Robin Hartwell McDonald v. The State of Texas--Appeal from 52nd District Court of Coryell County

McDonald v. State /**/

IN THE

TENTH COURT OF APPEALS

 

No. 10-92-041-CR

 

ROBIN HARTWELL McDONALD,

Appellant

v.

 

THE STATE OF TEXAS,

Appellee

 

From the 52nd District Court

Coryell County, Texas

Trial Court # 11,983

 

OPINION ON PETITION FOR DISCRETIONARY REVIEW

 

Robin Hartwell McDonald was convicted by a jury of the offense of aggravated sexual assault and, on April 25, 1990, sentenced to not less than five nor more than fifteen years in prison. He was represented at trial by Tommy Sheffield, an attorney who offices in Copperas Cove. Sheffield did not perfect an appeal. On July 27, McDonald made a motion for an out-of-time appeal. On August 8, the court determined that he was indigent and in need of counsel and appointed counsel to represent him on appeal. On November 7, McDonald filed an application for a post-conviction writ of habeas corpus, and on July 26, 1991, the court held an evidentiary hearing on the motion. The court made findings of fact and recommended that McDonald be granted an out-of-time appeal.

On February 5, 1992, the Court of Criminal Appeals determined that McDonald was entitled to an out-of-time appeal from his original conviction and remanded the cause to the trial court to permit the filing of a notice of appeal.

In three points of error, McDonald asserts that he was denied the effective assistance of counsel in violation of the United States and Texas Constitutions and in violation of article 1.05 of the Code of Criminal Procedure. In a final point, he asserts that the court abused its discretion in admitting evidence of extraneous conduct in violation of Rules 401, 402, and 404(b) of the Rules of Criminal Evidence. We will affirm the judgment.

THE PRETRIAL HEARING

A pretrial hearing was held in April 1990. At the hearing, the court considered McDonald's pretrial motions: an application for probation and a motion to have the jury determine punishment, neither requiring action by the court; a motion for discovery of the victim's statements, statements of police officers and witnesses, medical reports and notes, and statements of other witnesses, which the court essentially denied; a motion seeking discovery of any statements of the defendant, statements of police officers and witnesses, evidentiary items, the prior criminal record of the defendant, and impeaching evidence, portions of which were granted by the court; a motion to test the competency of the child's statements to be offered by the designated outcry witness under article 38.072 of the Code of Criminal Procedure, which was granted by the court; a motion in limine seeking to exclude testimony about his prior alcohol use, violence towards his ex-wife, and other sexual misconduct in the presence of the child-complainant, which was granted by the court as a motion in limine; a motion for exculpatory evidence, which was granted; a motion to suppress the testimony of the outcry witness for lack of notice, which the court essentially denied; a motion seeking the court's determination of the competency of the child to testify at trial and to suppress inadmissible hearsay testimony of the child, which was granted; a motion to submit the child to a psychological evaluation to determine her competency, which Sheffield withdrew; a motion in limine to exclude certain medical and expert reports, comments on the admissibility of the reports, and any offer of a report known to be inadmissible, which was essentially agreed to; a motion to exclude all extraneous conduct and acts; a motion in limine to exclude the child's mother and grandmother from the courtroom, which the court deferred until the time of trial; and a motion in limine to exclude evidence of polygraph tests, which was granted.

During the presentation of the pretrial motions, the State informed the court about tape recordings in its possession, of the extraneous offenses it intended to offer, and of other items of evidence applicable to the motions. The record also reveals that Sheffield took advantage of the district attorney's "open file" policy before trial. Just prior to trial, the State announced that it would designate the child's mother as the outcry witness.

THE TRIAL

The trial began on April 23, 1990. To evaluate Sheffield's effectiveness, we must examine his conduct as well as the evidence presented by both parties.

The State's Witnesses

The State presented seven witnesses.

the child's mother

Theresa Stephens testified that she and McDonald had been married and had a child who was four years of age; that they were divorced in August 1989; and that on July 2, after his weekend visitation, she noticed that the child had abrasions between her legs. Although she asked the child several times how she got the marks, she got no definitive response. She said that she had seen similar marks on two previous occasions and that McDonald had told her they were from activities at "the lake." Later, on July 4, the child said she could not say how she got the marks but, after Theresa pressed the issue, said that they were caused by "daddy's whiskers." Theresa said that McDonald had a mustache at the time and removed it later after she accused him. Theresa further testified that the child told her that McDonald "put his finger in her popo," which she said is the word used by the child to refer to her vagina, and that he "put his tongue in her popo." She also said that the child told her that McDonald "played with his tail" his penis while he did that. On July 5 she took the child to see Dr. Douty at Scott and White Clinic and then to the Department of Human Services. She identified a photograph of the child taken the same day by a Department of Human Services worker. Later, Theresa made a complaint to the Copperas Cove Police Department and arranged for her mother to take the child to the department's offices. She said that, after the incident, the child had nightmares and saw a psychologist.

