Tyrone Taylor v. The State of Texas--Appeal from 159th District Court of Angelina County

OPINION HEADING PER CUR

NO. 12-05-00314-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

TYRONE TAYLOR, APPEAL FROM THE 159TH

APPELLANT

V. JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE ANGELINA COUNTY, TEXAS

 

MEMORANDUM OPINION

 

A jury convicted Appellant, Tyrone Taylor, of aggravated sexual assault. At the punishment hearing, the State introduced evidence that two months after the commission of this offense, Appellant burglarized the residence of a seventy year old woman whom he had threatened to kill. He also was currently under indictment for burglary of a habitation and sexual assault alleged to have occurred on November 28, 1995. The State also introduced evidence of Appellant s prior convictions for possession of marijuana, evading detention, and assault on a public servant. The trial court assessed Appellant s punishment at imprisonment for life. In three issues, Appellant complains that he was denied a public trial, that he was denied effective assistance of counsel, that the trial court erred in denying him another DNA test, and that the evidence was factually insufficient to support the jury s verdict. We affirm.

Background

 

On April 10, 2004 at around 7:30 p.m., the victim ( Jane Doe ) was at home talking on the telephone. She expected a visit from her daughter, so when she heard someone at the door, she unlocked and opened it. The person at the door asked to use the telephone. Jane Doe said no and tried to shut the door, but the intruder forced his way into the house, put his hand over her mouth, and said he had a gun and needed money. Appellant took money from the top of the bedroom table and asked about her purse. Jane Doe told him to take the purse and anything else and leave. The intruder laughed and said, [T]hat s not all I came after, you ve never had sex with a black man, huh. He pushed her on the bed, removed her underclothes, and attempted to penetrate her anally. Next, the assailant turned her over and told her he would kill her if she did not lie still. He then penetrated her vagina with his penis. The telephone rang, and the assailant fled shortly thereafter. Jane Doe immediately called the police and described her assailant as a black male, between five feet six inches to six feet tall, wearing a white t-shirt and gray sweat pants.

A sexual assault nurse examiner examined the victim. The record of that examination showed bruising and swelling of her vagina and a skin tear to her anal opening. Vaginal and anal swabs and smears were made, and pubic hair combings and saliva and blood samples were also taken. The swabs and smears showed semen and spermatozoa.

Jane Doe did not identify Appellant in any of the photo lineups she was shown. In her testimony at trial, however, she said that she was positive it was Appellant who sexually assaulted her.

DNA was obtained from Appellant s saliva sample and compared to the DNA from the sperm found on the vaginal swab. Robin Freeman, the DNA section supervisor, made the DNA analysis of the samples submitted. He testified that Appellant could not be excluded as a contributor and that the statistical probability of selecting an unrelated black person who could not be the contributor of the DNA profile was 1 in 19.93 million.

Appellant called two close friends who testified Appellant had been a pall bearer with them at a funeral and that Appellant had stayed at his aunt s for dinner until sometime after the assault was alleged to have occurred. Appellant also introduced an obituary notice that listed him as a pall bearer.

Denial of a Public Trial

In his first issue, Appellant contends the trial court erred in denying him a public trial.

Applicable Law

The Sixth Amendment to the Constitution of the United States and Article I, section 10 of the Texas Constitution both provide that in all criminal prosecutions, the accused shall have a speedy public trial. The Texas Code of Criminal Procedure mandates that the proceedings and trials in all courts shall be public. Tex. Code Crim. Proc. Ann. art. 1.24 (Vernon 2005). The Supreme Court of the United States has declared a four part test for determining whether an accused has been denied the right to a public trial:

(1) the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced;

(2) the closure must be no broader than necessary to protect that interest;

(3) the court must consider reasonable alternatives; and

(4) the court must make findings adequate to support the closure.

Waller v. Georgia, 467 U.S. 39, 48, 104 S. Ct. 2210, 2216, 81 L. Ed. 2d 31 (1984); see also United States v. Edwards, 303 F.3d 606, 616 (5th Cir. 2002), cert. denied, 537 U.S. 1192, 123 S. Ct. 1272, 154 L. Ed. 2d 1025 (2003).

