Keith Stuart Henry v. The State of Texas--Appeal from 262nd District Court of Harris County

Affirmed and Memorandum Opinion filed December 18, 2008

Affirmed and Memorandum Opinion filed December 18, 2008.

In The

Fourteenth Court of Appeals

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NO. 14-07-00706-CR

NO. 14-07-00707-CR

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KEITH STUART HENRY, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 262nd District Court

Harris County, Texas

Trial Court Cause Nos. 1045670 & 1048519

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

Keith Stuart Henry was convicted of two counts of aggravated sexual assault of a child under fourteen years of age, and sentenced to forty-five years= confinement in the Institutional Division of the Texas Department of Criminal Justice for each count. Henry now appeals his convictions, asserting that he was denied his rights to effective assistance of counsel at trial under both the Texas and United States Constitutions. We affirm.

BACKGROUND

Appellant and complainant=s mother, Gina Hailey, had a dating relationship but never married. Complainant was born after Gina had ended the relationship. Though appellant is complainant=s biological father, he was not involved in her life for several years. In fact, appellant did not meet complainant until she was about four years old. Gina had met appellant through his sister, Sharay Henry. After complainant was born she played regularly with Sharay=s children. During this time, complainant knew appellant simply as AUncle Keith.@

Several years after complainant was born, Gina married another man and had a child with him. Similarly, appellant married and had two other children with his wife, Shirley.

Not long after complainant=s seventh birthday, Gina decided to tell her that appellant was her biological father, and to allow the two of them to spend time together. Complainant began visiting appellant, his wife, and their children in 2004. Ultimately she began to have overnight visits every other weekend at appellant=s apartment.

Shortly after complainant began spending the night at appellant=s apartment, she developed a rash in her vaginal area. Appellant and his wife informed Gina of the rash, but all three of them initially believed the rash to be an allergic reaction to toilet paper. The rash was treated with over-the-counter ointment. A doctor examined complainant during a well-child check-up in October 2004, and was not alarmed.

The rash continued to appear irregularly over the next few months. However, in May 2005, after complainant had spent a weekend visiting appellant, Gina observed visible sores on complainant=s vaginal area as well as around her buttocks. Gina took complainant to see a doctor where she learned that complainant was infected with the Herpes Simplex 1 virus.[1] Later it was discovered that both appellant and his wife also tested positive for the same virus.

Before delivering the diagnosis to complainant=s mother, her doctor privately asked complainant if she wanted to tell her anything. Complainant declined. Later, after learning of her daughter=s condition, Gina also asked complainant if there was anything she wanted to talk about. Again, complainant declined. Soon thereafter, Gina took complainant to spend the night with Gina=s sister, Denise Grant, and Denise=s children. While staying at Denise=s house, complainant told Denise that appellant had been putting his finger inside her. Denise told Gina what complainant had told her, and Gina called the police. The police made a report and referred Gina to the Harris County Children=s Assessment Center.

Gina took complainant to the Children=s Assessment Center where she spoke with a forensic interviewer. The interviewer later testified that complainant told her that appellant had touched her when she went to his apartment every Friday, Saturday, and Sunday. These incidents allegedly took place in the bedroom of his apartment when no one else but her younger brother was present. According to complainant, appellant would abuse her while she was changing out of her school uniform into her play clothes. Complainant described to the interviewer how appellant had performed sexual acts upon her, as well as caused her to perform sexual acts on him. According to complainant, these acts continued over a nine-month period. Charges were filed against appellant in June 2005.

Appellant was charged with two counts of aggravated sexual assault of a child under the age of fourteen. Appellant=s first trial ended in a mistrial. During the second trial, complainant testified with graphic descriptions of the acts between her and appellant, as well as a description of appellant=s genitals. Additionally, the prosecution presented the testimony of Gina, the forensic interviewer, complainant=s examining physician, and her Aunt Denise.

The prosecution also introduced the testimony of Roger Blunt. Blunt, who had an extensive criminal history, had been in the same jail pod with appellant while they awaited trial for unrelated offenses. Blunt testified that after he and appellant had been together long enough to become acquainted, appellant began to tell him about the circumstances of his arrest. Further, appellant admitted to abusing complainant and told Blunt of his acts in graphic detail. Blunt indicated that appellant became physically aroused when describing the abuse of his daughter. Blunt also testified that another inmate named AArsonal@ had heard appellant relate the same information. Appellant did not call any witnesses, other than himself, to contradict this testimony.