During the direct examination, Sheffield took Theresa on voir-dire examination about the photograph, objected to the narrative form of the witness's presentation, and made one hearsay objection. On cross-examination, he questioned her about the location of the abrasions, whether a mustache could have made them, the periods of time when McDonald did and did not have a mustache and the relationship of those periods to significant events surrounding the assault, her contacts with various professionals involved in the case, and contacts between McDonald and the child after the date of the indictment. He also questioned her further about the number of occasions on which she observed the abrasions and whether there could have been other causes. On redirect examination, Sheffield objected to questions asking for speculation, for hearsay, and for legal opinions and made one objection directed to a leading question.

family practitioner

The State's second witness was Dr. Debrah Douty of the Scott and White Family Clinic in Killeen. Prior to permitting her to testify, the court heard Sheffield's motion to exclude from her testimony any statement that the child may have made to her, arguing that article 38.072 of the Code of Criminal Procedure, the outcry statute, supersedes Rule 803 of the Rules of Criminal Evidence that allows medical experts to testify to statements that are made for the purpose of medical diagnosis and treatment. See Tex. Code Crim. Proc. Ann. art. 38.072 (Vernon Supp. 1993); Tex. R. Crim. Evid. 803(4). The court overruled the objection.

Dr. Douty testified about her qualifications and said that she had seen an average of one sexual-abuse patient per month. She said she had seen the child three times, including the initial visit on July 5. After describing the method used to examine a young female, she said that her examination of the child revealed a "small area . . . of redness or erythema . . . very superficial abrasions, like a scraping sort of lesion." She described the examination as revealing more than was shown by the photograph taken on the same day. She further said that, although it is extremely important for the child's comfort for the mother to be present, it is preferable to limit the mother's comments in front of the child as much as possible. She followed that procedure. The doctor testified that the child responded "yes" when asked if "anyone besides mommy and the doctor touched you down there?" Also, the child responded "her daddy had" when asked, "Who has done that?" She said that the child further told her that "her daddy had put his finger inside of her" and that no one else had ever done that. The doctor said that the child told her again later that "daddy touched her . . . had put his face down there and . . . had put his mouth down there." When asked if the abrasions were of the type that she would expect to see made by a man's unshaven face or whiskers or mustache, the doctor described them as "consistent, it wouldn't be the only way but it would be one way." She also said that the location of the abrasions was consistent with a man's mouth, chin, or upper lip and that the child was "candid, and very uninhibited and not terribly distraught about giving me the answers she gave me" demeanor consistent with a child of that age who has been abused.

Sheffield did not make further objections during the direct examination. He cross-examined the doctor about the extent of the abrasions, about the "impression" noted in her records, about the susceptibility of a child to suggestions from adults about such events, and about other activities that could have caused the abrasions. The cross-examination revealed that the doctor's examination raised only a "suspicion" of a sexual assault.

copperas cove police detective

Sergeant Yvone Parker testified that, as a member of the Youth Services Division, she investigates crimes committed by and against children and that she had received over four- hundred hours of specialized training in child-abuse investigations. She said that, after the police department received a referral about the incident on July 12 from the Department of Human Services, she arranged to interview the child on July 17. At the interview, which the child's grandmother attended, she used anatomically correct dolls to determine the child's level of understanding of body parts a standard procedure with children of this child's age. She said that the dolls also assist a child in demonstrating what might have happened and that the child used the male doll to tell what part had touched her. After her interview with the child, Parker interviewed McDonald, who told her that he did not know how the abrasions were caused but that they were possibly the result of a swimsuit. Sheffield did not object during Parker's direct testimony.

Out of the jury's presence, the court heard Sheffield's objections under article 38.072 of the Code of Criminal Procedure to any testimony from Sgt. Parker about statements that the child had made to her. See Tex. Code Crim. Proc. Ann. art. 38.072. The State withdrew its offer after Sheffield argued that there were inconsistencies in the testimony and that the lapse of time between the event and the statement should be taken into account.

After other witnesses had testified, Parker was recalled to testify that she had arranged a meeting shortly before trial between the child, her mother, and the prosecutor to acquaint the child with the physical layout of the courtroom. She said that the prosecutor placed the child in the witness stand, showed her the judge's bench, explained to her where in the courtroom the participants would be seated, and told her that she would have to talk into a microphone. The prosecutor then asked the child questions, and she played with the dolls. Parker said that the child answered the questions "exactly the way she had when I interviewed her, the first time" and "was a bit more demonstrative with the dolls than she had been at that time."

