2d at 566. Appellant claims that the officer=s testimony was an improper comment on appellant=s invocation of his right to counsel.[2] Statements that an accused wants to speak with an attorney are best characterized as a desire to remain silent rather than a desire for the assistance of counsel. See State v. Lee, 15 S.W.3d 921, 923B24 (Tex. Crim. App. 2000) (making a statement indicating no interest in talking to police and expressing desire to contact an attorney was not a statement asking for his attorney; rather, the statement is viewed as an attempt to convey a desire to remain silent), overruled on other grounds by Ex parte Lewis, 219 S.W.3d 335 (Tex. Crim. App. 2007); see also Combs v. Coyle, 205 F.3d 269, 279 (6th Cir. 2000) (analyzing comment about wanting to Atalk to my lawyer@ as a statement of pre-arrest silence). Detective Gilbert=s testimony related to appellant=s comments made prior to being placed under arrest or placed in police custody and prior to any charges being filed. Pre-arrest silence is a constitutionally permissible area of inquiry, and admitting such testimony results in no error. Waldo v. State, 746 S.W.2d 750, 755 (Tex. Crim. App. 1988); see Rosas v. State, 76 S.W.3d 771, 776 (Tex. App.CHouston [1st Dist.] 2002, no pet.); 24 Tex. Jur. 3d Exercise of Rights by Defendant ' 3312 (2008). The disputed testimony is admissible evidence as pre-arrest silence, rather than an impermissible comment on appellant=s invocation of his right to an attorney. See Waldo, 746 S.W.2d at 755; Rosas, 76 S.W.3d at 776. Because the evidence in question is admissible, appellant cannot show that his trial counsel was deficient in failing to object to it. See Waldo, 746 S.W.2d at 755; Cooper, 707 S.W.2d at 689.

Appellant has not shown that his trial counsel=s performance was deficient. See Stafford, 813 S.W.2d at 508; Green v. State, 191 S.W.3d 888, 895 (Tex. App.CHouston [14th Dist.] 2006, pet. ref=d). Therefore, we overrule his third issue.

B. Did the trial court err in admitting evidence without proper predicate under the hearsay business-records exception?

In his first issue, appellant complains that the trial court erred in permitting records of incoming and outgoing calls and text messages to Lucy=s cell phone into evidence in violation of the business-records exception to the hearsay rule. Specifically, appellant claims that the State failed to lay the proper predicate for the admission of such records. We review a trial court=s decision to admit or exclude evidence for an abuse of discretion. Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003); Mozon v. State, 991 S.W.2d 841, 846B47 (Tex. Crim. App. 1999). If the trial court=s ruling was within the zone of reasonable disagreement, we must affirm. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on reh=g).

Lucy testified that each time she and appellant had sex, appellant would communicate with her numerous times by cell phone or text messages to coordinate their meetings. However, in response to appellant=s cross-examination, Lucy explained that she had no proof of those communications. The State recalled Lucy=s mother and then offered an incomplete phone log of incoming and outgoing phone calls and text messages on Lucy=s cell phone for the eight-month period in which the State alleged appellant and Lucy had maintained a sexual relationship. Lucy=s mother testified that the account for Lucy=s cell-phone number was listed in the mother=s name but that the phone belonged to Lucy. Lucy=s mother requested the phone log from the wireless carrier and received it on the morning of trial. She recognized appellant=s cell phone number as it was listed in the invoice. The document showed hundreds of phone calls exchanged between appellant=s cell phone and Lucy=s cell phone in an eight-month period. The log indicated that appellant=s call volume peaked with as many as twelve or thirteen calls a day near the dates Lucy testified they had sex. Though appellant objected that no appropriate predicate had been laid for admitting the document as a business record, the trial court overruled his objection.

The predicate for introducing a document under the business-records exception to the hearsay rule requires proof that (1) the record was made by or from information transmitted by a person with personal knowledge of the events or conditions recorded, (2) the record was made at or near the time of the events or conditions recorded, and (3) the reporting entity=s ordinary course of business was to make and keep such records. See Tex. R. Evid. 803(6). Presuming without deciding that the document was offered as a business record and that the trial court erred in admitting it into evidence without first requiring the proper predicate be established, any error was harmless. See Willis v. State, 785 S.W.2d 378, 383 (Tex. Crim. App. 1989). The same facts were established by other, admissible evidence introduced without objection. See id.