Discussion

At the hearing on Appellant s motion for new trial, Demetrius Vinson testified that he attended the first day of the trial with three of his friends. During the first recess, he approached Appellant s attorney and told him that Appellant and he were both pall bearers at Chris Green s funeral on the day the crime occurred. According to Vinson, after the recess, a police officer asked him and his friend, Johnny Craddock, to step out of the courtroom. They were taken to an office where they were identified and searched. They were also accused of looking suspicious and making hand signals. Vinson explained that while the jury was out of the courtroom, he had greeted Appellant by asking Hey, what s up dog. After they were questioned by the officers, neither he nor Craddock were allowed back into the courtroom. During the lunch break, he and the three attending the trial with him were followed by the police for three to five minutes after they left the courthouse. Although he had planned to return to the trial, he did not return, because he was intimidated by what he considered police harassment. He told the court that the courtroom was closed after the first recess. Appellant argues that the officer s actions dissuaded other citizens from entering the courtroom effectively depriving him of a public trial.

 

Vinson admitted that he saw the sign on the courtroom door that, in order to avoid distracting the jury, people were to come in and out only at certain times. Vinson also acknowledged that he knew Appellant had once tried to escape. There was no evidence that the officers questioned anyone else or denied them admission to the courtroom. There is no evidence that the trial judge or the prosecutor ordered Vinson and Craddock to be taken from the courtroom and questioned. There is nothing to show that they or the jury were aware that it occurred.

Reasonable limitations on public attendance may be imposed where they are necessary to protect a state interest that outweighs the defendant s right to public scrutiny. Hernandez v. State, 914 S.W.2d 218, 222 (Tex. App. El Paso 1996, pet. ref d). The record does not show that the security measures in place during Appellant s trial rose to the level of discouraging public access to the proceedings. Appellant s first issue is overruled.

Refusal of the Trial Court to Order a Retest of DNA

In his second issue, Appellant contends the trial court erred in denying his request for a second DNA test. Four days before trial, Appellant s counsel requested that Appellant be brought before the court so that he could express his dissatisfaction with his appointed counsel. One of the disputes between Appellant and his attorney was his attorney s refusal to ask for another DNA test. His attorney told the court that he could not present such a motion without good grounds to support it. The court then asked Appellant if the evidence needed to be tested again. Appellant replied, I would like, but-yeah. I feel that in my heart, yeah, because it s my feeling. The court asked, It s your feeling that its inaccurate? Appellant responded, Yes, sir. No basis for challenging the reliability was offered by Appellant or his counsel. The court refused to order another DNA test. With no basis shown beyond Appellant s belief that the results were wrong, the trial court did not err in denying a second test of Appellant s DNA. Appellant s second issue, as it pertains to the trial court s denial of a second DNA test, is overruled.

Ineffective Assistance of Counsel

In his second issue, Appellant also maintains that his counsel was ineffective in that he did not ask the court to provide a DNA expert to assist the defense.

Standard of Review

The standard for testing claims of ineffective assistance of counsel is set out in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted for Texas constitutional claims in Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex. Crim. App. 1986). To meet his burden, an appellant must prove that his attorney s representation fell below the standard of prevailing professional norms and that there is a reasonable probability that, but for the attorney s deficiency, the result of the trial would have been different. Tong v. State, 25 S.W.2d 707, 712 (Tex. Crim. App. 2000). A reasonable probability is a probability sufficient to undermine confidence in the outcome of the proceeding. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Hernandez, 726 S.W.2d at 55. In evaluating the effectiveness of counsel, the reviewing 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).

Our review of counsel s representation is highly deferential; we indulge a strong presumption that counsel s conduct falls within a wide range of reasonable representation. Strickland, 466 U.S. at 689, 104 S. Ct. 2065; Tong, 25 S.W.3d at 712. This court will not second guess through hindsight the strategy of counsel at trial, nor will the fact that another attorney might have pursued a different course of action necessarily indicate ineffective assistance. Harner v. State, 997 S.W.2d 695, 704 (Tex. App. Texarkana 1999, no pet.). Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).

We further recognize that the Texas Court of Criminal Appeals has held that, under normal circumstances, the record on direct appeal will not be sufficient to show that counsel s representation was so deficient and so lacking in tactical or strategic decisionmaking as to overcome the presumption that counsel s conduct was reasonable and professional. Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001). In addressing this reality, the court has explained that appellate courts can rarely decide the issue of ineffective assistance of counsel because the record almost never speaks to the strategic reasons trial counsel may have considered. The proper procedure for raising this claim is therefore almost always habeas corpus. Aldrich v. State, 104 S.W.3d 890, 896 (Tex. Crim. App. 2003). Nevertheless, some claims may be disposed of on direct appeal where trial counsel s ineffectiveness is so apparent from the record. Massaro v. United States, 538 U.S. 500, 508, 123 S. Ct. 1690, 1696, 155 L. Ed. 2d 714 (2003); Thompson, 9 S.W.3d at 814 n.6.

