Gerald Patrick Thomas v. The State of Texas--Appeal from 71st District Court of Harrison County

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-03-00115-CR

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GERALD THOMAS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 71st Judicial District Court

Harrison County, Texas

Trial Court No. 02-0190X

Before Morriss, C.J., Ross and Carter, JJ.

Opinion by Justice Carter

O P I N I O N

A jury found Gerald Thomas guilty of two counts of indecency with a child, four counts of sexual performance by a child, one count of sexual assault, and three counts of aggravated sexual assault. Thomas pled guilty to one count of possession of child pornography. The jury assessed Thomas' punishment at the maximum for each count. The sentences are consecutive under Section 3.03 of the Texas Penal Code and total 397 years' imprisonment. See Tex. Pen. Code Ann. 3.03 (Vernon 2003). Thomas appeals alleging he received ineffective assistance of counsel as his sole point of error. We affirm the judgment of the trial court.

Facts

Thomas was a pastor at the Good Shepard Lutheran Church in Marshall, Texas. While serving as a pastor, Thomas befriended several neighborhood boys. The charges in this case involved three boys: T.M., L.W., and J.S.

Thomas volunteered to be a mentor at a local school and was assigned to be T.M.'s mentor. For the first couple of weeks, they met at the school, but Thomas soon began inviting T.M. over to his house approximately twice a week. On one such occasion, Thomas performed oral sex on T.M. At the time of the abuse, T.M. was over fourteen years old but less than seventeen years old.

After T.M. moved to Oklahoma, Thomas befriended L.W. and J.S. Thomas made the acquaintance of L.W. during a community football game near the Good Shepard church. J.S. met Thomas through the mentoring program at school. Thomas began taking J.S., L.W., and K.D., L.W.'s six- or seven-year-old brother, out to eat, to the mall, and to movies. After a few months, Thomas started inviting the boys over to his house. During this time, Thomas exposed his privates in the presence of J.S. and L.W. J.S. and L.W. recorded a compact disk on Thomas' computer on which they exposed their genitals and committed sexual acts. Thomas made a brief appearance on the compact disk. The compact disk contained several different sections which had images of the two young boys. In some of the sections, the boys were just "clowning around" or engaging in "locker room" activity, but other sections contained sexual activity.

When J.S. got in trouble and was sentenced to a "boot camp" program in juvenile court, he started staying overnight at Thomas' house during the week because Thomas had agreed to provide him transportation to "boot camp." During this time, Thomas began ordering J.S. to masturbate in front of him and would fondle himself while watching. J.S. testified Thomas threatened to tell his parents he had stolen money, send him home, or to even kill him if he did not perform the acts on which Thomas insisted. During this time, J.S. would sleep in the same bed as Thomas. On three separate nights, Thomas penetrated J.S.'s anus with his penis. J.S. was thirteen years old at the time he was abused.

Thomas met a number of area youths who played basketball and computer games at the church. Besides the three victims, other youths were invited to Thomas' house. One of these boys, J.H., found a disk which contained a recording of J.S. and L.W. exposing their genitals and committing sexual acts. J.H. attempted to use the disk to blackmail Thomas into purchasing a truck for him. Although J.H. and Thomas test drove some vehicles, Thomas did not buy J.H. a truck. The Federal Bureau of Investigation (F.B.I.) became aware of the disks existence and seized it during a search of J.H.'s house. Eventually, several neighborhood boys informed the investigators Thomas had sexually abused them. Thomas was arrested and interviewed by the F.B.I. In his statement to the F.B.I., Thomas denied the sexual abuse and denied any possession of child pornography. He stated he had instructed the two boys who made the recording to stop recording the video and had erased the recording from his computer.

John Wiechman, an expert in computer forensic investigation, recovered thousands of files containing child pornography and new group messages regarding child pornography on Thomas' computer. In addition, four video files were found in which J.S. is seen, alone, talking to the camera and masturbating.

A federal grand jury was the first to indict Thomas. Eventually, Thomas pled guilty to the charge of possession of material involving sexual exploitation of minors. Thomas was sentenced in the United States District Court for the Eastern District of Texas to sixty months' imprisonment.

Nine days after the judgment in federal court, Thomas was indicted by a state grand jury in Harrison County on twelve counts of state offenses committed during his pattern of sexual abuse. Before the reading of the indictment, the State dropped one of the counts.

Ineffective Assistance of Counsel

Thomas contends he received ineffective assistance of counsel. Thomas alleges his trial counsel failed to suppress prejudicial evidence, failed to interview and subpoena potential defense witnesses, failed to use exculpatory polygraph evidence, and failed to effectively cross-examine the State's witnesses.