Sheffield did not object during Parker's second appearance on the witness stand and, on cross-examination, inquired only about other times that the prosecutor and the child may have been in the courtroom together, that the child had seen the prosecutor, or that she had seen the child. Parker said that it was their only courtroom visit, that she had no knowledge of any other meeting between the child and the prosecutor, and that she had not seen the child in over a year.

the child's aunt

Tracey Mohlness, Theresa's sister, testified that Theresa was upset hysterical when she called July 4 to tell her that McDonald had been abusing the child. Sheffield neither objected to Mohlness' testimony nor cross-examined her.

the child

Prior to the child's entering the courtroom, Sheffield objected to all of her testimony on the grounds that the court had not qualified her as a witness outside of the presence of the jury. The court overruled the objection and permitted the child's grandmother to accompany her to the witness stand. After she was seated, the court asked her age, whether she knew what it was to tell a lie, and whether she intended to tell the truth. The child held up three fingers, said she would be four "in July," and answered "yes" to the latter two questions. When asked if she knew "what happens to little boys and girls that lie and don't tell the truth," she responded, "[McDonald] stuck his finger up in my --." After she said that she knew what happens and that she would tell the truth, the court held that she was qualified as a witness. Sheffield raised no objection before the jury about the child's competency as a witness.

The child testified that McDonald's "baby beard" caused the abrasions on her legs. Using the dolls, she demonstrated what had occurred and stated that McDonald "put his tail on me" and touched her "popo" with his mouth.

Sheffield cross-examined her about the number of times she had seen the prosecutor, whether they had rehearsed her testimony in the courtroom, about the names she used to refer to various body parts, and about what Sgt. Parker and her mother had discussed with her.

clinical psychologist

Bill Kneip testified that he had been a counselor since 1974, that from 1974 until 1988 he was employed by Mental Health-Mental Retardation, and that for the last one and one-half years he had been engaged full time as a clinical psychologist in Temple. He began seeing the child in November 1989. He said that she suffered "a great deal of anxiety, which manifests itself in very frequent nightmares" and that she was "very afraid of her father because of the bad things that he did to her, to basically use her words." He said that, although play therapy generally allows children to quickly adapt to the therapy environment, during nine visits the child would only go into the "play area room" with him on one occasion that at all other times she "wanted mama to come in and join us." He also said that a child's ability to remember things over a long period is less than that of an adult, but that even a very young child could remember an intense experience several months later.

During direct examination, Sheffield objected to one question as calling for speculation about the child's ability to recall events, and the question was withdrawn. On cross-examination, he questioned Kneip about the range of his experience, about the effects of a divorce on a small child and, in particular, this child, and about the effect that an adult in a trusting relationship can have on a child's version of events. Kneip said that he was certain about the nightmares but did not know "all the reasons behind those nightmares, all the things that could have been leading into those." He also said that it is possible that a child could be mistaken about events and start believing the mistaken version.

Motion for Directed Verdict

After the State rested, Sheffield moved for a directed verdict, which was overruled.

The Defense Witnesses

Prior to calling his first witness, Sheffield advised the court that some of the testimony he planned to elicit might violate a State's motion in limine that the court had granted. After a discussion about the scope of the motion, Sheffield made his opening statement. He told the jury that he would show that McDonald did not have a beard or mustache, that there were no marks on the child on the prior occasions that Theresa testified about, and that the allegations in the indictment were wrong.

the babysitter

Tonya Barker testified that she had been Theresa's babysitter for about four months. She could not recall having seen McDonald with any kind of mustache or growth of beard between May 1989 and the trial date. She also said that she attended a birthday party at a McDonald's restaurant on July 2, 1989, and that after the party Theresa and the child came to her home. She changed the child from a dress to shorts and did not see any red marks on the child's legs. Shown the photograph that Theresa had identified, Tonya said that she did not see marks like those on the child on July 2. During cross-examination Sheffield objected to a prosecutor's question that called for speculation, and the question was withdrawn. The remaining cross-examination centered on whether she was really in a position to see any marks on the child's legs and whether she had discussed her testimony with others. On redirect examination, Sheffield asked questions designed to rehabilitate the witness.

the babysitter's mother

Margaret Barker, Tonya's mother, testified about the birthday party and the child's visit to her home afterwards. She said the child stayed until about 7:30 or 8:00 p.m., that the child and her youngest daughter "[ran] around in the living room with their panties on," and that, although she was not looking for marks on the child, she did not "recognize anything [on the child] that might be pertinent." She said that the child was in her home for two to two and one-half hours and that, if she had noticed anything, she probably would have commented on it. Margaret also said that she did not see anything on the child like the marks shown in the photograph. On cross-examination, she said that she first met McDonald about three weeks before the trial and that it was a friend of his that asked her about the events at her home.