Appellant was convicted on both counts and sentenced to forty-five years= confinement in the Institutional Division of the Texas Department of Criminal Justice for each charge, to be served concurrently. Appellant then timely filed this appeal.

After giving notice of appeal, and after obtaining new counsel, appellant filed a motion for new trial. The basis for this motion was that appellant was denied the effective assistance of counsel during his trial because his trial counsel failed to investigate or subpoena a witness who could have contradicted Blunt=s testimony. The trial court reviewed affidavits of appellant=s trial counsel, appellant, appellant=s wife Shirley, and Shapreal James ArceneauxCthe witness Blunt identified in his trial testimony as AArsonal.@ Both appellant and Arceneaux denied that the holding-cell conversations ever took place. Further, both appellant and his wife stated that appellant=s trial counsel had been informed of a witness who could contradict Blunt=s testimony, but that appellant=s lawyer failed to investigate or subpoena testimony from this witness. After reviewing these affidavits, the court denied appellant=s motion for new trial.

ANALYSIS

Appellant challenges his conviction on both counts asserting that he was denied his constitutional right to effective counsel. Specifically, he argues that his court-appointed lawyer=s conduct fell beneath the standard of reasonable assistance because he failed to investigate or subpoena testimony from a rebuttal witness suggested by appellant. The State replies that adequate trial counsel was provided, and that appellant himself told his lawyer not to contact the witness.

In reviewing claims of ineffective assistance of counsel, we apply a two prong test. See Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). To establish ineffective assistance, appellant must prove by a preponderance of the evidence that (1) his trial counsel=s representation fell below the standard of prevailing professional norms, and (2) there is a reasonable probability that, but for counsel=s deficiency, the result of the trial would have been different. Id.

An accused is entitled to reasonably effective assistance of counsel. Strickland, 466 U.S. at 686; King v. State, 649 S.W.2d 42, 44 (Tex. Crim. App. 1983). When evaluating a claim of ineffective assistance, the appellate court looks to the totality of the representation and the particular circumstances of each case. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). There is a strong presumption that counsel=s conduct fell within a wide range of reasonable representation. Salinas, 163 S.W.3d at 740 (citing Mallet v. State, 65 S.W.3d at 59, 63 (Tex. Crim. App. 2001)). To overcome the presumption of reasonable professional assistance, A[a]ny allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness.@ Thompson, 9 S.W.3d at 814. When determining the validity of an ineffective-assistance claim, any judicial review must be highly deferential to trial counsel and avoid the distorting effects of hindsight. Ingham v. State, 679 S.W.2d 503, 509 (Tex. Crim. App. 1984) (citing Strickland, 466 U.S. at 689).

If a criminal defendant can prove that trial counsel=s performance was deficient, he must still affirmatively prove he was prejudiced by counsel=s actions. Thompson, 9 S.W.3d at 812. This requires the defendant to demonstrate a reasonable probability that the result of the proceeding would have been different if trial counsel had acted professionally. Id. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001).

In the present case, appellant argues that his court-appointed attorney=s conduct fell below the objective level of performance for a reasonable attorney when he failed to either investigate or subpoena the suggested witness. According to appellant=s affidavit testimony introduced in support of his motion for new trial, appellant informed his trial counsel of this witness in response to Blunt=s trial testimony. According to appellant, he told his attorney that (1) the conversations described by Blunt never happened; (2) appellant and Blunt were never alone in the cell, but were confined along with another inmate named Arceneaux; and (3) Arceneaux could contradict Blunt=s testimony. In support of his motion for new trial, appellant also attached an affidavit of Arceneaux testifying to all three points. Further, appellant also attached an affidavit of his wife, stating that appellant had discussed this witness with counsel on the evening before the trial began.

Appellant did testify at trial, stating that the conversations Blunt described never took place. However, appellant asserts that because his attorney never called Arceneaux to testify, the jury was left to believe either Blunt or appellant alone. Consequently, as appellant argues, the weight of Arceneaux=s testimony might have significantly influenced the jury=s deliberations.