The record reflects that Lucy testified without objection that she had numerous phone communications with appellant. Because the records established the same information that Lucy already disclosed in her testimony without appellant=s objection, the mother=s testimony about the phone records was cumulative. Any error in admitting the phone records was thus harmless. See id.

Additionally, the record contains ample evidence to establish beyond a reasonable doubt that appellant committed aggravated sexual assault, and neither appellant=s conviction nor his punishment was in anyway dependant upon the disputed phone records. See Anderson v. State, 717 S.W.2d 622, 628 (Tex. Crim. App. 1986) (deeming harmless any error in admitting evidence when Aother evidence of defendant=s guilt is overwhelming[] [and] independent of the erroneously admitted evidence@); see also White v. State, 630 S.W.2d 900, 904 (Tex. App.CAmarillo 1982, pet. ref=d). Because Lucy=s testimony and other evidence in the record was sufficient in itself to support appellant=s conviction, the admission of the phone log does not constitute reversible error. See Anderson, 717 S.W.2d at 628; White, 630 S.W.2d at 904. We overrule appellant=s first issue.

C. Did the trial court err in admitting extraneous-offense evidence?

In his fourth issue, appellant complains the trial court erred in admitting extraneous-offense evidence that one year before the charged offense appellant had sexual intercourse with a thirteen-year-old girl. Specifically, appellant complains that the extraneous-offense evidence was admitted in violation of Texas Rules of Evidence 403 and 404(b). A trial court=s ruling on the admissibility of evidence is reviewed under an abuse-of-discretion standard. Moses, 105 S.W.3d at 627. If the trial court=s ruling was within the zone of reasonable disagreement, there is no abuse of discretion. Id.

Outside the jury=s presence, the State indicated that extraneous-offense evidence may be admissible to rebut a defensive theory of retaliation. The trial court ruled that the extraneous-offense testimony may be admitted over appellant=s Rule 403 objection. The State then offered testimony from Penny[3] that when Penny was thirteen years old and appellant was nineteen years old, they had sexual intercourse on at least eight occasions. Penny testified that appellant may not have known her age when they began having sex, but when Penny told appellant her true age, appellant continued having sexual intercourse with her anyway.

Appellant=s claim, that Penny=s testimony was Adamning character evidence@ offered in violation of Rule 404(b), is waived because he failed to preserve the complaint for review. See Tex. R. App. P. 33.1(a)(1)(A) (requiring a trial court objection to comport with objection on appeal); Camacho v. State, 864 S.W.2d 524, 533 (Tex. Crim. App. 1993). Appellant=s objection at trial must comport with the complaint he raises on appeal. See Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002); Lopez v. State, 200 S.W.3d 246, 251 (Tex. App.CHouston [14th Dist.] 2006, pet. ref=d). Though appellant objected at trial to Penny=s testimony under Rule 403, he failed to voice an objection under Rule 404(b) and, therefore, waived this argument. See Tex. R. App. P. 33.1(a)(1)(A) (requiring a trial court objection to comport with objection on appeal); Wilson, 71 S.W.3d at 349; Lopez, 200 S.W.3d at 251.

Under appellant=s Rule 403 claim, even if relevant evidence is offered and admitted, a trial court nonetheless should exclude it from evidence if the probative value of the evidence is substantially outweighed by the danger of unfair prejudice. Tex. R. Evid. 403; Moses, 105 S.W.3d at 626; Montgomery, 810 S.W.2d at 387. Courts should balance the following factors under a Rule 403 analysis: (1) the strength of the evidence in making a fact more or less probable, (2) the potential of the extraneous-offense evidence to impress the jury in some irrational but indelible way, (3) the amount of time the proponent needed to develop the evidence, and (4) the strength of the proponent=s need for this evidence to prove a fact of consequence. Mozon, 991 S.W.2d at 847. When, as in this case, the record is silent as to the trial court=s balancing of these factors, we presume that the trial court conducted the balancing test. See Williams v. State, 958 S.W.2d 186, 195B96 (Tex. Crim. App. 1997).

Though Penny=s testimony is prejudicial, the first of the balancing factors, the strength of the evidence to make a fact of consequence more or less probable, weighs in favor of admissibility. Penny=s testimony was probative to rebut appellant=s purported defensive theory that Lucy fabricated the allegations to retaliate against him for not returning her affectionate feelings. See Wheeler v. State, 67 S.W.3d 879, 888 (Tex. Crim. App. 2002). Penny=s extraneous-offense testimony regarding appellant=s sexual relationship with her, a thirteen-year-old girl, only one year earlier makes it less likely that Lucy=s allegations are the result of retaliation or fabrication.