family friend

Sharron Ellsworth testified that she was a friend of Theresa's from high school and that they had stayed in contact after that and became "pretty good friends." She said that they became better friends after Theresa began dating McDonald and they "kinda hung around together." She said that Theresa was upset on the Friday before July 2 Theresa's divorce from McDonald having not yet been granted and told her that "she would like to get [McDonald] out of their lives and that she would do anything to get [McDonald] to leave them alone." Early in July Theresa told her that she was going to file "child molestation charges" against McDonald and that she did not want Ellsworth to tell anyone because she wanted to "spring it on him." She further said that she had seen McDonald and the child together on one of the prior occasions Theresa testified about a swimming party at her home and that the child was very close to McDonald and did not want to leave his side.

After a recess to allow him to talk to Theresa, the prosecutor advised the court that he wanted to question Ellsworth about "possible violence or threatened violence" by McDonald during the marriage. Sheffield objected on relevancy grounds. The court ruled that it was relevant to explain why Theresa might not have wanted Ellsworth to tell anyone about her intent to file charges against McDonald. On cross-examination, Ellsworth testified further about her relationship with the McDonalds and about a birthday party for her daughter at her home on July 22. Theresa and the child attended the party, and when McDonald arrived, Ellsworth asked him to leave so that the party would not be spoiled. The prosecutor cross-examined her about whether Theresa was afraid of McDonald which she denied and about whether Theresa had told her that McDonald had hit her during their marriage which she confirmed and explained. She related, without objection, statements made to her by Theresa about the assault, about statements that the child had made to Theresa, and about the experts' findings. She said that she did not believe that McDonald was guilty.

On redirect and recross, she was asked when and how often she had seen McDonald unshaven or with a mustache.

mcdonald's co-worker

James Carpenter testified that he and McDonald worked together at Barron Signs in Killeen, that he had hired McDonald on March 26, 1989, that McDonald had a mustache at some time before he was hired but had shaved it off, and that he did not have a mustache at any time during the four months he worked at Barron Signs. He further testified that he and his wife had gone to a rodeo with McDonald and the child on July 1 and that McDonald and the child "got along real well." On cross-examination Carpenter said that he and McDonald "had a falling out at work" and did not see each other very often.

co-worker's wife

Cindy Carpenter testified that at the rodeo on July 1 she took the child to the restroom three times. She said that the child wanted McDonald to take her and was crying because he could not. Because he could not enter the ladies restroom, Cindy "just went ahead and took her in there." On cross-examination, Cindy said that she saw the child on July 2 when McDonald brought her to Cindy's home but was not questioned further about seeing her that day.

a friend

David Bass, who worked at Lone Star Gas Company and was a friend of both Theresa and McDonald, said Theresa told him about two weeks before the charges were filed that "she would do anything that it took to--for [McDonald] to sign those [divorce] papers." He said that Theresa was "pretty hot, she was high strung," and that she told him later that "she really didn't know if [McDonald] did this or not, she really didn't know." During cross-examination he testified, without objection, that Theresa had told him that the child said McDonald did it. He was also questioned about the timing of Theresa's statements to him and about his friendship with McDonald.

The State's Rebuttal

After the defense rested, the State announced its intent to call witnesses to prove an incident between McDonald and the child that the State believed had occurred about two years earlier. The witnesses were McDonald's father, who had acted as Sheffield's investigator in the case, and a medical professional who had been hired by the defense but not called to testify. Sheffield objected to the testimony on the grounds of the attorney-client privilege and that the act constituted an inadmissible extraneous offense. After hearing arguments, the court sustained the objections. Sheffield also objected to further testimony from Sgt. Parker about the child's statements on grounds that the testimony was hearsay and would violate article 38.072 of the Code of Criminal Procedure and the confrontations clauses of both the state and federal constitutions. Without calling additional witnesses, the State closed.

The Charge

Sheffield reminded the court that an instruction about McDonald's right not to testify was omitted from the proposed charge, but made no other objections.

The Arguments

After the State's opening argument, Sheffield reminded the jury of the burden of proof, of the reasonable-doubt requirement, and of the presumption of innocence. He argued, by reminding the jury of Dr. Douty's testimony, that the child could have gotten the abrasions in another way. He discussed the child's credibility and the witnesses who said that McDonald did not have a mustache at any pertinent time. He discussed Theresa's motive for accusing McDonald and recalled for the jury that Kneip said that the trauma of the divorce could have contributed to the child's nightmares. He closed by reminding the jury of the magnitude of their responsibility and urged them to find that the State had not proved its case beyond a reasonable doubt.