We note that direct appeal is often a poor vehicle in which to bring an ineffective assistance of counsel claim. Ineffective assistance of counsel claims "must be firmly founded in the record." Thompson v. State, 9 S.W.3d 808, 813 14 (Tex. Crim. App. 1999). Thomas filed a motion for new trial alleging ineffective assistance of counsel as one of its grounds. A verified affidavit was attached to the motion for new trial. Although Thomas requested a hearing, no hearing was held, and the motion was overruled by operation of law. On appeal, Thomas does not complain of the failure to hold a hearing. The only evidence supporting his ineffective assistance of counsel claim is the supporting affidavit to the motion for new trial. Direct appeals often present a limited record for review of the typical issues raised in an ineffective assistance point. Id. at 812; Phetvongkham v. State, 841 S.W.2d 928, 932 33 (Tex. App. Corpus Christi 1992, pet. ref'd, untimely filed). One way to get evidence of counsel's trial strategy or other matters in the direct appeal record is through a motion for new trial. Another way to develop a proper record is through a hearing in a habeas corpus collateral attack. See generally Tex. Code Crim. Proc. Ann. arts. 11.01 .65 (Vernon 1977 & Supp. 2004).

Both the Sixth Amendment and the Texas Constitution confer a right to effective representation by counsel. U.S. Const. amend. VI; Tex. Const. art. I, 10. If counsel's performance is ineffective, the conviction cannot stand. The Texas Court of Criminal Appeals has held that the Texas Constitution does not impose a higher standard than the Sixth Amendment. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994); Hernandez v. State, 726 S.W.2d 53, 56 57 (Tex. Crim. App. 1986). The Sixth Amendment standard, established by Strickland, requires a defendant alleging ineffective assistance of counsel to show that his or her counsel's performance at trial was deficient and that counsel's deficient performance prejudiced his or her defense. See Strickland v. Washington, 466 U.S. 668 (1984); see also Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002).

To satisfy the deficiency prong of the test, Thomas must prove by a preponderance of the evidence that his counsel's representation fell below the objective standard of professional norms. Bone, 77 S.W.3d at 833. There is a strong presumption that counsel's performance was adequate. Id. The reason for this presumption is that counsel at trial is better positioned to judge matters of strategy than an appellate court reviewing a cold record. An appellate court should not "conclude the challenged conduct constituted deficient performance unless the conduct was so outrageous that no competent attorney would have engaged in it." Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001). An ineffective assistance of counsel claim cannot be based on a difference of opinion concerning strategy. "[T]he defendant must prove, by a preponderance of the evidence, that there is . . . no plausible professional reason for a specific act or omission." Bone, 77 S.W.3d at 836.

First, Thomas contends his trial counsel failed to suppress prejudical evidence. The State argued at trial Thomas allowed the boys to smoke cigarettes and consume alcohol at his house. The State presented a theory Thomas had created a "playhouse" atmosphere. To further this theory, the State used three bottles of liquor as props to create the impression Thomas made alcohol freely available to the boys. Thomas claims his counsel's failure to suppress the bottles resulted in ineffective assistance. Thomas alleges the federal court suppressed the bottles based on its interpretation of state law. When claiming ineffective assistance of counsel for failure to attempt the suppression of evidence, an appellant must show that the motion to suppress would have been granted. Jackson v. State, 973 S.W.2d 954, 957 (Tex. Crim. App. 1998). A certified copy of the federal court's ruling was not introduced into evidence. The only evidence of the suppression are the self-serving statements made by the accused. Other than Thomas' statement that the bottles were "outside the scope of the search warrant," there is no indication in the record as to why the bottles were suppressed in the federal court or even if they were suppressed. "If counsel's reasons for his conduct do not appear in the record and there is at least the possibility that the conduct could have been legitimate trial strategy, we will defer to counsel's decisions and deny relief on an ineffective assistance claim on direct appeal." Ortiz v. State, 93 S.W.3d 79, 88 89 (Tex. Crim. App. 2002); see Murphy v. State, 112 S.W.3d 592, 601 (Tex. Crim. App. 2003). Thomas' trial counsel's decision concerning whether to challenge the admissibility of the evidence may have been a tactical decision. The bottles were not an essential element of any of the charges, and thus their effect is entirely tactical. This Court should not consider the wisdom of such a strategy, since ineffective assistance of counsel claims cannot be "built on retrospective speculation." Bone, 77 S.W.3d at 835. Thomas has not met his burden of proving that the failure to suppress the bottles fell below the objective standards of professional norms.