As to the second and third factors, though danger lurks in impressing the jury in an indelible way and Penny=s testimony is undecidedly prejudicial and carries some emotional weight, any unfair prejudice is not outweighed by the probative value. See Dennis v. State, 178 S.W.3d 172, 181 (Tex. App.CHouston [1st Dist.] 2005, pet. ref=d). The State spent minimal time developing Penny=s testimony, and it was neither lengthy nor graphic; the jury is not likely to have been impressed in some irrational or indelible way. See id. Therefore, the second and third factors weigh in favor of admissibility.

The fourth factor, requiring balancing of the State=s need for such extraneous-offense evidence, is significant. Lucy did not tell anyone about her allegations until Lucy=s mother confronted her almost six months later; there was no physical evidence, and no other witnesses could support Lucy=s testimony. The State demonstrated the need for Penny=s testimony because only Lucy=s testimony established the charged offense and her testimony was contradicted by appellant and Pearl. Because appellant strongly contested Lucy=s allegations, the State demonstrated the need to counter appellant=s theory that Lucy fabricated the allegations in order to retaliate against appellant for not returning her amorous feelings. See id. As such, this factor weighs heavily in favor of admissibility.

A trial court=s 403 ruling admitting extraneous-offense evidence must be upheld so long as it is Awithin the zone of reasonable disagreement.@ Montgomery, 810 S.W.2d at 391. In balancing the above factors, the prejudice from Penny=s extraneous-offense testimony, does not outweigh its probative value. The trial court=s ruling is within the zone of reasonable disagreement. See Williams, 958 S.W.2d at 195B96; Moses, 105 S.W.3d at 626. Accordingly, we conclude the trial court did not abuse its discretion under Rule 403 in admitting the extraneous-offense evidence. See Moses, 105 S.W.3d at 627. We overrule appellant=s fourth issue.

D. Did the trial court reversibly err in permitting the State to argue matters allegedly outside the record in its closing argument?

In his second issue, appellant complains the trial court reversibly erred in permitting the State to argue outside the record. During appellant=s closing argument, appellant=s trial counsel asked the jury to focus on Lucy=s credibility and to consider her story as told to employees at the Children=s Assessment Center, when she indicated that she and appellant had sexual intercourse three to four times and appellant did not ejaculate at those times versus her testimony at trial, when she indicated appellant ejaculated a fifth time they had intercourse. Appellant complains the State, in its own closing argument, improperly referred to Lucy=s videotaped interview with the forensic interviewer at the Children=s Assessment Center, which was not in evidence. Specifically appellant complains of the following statements made in the State=s closing argument:

[PROSECUTOR]: Now let=s talk about [Lucy], her testimony. She=s credible, consistent. I mean, if the best you can do is go from the [medical] records and say four versus five times, ejaculation here. . . . But if the best you can do is she is inconsistent, four or five times, let=s shut the books, get out of here, that=s a liar. I mean, that=s not inconsistent. You know she did the children[=s] assessment video a year ago where she=s on videotapeC

Upon appellant=s trial counsel=s objection to the State=s reference to Lucy=s videotaped interview, the trial court sustained appellant=s objection. When appellant moved for a mistrial, the trial court denied appellant=s motion. The State then argued to the jury that the investigating detective testified that Lucy conducted an interview with a forensic interviewer on videotape. Appellant=s counsel said, AOutside,@ in reference to the State=s mention of the detective=s testimony of the video to which the trial judge said, AOverruled.@ The State next argued to the jury that had the videotape shown any inconsistencies in Lucy=s account, the defense attorney would have questioned Lucy about it, but the State indicated that no inconsistencies existed.

A proper jury argument must fit in one of four general areas: (1) summation of evidence, (2) reasonable deductions from the evidence, (3) answers to the arguments of opposing counsel, and (4) pleas for law enforcement. Cannon v. State, 668 S.W.2d 401, 404 (Tex. Crim. App. 1984). The test to determine whether an improper argument constitutes reversible error is whether: (1) the argument violates a statute, (2) injects a new and harmful fact into the case, or (3) manifestly and improperly harms or prejudices the rights of the accused. Id.