The Punishment Phase

After the jury returned a verdict of guilty, the trial proceeded to the punishment phase. The State's only evidence was a re-offer of all of the evidence from the guilt-innocence phase of the trial. Sheffield called five witnesses, including two who had previously testified during the trial.

mcdonald's pastor

Reverend Robert Vickery, priest in charge of the St. Christopher's Episcopalian Church in Killeen, testified that McDonald had been a member of and regularly attended his church since the preceding summer and that he was "impressed with [McDonald's] sincerity of wrestling with some things." He said that he thought McDonald was a good candidate for probation, that he knew McDonald was receiving counseling, that he had learned that he was about to marry another member of the congregation, and that McDonald had become part of the church's "extended family" a group that met twice a month.

During cross-examination the priest said that, if McDonald were put on probation, he would recommend continued psychological therapy. He admitted that he had heard of McDonald's use of alcohol and an altercation at a club some months before. When the prosecutor asked about an argument at McDonald's father's home on Christmas Eve of 1990, also involving Theresa and the child, Sheffield objected but did not specify the basis for the objection, which the court overruled.

mcdonald's fiancé

Camille Mansfield, McDonald's "girlfriend and fiancé," testified that they planned to marry about a month later. She said that Sheffield had gone over the conditions of probation with her and that she sincerely believed that he could meet those conditions. She said that McDonald had had only an occasional beer or two since Christmas and agreed that they wanted to have a "decent and respectful life."

a friend

David Bass was recalled to testify. He said he was with McDonald on Christmas Eve. They went by McDonald's father's home and, after knocking on the door, were told to leave by his stepmother. Bass characterized the dispute as primarily between himself and McDonald's father, although he said that the stepmother was "pretty irate." He described McDonald as a "skilled worker" who always "kept busy."

During cross-examination about the Christmas Eve incident, Bass said that McDonald only said, "Why do I have to leave, why do I have to leave, I just want to speak to my father." He said that they did not see Theresa or the child, and that McDonald's father told Bass "it would be in our best interest to leave and why." "[S]o we did."

mcdonald's landlady

Doris Bearden testified that McDonald had lived in her home since the first of August, that he told her that he had been indicted, that she was "impressed by his openness and honesty," and that she had found him to be "totally trustworthy and dependable and honest." She said that he accepted her invitation to attend her church and had attended almost every Sunday and Wednesday. She said that Sheffield had explained the conditions of probation to her and she felt that McDonald was a good candidate for probation.

copperas cove police detective

Sergeant Yvone Parker was recalled and testified that McDonald had never been convicted of a felony and would be eligible for probation. On cross-examination, she said that her knowledge was based solely on information that "came back on the computer." She said that she had no personal knowledge of his character other than from this case. After being asked if she had an opinion of McDonald's reputation for being a peaceful, law-abiding citizen, she said that he had a reputation of having a quick temper. Sheffield, after the prosecutor offered an opportunity to object, said "if she feels that he's got a bad reputation for a temper, well, I can live with that." Parker said that she could not say if McDonald was "a good or bad person" and repeated her assertion that he had a quick temper.

On redirect examination, Parker said that she had checked the N.C.I.C. and T.C.I.C. computers and the records of her department and found no felony convictions.

After both parties closed and the court charged the jury, final arguments were given. The jury returned a verdict of fifteen years in prison.

HABEAS CORPUS HEARING

At the hearing on the Application for Writ of Habeas Corpus, Sheffield testified that he had represented McDonald in the divorce case. He said he did the legal research that he felt was necessary to determine the applicable law. After McDonald's father quit as the investigator "right in the middle of this deal," Sheffield used Richard Barber to continue the investigation. He consulted Dr. Eugene Waters for a mental-health evaluation, but determined that he could not use Dr. Waters as a witness because he would be subject to cross-examination about another offense that McDonald had admitted to him. He said that McDonald prepared a "time line" or sequence of events, that they spent "hours and hours" trying to anticipate the testimony, and that they jointly decided what witnesses to call on McDonald's behalf. He acknowledged that McDonald had brought him a tape recording not used at trial of the child saying that McDonald never did anything bad to her, that he never "put his tail on [her]," that he never licked her between the legs, and that the marks were a result of her scratching herself when she fell. Sheffield said that McDonald decided not to testify after he advised him that his attitude and nerves were such that he could not withstand cross-examination and that the State knew about the offense that McDonald had admitted to Dr. Waters. Sheffield said that he was "more than adequately prepared" for McDonald's trial.