Next, Thomas contends his trial counsel was ineffective because he failed to interview, subpoena, or call witnesses on Thomas' behalf. Thomas alleges he provided his trial counsel with a list of fourteen witnesses and inquired several times as to the status of his investigation.

We note that the failure to call witnesses may be ineffective assistance of counsel. Butler v. State, 716 S.W.2d 48, 55 (Tex. Crim. App. 1986) (failure to present available alibi witnesses deemed ineffective assistance of counsel). However, such witnesses must be shown to be available and to actually benefit the defense. Id.; Bates v. State, 88 S.W.3d 724, 728 (Tex. App. Tyler 2002, pet. ref'd); Simms v. State, 848 S.W.2d 754, 758 (Tex. App. Houston [1st Dist.] 1993, pet. ref'd).

Thomas' argument fails because he failed to show that these potential witnesses were available and that their testimony would benefit his defense. The record indicates the defense counsel filed applications for subpoenas for several witnesses. As Thomas concedes in his affidavit, only one witness of the original four selected appeared to testify. Thomas concedes he chose not to call that witness. Of the other three witnesses, Thomas' affidavit makes clear that two would not benefit the defense. Thomas wanted to subpoena one of the witnesses concerning an assault J.S. had committed. However, evidence of juvenile adjudications and unadjudicated offenses are inadmissible to impeach a witness. See Tex. R. Evid. 608(b), 609(d). The second witness, a school counselor, had informed Thomas' lawyer she "wanted to see [Thomas] fry." Certainly, she does not appear to be a beneficial witness. The third witness, a friend of Thomas' from the seminary, did not appear for trial. Thomas alleges he "later learned from him that [the friend] never was served a subpoena, and was waiting for some direction from my attorney." The record contains no evidence as to what this witness' testimony would have been other than Thomas' vague assertion the friend could have testified "against one of the prosecution witnesses on my behalf" concerning Thomas' "helpful nature," "various ministry projects," and "friendship in the seminary." There is not sufficient evidence in the record regarding how this witness would have benefited Thomas' defense. Even if the witness had beneficial testimony, Thomas' trial counsel could have "reasonably determined that the potential benefit of additional witnesses or evidence was outweighed by the risk of unfavorable counter-testimony." Bone, 77 S.W.3d at 835.

Thomas also complains about the lack of expert witnesses. The affidavit indicates his trial counsel had questioned two psychologists and determined their testimony would not aid the defense. This determination is a matter of strategy, and we must defer to the judgment of trial counsel. Because there are plausible professional reasons for not calling additional witnesses, Thomas has not met his burden of showing that his trial counsel's performance was deficient.

Third, Thomas contends his trial counsel's failure to use exculpatory polygraph evidence rendered his assistance ineffective. Thomas' attorney at the federal proceedings arranged to have a polygraph examination conducted. At trial, the State attempted to call the polygraph operator as a witness. The State had intended to elicit testimony of admissions allegedly made by Thomas to the polygraph operator during a pre-test interview. Thomas asserted attorney-client privilege to prevent the operator from testifying. Thomas contends his attorney should have allowed the operator to testify, called his previous lawyer to rebut the operator, and introduced portions of the polygraph examination which were allegedly exculpatory. It is a reasonable conclusion counsel made the strategic decision that allowing the operator to testify as to Thomas' admissions would be undesirable.

Texas courts have long refused to permit the results of polygraph examinations to be admitted at trial, for either the defendant or the State. Robinson v. State, 550 S.W.2d 54, 59 (Tex. Crim. App. 1977); Long v. State, 10 S.W.3d 389, 398 (Tex. App. Texarkana 2000, pet. ref'd). The United States Supreme Court has held the exclusion of polygraph evidence did not unconstitutionally abridge the right of a defendant to present a defense because "[t]here is simply no consensus that polygraph evidence is reliable." See United States v. Scheffer, 523 U.S. 303, 309 (1998). The policy of the exclusion is based on the inherent unreliability of a polygraph examination and its tendency to be unduly persuasive. Marcum v. State, 983 S.W.2d 762, 765 (Tex. App. Houston [14th Dist.] 1998, no pet.). In rare circumstances, polygraph evidence erroneously admitted at trial has "opened the door" to further inadmissible evidence regarding polygraph results. Long, 10 S.W.3d at 399 (citing Lucas v. State, 479 S.W.2d 314, 315 (Tex. Crim. App. 1972); Patteson v. State, 633 S.W.2d 549, 552 (Tex. App. Houston [14th Dist.] 1982, no pet.)).