The State answered appellant=s motion for new trial with an affidavit of appellant=s trial counsel. The attorney contends in the affidavit that the first time he heard of Arceneaux was when appellant mentioned him immediately after Blunt=s trial testimony. According to counsel, he asked appellant for Arceneaux=s full name and SPN[2] so that he could contact him and investigate his potential testimony. However, as the attorney attests, when he asked appellant for the information the next morning when appellant arrived for trial, appellant responded that counsel should not contact Arceneaux because appellant didn=t want him involved. Despite these statements, appellant asserts that his attorney still had a responsibility to investigate this possible witness.

A criminal defense lawyer has a duty to make an independent investigation of the facts of a case, which includes seeking out and interviewing potential witnesses. Ex parte Welborn, 785 S.W.2d 391, 393 (Tex. Crim. App. 1990). A breach of the duty to investigate may result in a finding of ineffective assistance Awhere the result is that any viable defense available to the accused is not advanced.@ Ex parte Ybarra, 629 S.W.2d 943, 946 (Tex. Crim. App. 1982). In defining the duty to investigate, the United States Supreme Court has stated that Acounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel=s judgments.@ Strickland, 466 U.S. at 691.

In the present case, the record demonstrates that appellant=s trial counsel offered to contact appellant=s suggested witness upon receiving his full name and contact information from appellant. However, not only did appellant fail to deliver this information as his attorney requested, he explicitly told Duer not to contact him. Appellant=s own affidavit does not refute this assertion.

Appellant argues that it was unreasonable for appellant=s trial counsel not to investigate Arceneaux. Appellant asserts that the only apparent difference from the evidence admitted in his first trial from that admitted in his second was the addition of Blunt=s testimony in the second trial. Consequently, appellant argues his trial counsel should have independently investigated the significance of the additional witness. However, the appellate record does not include the transcript of appellant=s first trial, so we can cannot confirm or consider this point. See Tex. Rule App. P. 34.1; see also Kaman v. State, 923 S.W.2d 129, 131 (Tex. App.CHouston [1st Dist.] 1996, no pet.) (appeals court could not consider indictment not included within appellate record while reviewing denial of pretrial writ of habeas corpus). Further, appellant argues that his trial counsel should have been able to discover the State=s witnesses before trial[3] and investigate them fully for the purpose of anticipating possible rebuttal witnesses. However, these assertions are irrelevant in light of the fact that appellant cannot point to evidence in the record demonstrating any reason for his trial counsel=s decision, except that appellant himself told his trial counsel not to involve Arceneaux.

Applying, as we must, a Aheavy measure of deference@ to appellant=s trial counsel=s decision not to call or investigate a potential witness whom appellant had instructed counsel not to contact, we hold that the record demonstrates his actions were reasonable under the circumstances. See Ex Parte Miller, No. 14-07-00532-CR, 2008 WL 1795053, at *4 (Tex. App.CHouston [14th Dist.] Apr. 22, 2008, pet. ref=d) (mem. op., not designated for publication); see also Taylor v. State, No. 01-06-00971-CR, 2008 WL 597271, at *4 (Tex. App.CHouston [1st Dist.] Mar. 6, 2008, pet. ref=d) (mem. op., not designated for publication) (trial counsel=s decision not to call or investigate potential defense witnesses was reasonable in light of defendant=s express instructions not to involve the witnesses in his case). We overrule appellant=s sole issue.

CONCLUSION

Having overruled appellant=s sole issue on appeal, we affirm the trial court=s judgment.

/s/ Jeff Brown

Justice

Judgment rendered and Memorandum Opinion filed December 18, 2008.

Panel consists of Chief Justice Hedges and Justices Guzman and Brown.

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

[1] At trial, Dr. Teri Turner, an associate professor of pediatrics at Baylor College of Medicine, and the pediatrician who examined and diagnosed complainant, testified that genital herpes is either contracted from genital-to-genital contact, or oral-to-genital contact.

[2] An SPN is the unique, case-specific identification number issued to detainees when processed for custody purposes by the county jail.

[3] The appellate record in this case does contain a trial court-approved discovery order, but it does not specifically identify the State=s anticipated witnesses.