Lynn Malone, a board-certified criminal-trial lawyer, testified as an expert witness. Malone said that he had reviewed the statement of facts and pleadings from the trial. He said that, in his opinion, Sheffield was ineffective in preparing the child's babysitter and her mother, two critical witnesses, for the testimony they would give, in failing to have the voir- dire examination of the jury panel recorded, in failing to object to statements by third parties about what the child said and did, in failing to determine which of two witness was the outcry witness, in failing to attempt to exclude evidence of another offense that had come to the State's attention through a violation of the attorney-client privilege, in failing to use a tape recording of the child to impeach the child, and in failing to perfect an appeal. He also opined that the defense would have benefitted from McDonald's own testimony, but conceded that it was a matter of trial strategy.

Thirteen individuals who were McDonald's friends, some of whom had seen McDonald and his daughter during the weekend of the offense, testified either that they were not called as witnesses or that they were called to testify without adequate preparation. One who was not called as a witness said he would have testified that McDonald's relationship with his ex-wife was "pretty bitter." Another, who did testify at trial, said that Theresa was "hateful" toward McDonald to the point that she might have made an unfounded accusation against him.

The prosecutor testified that he provided Sheffield access to the file before trial, that Sheffield engaged in plea negotiations and made pretrial motions and presented them for rulings, that he objected to evidence and made "informal" objection by which he made his position about the admissibility of evidence known to the State, that there were "hotly contested issues" about evidence, and that several witnesses were called on McDonald's behalf. He said that Sheffield presented a "pretty good factual defense, as opposed to a technical defense" that his "impression" was that the attorney contested the case and looked out for McDonald's rights.

INEFFECTIVE ASSISTANCE OF COUNSEL

On appeal, McDonald asserts three broad areas of deficiency on the part of trial counsel: failure to investigate, failure to prepare for trial, and ineffective trial conduct. We will examine each under the recognized standard of review. Although the Court of Criminal Appeals found that Sheffield provided "no assistance" in perfecting an appeal for McDonald, we do not address that issue because the Court's grant of an out-of-time appeal has resulted in McDonald's receiving the benefit of this appeal.

Due process and the right to a fair trial include a guarantee of assistance of counsel. Thomas v. State, 550 S.W.2d 65, 67 (Tex. Crim. App. 1977). To prevail on his claim of ineffective assistance of counsel, however, McDonald must meet the two-pronged test used to analyze claims of ineffective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Stafford v. State, 813 S.W.2d 503, 505-06 (Tex. Crim. App. 1991); Cooke v. State, 735 S.W.2d 928, 929 (Tex. App. Houston [14th Dist.] 1987, pet. ref'd). First, the appellant must show that his trial counsel's performance was so deficient, because he made errors of such a serious nature, that he was not functioning as the "counsel" guaranteed by the Sixth Amendment. Id. Second, he must demonstrate that the deficient performance so prejudiced his defense that he was deprived of a fair trial, i.e., there is a reasonable probability that, but for his counsel's unprofessional errors, the result of the proceeding would have been different. Id. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Jimenez v. State, 804 S.W.2d 334, 338 (Tex. App. San Antonio 1991, pet. ref'd).

A claim of ineffective assistance of counsel must be determined upon the particular facts and circumstances of each individual case. Id. A strong presumption exists that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Stafford, 813 S.W.2d at 506. Allegations of ineffective assistance of counsel will be sustained only if they are firmly founded. Jimenez, 804 S.W.2d at 338. That another attorney might have pursued a different course of action or tried the case differently will not support a finding of ineffective assistance of counsel. Id.

A different standard reasonably effective assistance is applied in the context of the punishment stage. Ex parte Duffy, 607 S.W.2d 507, 513 (Tex. Crim. App. 1980). Craig v. State recently reaffirmed the Duffy standard for claims of ineffective assistance of counsel during the punishment phase. Craig v. State, 825 S.W.2d 128, 129-30 (Tex. Crim. App. 1992).

The Investigation

One of counsel's duties is to investigate the facts that resulted in the accusation. Duffy, 607 S.W.2d at 516-17. Here, McDonald alleges that his counsel failed to:

" conduct discovery in a contemporaneous divorce suit to identify evidence and interview witnesses about the criminal accusation;

" interview witnesses whose names, addresses and telephone numbers McDonald had furnished;

" interview any of the prosecution's witnesses;

" contact a source of information and expert-witness referrals; and

" review and understand the applicable law.

At the hearing on McDonald's petition for a writ of habeas corpus, Sheffield testified that he interviewed all of the witnesses that he and McDonald agreed were pertinent to the case. He testified that he had full access to the district attorney's file and that one-hundred hours were spent by two investigators on the criminal accusations. He had consulted an expert witness, Dr. Eugene Waters, but elected not to use him because of other damaging testimony that the State might elicit from him. The pretrial and trial records reflect that Sheffield successfully argued the law about outcry witnesses, the attorney-client privilege, hearsay, and other evidentiary rules and was thereby able to exclude potentially damaging testimony. Thus, from the record, given the strong presumption that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment, we are unable to say that McDonald's complaints about Sheffield's investigation are firmly founded. See Stafford, 813 S.W.2d at 506; Jimenez, 804 S.W.2d at 338.