Applicable Law

The Fourteenth Amendment requires the state, upon request by an indigent defendant, to provide the basic tools of an adequate defense . . .when those tools are available for a price to other prisoners. Britt v. North Carolina, 404 U.S. 226, 227, 92 S. Ct. 431, 433, 30 L. Ed. 2d 400 (1971). The requirement that the state furnish basic tools for an adequate defense does not mean the state must provide the indigent with the same assistance a wealthier defendant could buy, but requires only that the [s]tate provide assistance if the denial of that assistance would frustrate a fair proceeding. Taylorv. State, 939 S.W.2d 148, 152 (Tex. Crim. App. 1996). If the defendant contends that he is constitutionally entitled to an expert, the essential inquiry is whether the expert can provide assistance that is likely to be a significant factor at trial. See Rey v. State, 897 S.W.2d 333, 339 (Tex. Crim. App. 1995). If [the] appellant demonstrated the complexity of the issues involved and the importance of the requested expert testimony [in relation to] a viable defense, then he would have been entitled to a DNA expert. Taylor, 939 S.W.2d at 152. [A] defendant is not entitled to an expert who will concur with the defensive theory and testify accordingly. Id. at 153 n.5. But at a minimum, due process requires expert aid in the evaluation and presentation of the defendant s case and the identification of weaknesses in the state s case. Id. If his expert opinion does support the defense theory, an expert can testify in support of the defense. Id.

Discussion

Appellant s sole basis for his claim of ineffective assistance is his attorney s failure to request that the State provide a DNA expert to assist him. He vaguely asserts that an expert could have provided input as to whether the tests were conducted properly and whether contamination was an issue. Appellant points to no specific deficiencies in his counsel s cross examination of the State s experts on those two issues. His counsel s vigorous cross examination of the State s DNA expert regarding custody, contamination, testing procedure, and statistical reliability involved in the use of DNA in forensics demonstrated that he was well informed regarding the scientific and legal issues related to DNA testing. A Texas Department of Public Safety serologist did the initial DNA tests. Counsel took the serologist on voir dire, and he challenged the chain of custody of the State s evidence. Appellant has pointed to no deficiency in his counsel s performance resulting from his lack of assistance by a defense DNA expert. There is no showing that counsel s performance was ineffective. Appellant s second issue, as it pertains to ineffective assistance of counsel, is overruled.

Factual Sufficiency

In his third issue, Appellant challenges the factual sufficiency of the evidence to support the jury s verdict.

Standard of Review

The court of criminal appeals explained the factual sufficiency standard in Zuniga v. State, 144 S.W.3d 477 (Tex. Crim. App. 2004):

There is only one question to be answered in a factual sufficiency review: Considering all of the evidence in a neutral light, was a jury rationally justified in finding guilt beyond a reasonable doubt? However, there are two ways in which the evidence may be insufficient. First, when considered by itself, evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt. Second, there may be both evidence supporting the verdict and contrary to the verdict. Weighing all evidence under this balancing scale, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met, so [that] the guilty verdict should not stand. This standard acknowledges that evidence of guilt can preponderate in favor of conviction but still be insufficient to prove the elements of crime beyond a reasonable doubt. Stated another way, evidence supporting guilt can outweigh the contrary proof and still be factually insufficient under a beyond-a-reasonable-doubt standard.

 Id. at 484-85.

Discussion

Appellant contends that the evidence is insufficient because two friends testified that he was with them at a gathering following a funeral at which all three were pall bearers. The crime was committed shortly before 8:00 p.m. Phipps testified that Appellant was with them until at least 8:15 p.m. when Phipps left. Goff said Appellant was gone only a few minutes around 7:45 p.m. to buy something at the Sonic Burger, but not long enough to commit the crime and return.

The victim was positive that Appellant was her assailant. The DNA tests indicated that there was 1 chance in 19.93 million that an unrelated random person in the black population was a contributor to the DNA obtained from the sperm in the victim s vaginal swabs. The credibility of the witnesses and the weight to be given their testimony is for the jury to determine. Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim. App. 2000). The evidence supporting the conviction is sufficient to prove the elements of the crime beyond a reasonable doubt, and the contrary evidence is not so compelling that it casts doubt on the result. The evidence is factually sufficient to support the conviction. Appellant s third issue is overruled.

Disposition

The judgment is affirmed.

BILL BASS

Justice

Opinion delivered July 12, 2006.

Panel consisted of Worthen, C.J., Griffith, J. and Bass, Retired Justice, Twelfth Court of Appeals, Tyler, sitting by assignment.

(DO NOT PUBLISH)