Even if the polygraph examination could have been admitted, it may not have been exculpatory. Thomas provides three questions and answers which may prove exculpatory concerning the charges of inducing or promoting a sexual performance by a child. According to Thomas, the relevant excerpts of the polygraph examination are as follows:

i.Did you ask [J.S.] to make a video of himself masturbating? (NO)

ii.Were you in the room when [J.S.] was making a video of himself? (NO)

iii.Did you ask [J.S.] to make a video for your pleasure? (NO)

While these statements may prove exculpatory concerning the sexual performance charge, the testimony of the polygraph operator as a whole may not be exculpatory concerning the other charges. We do not have any testimony as to admissions which Thomas may have made. According to the State, Thomas had made some admissions concerning the sexual assaults of J.S. and T.M.

The decision not to allow the testimony of the polygraph operator appears to be a tactical decision on the part of counsel. "[T]he defendant must prove, by a preponderance of the evidence, that there is . . . no plausible professional reason for a specific act or omission." Bone, 77 S.W.3d at 836. Counsel may have determined that the risk of incriminating testimony by the operator outweighed the potential exculpatory evidence. Because polygraph examinations are generally inadmissible and the testimony of the operator may have incriminated Thomas in other ways, Thomas has failed to prove there is no plausible professional reason for his counsel's conduct.

Last, Thomas alleges he received ineffective assistance of counsel due to his trial counsel's failure to effectively cross-examine the State's witnesses. We have reviewed the record and concluded trial counsel did a thorough and adequate cross-examination of the State's witnesses. Thomas argues his counsel should have asked the questions Thomas had provided him concerning the smoking by the boys at his house and x-rated movie. According to Thomas, the refusal to ask these questions renders his trial counsel's performance deficient. This argument focuses solely on matters of strategy. "Cross-examination is inherently risky, particularly in criminal cases where pre-trial discovery is more limited than in civil cases. A decision not to cross-examine a witness is often the result of wisdom acquired by experience in the combat of trial." Ryan v. State, 937 S.W.2d 93, 103 (Tex. App. Beaumont 1996, pet. ref'd) (quoting Dannhaus v. State, 928 S.W.2d 81, 88 (Tex. App. Houston [14th Dist.] 1996, pet. ref'd)). At times, it can be more effective to refrain from cross-examining a damaging witness to minimize the impact of the testimony. Id. In addition to failing to ask certain questions, Thomas complains his counsel was ineffective because he asked certain questions which allegedly bolstered the State's case by "referring to the boys' masturbating [as recorded] on the video, when they were not masturbating, merely exposing themselves." Counsel was attempting to impeach J.S. concerning his claim of being forced to masturbate due to threats made by Thomas. Counsel simply pointed out he was doing the "same thing" on the video without any apparent threats. We cannot consider the wisdom of counsel's strategy, since ineffective assistance of counsel claims cannot be "built on retrospective speculation." Bone, 77 S.W.3d at 833. Further, such a statement does not bolster the State's case, because under the statute, both exhibition of genitals and masturbation constitute sexual conduct. See Tex. Pen. Code Ann. 43.25 (Vernon Supp. 2004). We conclude that trial counsel's cross-examination did not fall below the objective standards of professional norms.

Further, claims of ineffective assistance of counsel must be evaluated based on the totality of the circumstances. This Court must be able to conclude that trial counsel's actions amounted to ineffective assistance of counsel based on the totality of the circumstances. The constitutional right to counsel does not mean errorless counsel. Ex parte Kunkle, 852 S.W.2d 499, 505 (Tex. Crim. App. 1993); Ex parte Welborn, 785 S.W.2d 391, 393 (Tex. Crim. App. 1990). In the totality of the circumstances, trial counsel's performance was not deficient.

The second prong of the ineffective assistance of counsel test is whether Thomas' trial was prejudiced by his trial counsel's alleged deficiency. Texas law requires Thomas to meet both prongs of Strickland. A defendant does not meet his or her burden by merely showing that an error had some conceivable effect on the outcome of the trial. Strickland, 466 U.S. at 693. The defendant must show a "reasonable probability" that, but for the error, the result of the trial would have been different. Id. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Thompson, 9 S.W.3d at 812. Because trial counsel's performance at trial was not deficient, there is no need to examine the second requirement of Strickland. However, Thomas has made no showing of how the deficient performance of trial counsel raises a reasonable probability the result of the trial would have been different. We do not find trial counsel rendered ineffective assistance to Thomas.

For the reasons stated, we affirm the judgment of the trial court.

Jack Carter

Justice

Date Submitted: February 26, 2004

Date Decided: March 3, 2004

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