Preparation for Trial

Citing three cases Ex parte Guzmon, 730 S.W.2d 724 (Tex. Crim. App. 1987); Passmore v. State, 617 S.W.2d 682 (Tex. Crim. App. [Panel Op.] 1981); Sanders v. State, 715 S.W.2d 771 (Tex. App. Tyler 1986, no pet.) McDonald asserts that Sheffield failed to properly prepare for trial by:

" failing to interview and prepare critical defense witnesses;

" failing to obtain rulings on substantive pretrial motions;

" failing to request that the State designate a single outcry witness when there was a question about which of two witnesses it might be;

" failing to protect McDonald from evidence of an extraneous sexual offense discovered by a defense psychiatrist and "inexplicably" revealed to the State.

Sheffield testified that he had complete access to the district attorney's file but that he did not interview Theresa or the child because he did not want to "stir the temper of the trial." The record shows that Sheffield filed substantive pretrial motions, presented them to the court, made legal arguments about them, and obtained rulings. It further shows that the State was limited to a single outcry witness and that Sheffield was successful in preventing the State from questioning other witnesses about McDonald's statements. Also, the alleged assault that McDonald reported to Dr. Waters was never admitted into evidence. Thus, from the record, given the strong presumption that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment, we are unable to say that McDonald's complaints about Sheffield's pretrial preparation are firmly founded. See Stafford, 813 S.W.2d at 506; Jimenez, 804 S.W.2d at 338.

Trial Conduct

McDonald alleges numerous instances of ineffective trial conduct:

" failing to request that the voir-dire examination be recorded;

" failing to object to Dr. Douty's testimony about an extraneous offense;

" failing to object to the doctor's non-responsive statement that normal physical findings do not exclude sexual assault;

" failing to object to the doctor's bolstering of the child's accusation before the child was called as a witness;

" failing to object to the doctor's opinion of the child's mother's motive in seeking medical treatment for the child;

" failing to object to the mother's irrelevant and bolstering testimony that the child received financial assistance to obtain psychological treatment;

" failing to object to hearsay from Sgt. Parker;

" making unintelligible and improper objections under the outcry statute;

" failing to object to the court's qualification of the child as a witness;

" failing to object to the child's relating other sexual assaults;

" failing to object to hearsay during Kneip's testimony;

" allowing defense witnesses to repeat, without objection, Theresa's account of the child's statements;

" allowing the prosecutor to argue an extraneous sexual assault;

" failing to object to testimony about McDonald's hitting Theresa;

" failing to offer a tape recording that McDonald had made of the child denying the incident;

" failing to call witnesses to the continued good relationship between McDonald and the child after the incident;

" failing to obtain pretrial rulings on the admissibility of extraneous sexual offenses;

" withdrawing without filing a motion for new trial or otherwise protecting McDonald's rights;

" failing to prepare witnesses during the punishment phase; and

" failing to object to "have-you-heard" cross-examination of a character witness during the punishment phase.

From our recitation of the events at trial, it is apparent that Sheffield's defense of McDonald was based on the premise that he could demonstrate to the jury that there was a reasonable doubt about whether the sexual assault actually occurred. Although his performance can be characterized as deficient in some respects and certainly not as flawless, his efforts were directed towards establishing that premise. Sheffield attempted to establish, through cross-examination of the State's witnesses and presentation of defense witnesses, that Theresa had a motive to falsely accuse McDonald. He presented witnesses to refute the evidence of abrasions on the child's legs on July 2 and the assertion that the child was afraid of McDonald. He cross-examined the State's experts about whether the objective findings that they made could have had other causes. Although in some instances the child's hearsay statements were repeated without objection, Sheffield's actions resulted in limits on the State's ability to elicit such statements from other witnesses.

McDonald asserts that Sheffield's assistance was deficient when he failed to make use of a tape recording of the child to impeach her and failed to allow McDonald to testify on his own behalf. Sheffield testified that McDonald made the decision not to testify after Sheffield explained the hazards of cross-examination and the possible results of it based on McDonald's "attitude and nerves." Sheffield also testified that he did not utilize the tape recording. Although the record reveals that McDonald presented the tape to Sheffield, it does not reveal the details of the circumstances under which the recording was made. Assuming that the recording was admissible to impeach the child without McDonald's testimony to authenticate it, the only witness who could have identified the statements on the tape was the child herself. Whether and how to cross-examine a witness, particularly a child-witness, is a matter of trial strategy.