Detective Gilbert testified without any objection that upon Lucy=s referral to the Children=s Assessment Center, a forensic interviewer conducted a videotaped interview with Lucy. The State may draw from the facts in evidence all inferences that are reasonable, fair, legitimate and offered in good faith. Denison v. State, 651 S.W.2d 754, 761B62 (Tex. Crim. App. 1983). Attorneys for the State or for the accused are permitted to discuss evidence that is reflected in the record. Id. Therefore, the State=s reference to the existence of the videotape during closing argument was proper summation of the evidence as reflected in the record; no improper references to matters outside the record were made, and no error exists in such an argument. See Gaddis v. State, 753 S.W.2d 396, 400 (Tex. Crim. App. 1988).

Furthermore, the State argued in its closing argument that appellant=s trial counsel would have questioned Lucy regarding any inconsistencies in Lucy=s story at the Children=s Assessment Center and in her testimony at trial. However, appellant=s trial counsel in closing argument made the first reference to the substance of Lucy=s videotaped interview in which Lucy indicated she had sex with appellant three to four times and appellant did not ejaculate. Appellant complains the State=s jury argument made reference to the of the videotape content, the same content appellant=s trial counsel mentioned in closing argument, as a way of bolstering Lucy=s testimony. However, the State=s argument was made in response to appellant=s trial counsel=s own closing argument in which he questioned Lucy=s credibility by alleging inconsistencies between Lucy=s trial testimony and Lucy=s account in the videotape. See Turner v. State, 482 S.W.2d 277, 279 (Tex. Crim. App. 1972); Gonzales v. State, 831 S.W.2d 491, 494 (Tex. App.CHouston [14th Dist.] 1992, pet. ref=d). Therefore, as an argument in response to appellant= trial counsel=s closing argument alleging inconsistencies in Lucy=s testimony, the State=s argument is a proper argument invited by appellant=s trial counsel=s closing argument. See Turner, 482 S.W.2d at 279; Gonzales, 831 S.W.2d at 494. No reversible error exists.

Even if we were to hold the State=s jury argument improper, it is nonetheless harmless beyond a reasonable doubt and did not contribute to the verdict. See Cantu v. State, 842 S.W.2d 667, 690 (Tex. Crim. App. 1992). On this record, we conclude that the State=s argument and reference to the videotape cannot be said to have contributed to the jury=s assessment of guilt given Lucy=s own, detailed testimony of sexual intercourse with appellant. See id. We overrule appellant=s second issue.

Having overruled appellant=s four issues on appeal, we affirm the trial court=s judgment.

/s/ Kem Thompson Frost

Justice

Judgment rendered and Memorandum Opinion filed May 20, 2008.

Panel consists of Justices Fowler, Frost, and Seymore.

Do Not Publish C Tex. R. App. P. 47.2(b).

[1] The child complainant is identified by the pseudonym ALucy.@

[2] AIn a criminal case neither the judge or the attorney representing the state may comment on the fact that the defendant has contacted or retained an attorney in the case.@ Tex. Code Crim. Proc. Ann. art. 38.38 (Vernon 2005); State v. Lee, 15 S.W.3d 921, 923B24 (Tex. Crim. App. 2000), overruled on other grounds, Ex parte Lewis, 219 S.W.3d 335 (Tex. Crim. App. 2007). However, a pre-arrest statement that investigating officers should confer with the accused=s attorney is viewed as invoking the right to silence. Lee, 15 S.W.3d at 923B24. AAlthough, by statute, an attorney representing the State may not comment on the fact that a defendant has contacted or retained an attorney, an argument regarding a defendant=s pre[-]arrest request for an attorney or silence in response to police questions may not be improper.@ 24 Tex. Jur. 3d Exercise of Rights by Defendant ' 3312 (2008); see Lee, 15 S.W.3d at 923B24; Waldo v. State, 746 S.W.2d 750, 755 (Tex. Crim. App. 1988); see also Abbring v. State, 882 S.W.2d 914, 915 (Tex. App.CFort Worth 1994, no pet.). In this case, appellant was interviewed by Detective Gilbert before any charges were brought against him; therefore, Detective Gilbert=s testimony, as elicited by the State, to appellant=s comment about contacting an attorney in response to Detective Gilbert=s pre-arrest questions is not improper. See Lee, 15 S.W.3d at 923B24; Waldo, 746 S.W.2d at 755; Abbring, 882 S.W.2d at 915; 24 Tex. Jur. 3d Exercise of Rights by Defendant '3312 (2008).

[3] This child witness is identified by the pseudonym APenny.@