McDonald limits his complaint about Sheffield's performance during the punishment phase to allegations that he did not properly prepare witnesses and did not object to "have you heard" questions during cross-examination. Sheffield presented witnesses who attempted to portray McDonald's activities between the time of the incident and the trial in the best possible light. These included his fiancé, his pastor, and a friend. Their testimony appears to be fully developed. Sheffield also proved McDonald's eligibility for probation by calling an officer who had access to the state and national law enforcement computers to testify that McDonald had no prior felony convictions.

Conclusion

Based on our review of the entire record, given the strong presumption that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment, we are unable to say that McDonald's complaints about Sheffield are firmly founded. See id. Thus, we do not believe that McDonald has demonstrated that Sheffield's performance during the trial was so deficient, because he made errors of such a serious nature, that he was not functioning as the "counsel" guaranteed by the Sixth Amendment. See Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Stafford, 813 S.W.2d at 505-06. In making this assessment, we have considered the totality of the representation, rather than isolated acts or omissions of trial counsel, and have applied the test as of the time of the trial, not through hindsight. See Jimenez, 804 S.W.2d at 338. We also believe that Sheffield furnished "reasonably effective assistance" during the punishment phase of the trial. See Duffy, 607 S.W.2d at 513. We overrule points one, two, and three.

EVIDENTIARY POINT

McDonald's fourth and final point contends that the court erred in admitting evidence of extraneous conduct in violation of Rules 401, 402 and 404(b) of the Rules of Criminal Evidence. Although this case was tried before the decision in Montgomery v. State, we must apply its standards to the admission of evidence of extraneous conduct. See Montgomery v. State, 810 S.W.2d 372, 386-90 (Tex. Crim. App. 1991) (on rehearing).

When the State attempts to adduce evidence of "other crimes, wrongs, or acts," the defendant must object in a timely fashion to preserve his complaint for appeal. Id. at 387. After objection, the State must satisfy the court that the other crime, wrong, or act has relevance apart from its tendency to prove the defendant's character "to show that he acted in conformity therewith." Tex. R. Crim. Evid. 404(b). If the court determines that the evidence has no relevancy apart from character conformity, then the evidence is inadmissible. Montgomery, 810 S.W.2d at 387.

The State may, however, persuade the court that the evidence has relevance apart from character conformity, i.e., that an "other purpose" such as those set forth in Rule 404(b) will be served by admission of the evidence. Id. at 387-88; Tex. R. Crim Evid. 404(b). The court should honor a defendant's request that the purpose for which the evidence is offered be articulated for the record by the proponent and the reason for its admission be stated by the court. Montgomery, 810 S.W.2d at 387.

In Albrecht v. State, the Court listed the pre-rule factual contexts in which evidence of extraneous offenses might be admissible. Albrecht v. State, 486 S.W.2d 97, 100-01 (Tex. Crim. App. 1972) (needed to prove identity, intent or guilty knowledge, malice or state of mind, and motive "other purposes" now incorporated into Rule 404(b)). The Albrecht list is exemplary, not exclusive. Turner v. State, 754 S.W.2d 668, 672 (Tex. Crim. App. 1988). Likewise, the enumeration in Rule 404(b) is not an exclusive list of "other purposes" for which evidence of "other crimes, wrong, or acts" can be admitted, as demonstrated by the inclusion of the phrase "such as" in the rule. Tex. R. Crim. Evid. 404(b).

McDonald asserts that the court erred in allowing the State to elicit testimony from Ellsworth that he hit Theresa on one or more occasions. The State responds by pointing out that, because McDonald had questioned Ellsworth about Theresa's wanting to "spring" the charges on him, the testimony was properly admitted to offer another possible explanation for Theresa's request that Ellsworth not tell him. We agree with the State.

When the State informed the court that it intended to ask questions about "possible violence or threatened violence on his part," McDonald objected that such evidence was not relevant. The court determined that the evidence was "in rebuttal to the issue that was raised" and allowed Ellsworth to testify that Theresa told her McDonald had hit her because "she was in a car with a bunch of guys that had been known to do cocaine." After Ellsworth testified that Theresa's reason for filing charges of sexual assault against McDonald was to "get [him] out of their lives," the court properly found that the cross-examination was relevant to rebut that assertion, i.e., an "other purpose" under Rule 404(b). See Tex. R. Crim. Evid. 404(b). As we have stated, the trial occurred before the decision in Montgomery, but the court properly applied its rules. See id.; Montgomery, 810 S.W.2d at 386-90. We overrule point four.

AFFIRMANCE

Having determined that Sheffield did not render ineffective assistance of counsel and having found no error in the court's evidentiary ruling under Rule 404(b), we affirm the judgment.

 

BILL VANCE

Justice

Before Chief Justice Thomas

and Justice Vance

(Justice Cummings not participating)

Affirmed

Opinion delivered and filed June 10, 1993

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