Beheler v. State

• Decision Date: 16 September 1999
• Citation: Beheler v. State, 3 S.W.3d 182 (Tex. App. 1999)
• Parties: (Tex.App.-Fort Worth 1999) MICHAEL SHAWN BEHELER, APPELLANT v. THE STATE OF TEXAS, STATE NO. 2-98-475-CR
• Court: Texas Court of Appeals

Page 182

3 S.W.3d 182 (Tex.App.-Fort Worth 1999)

MICHAEL SHAWN BEHELER, APPELLANT v. THE STATE OF TEXAS, STATE

NO. 2-98-475-CR

COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

SEPTEMBER 16, 1999

FROM THE 213TH DISTRICT COURT OF TARRANT COUNTY

[Copyrighted Material Omitted]

PANEL A: CAYCE, C.J.; DAY and DAUPHINOT, JJ.

SAM J. DAY, JUSTICE.

OPINION

A jury convicted Michael Shawn Beheler of aggravated sexual assault and assessed punishment at 60 years' confinement. On appeal, Beheler alleges (1) he received ineffective assistance of counsel and (2) the trial court committed reversible error in admitting the victim's hearsay statements.

We affirm.

I. BACKGROUND

Because Beheler does not challenge the sufficiency of the evidence, only a brief recitation of the facts is necessary.

At 11:30 p.m. on February 27, 1998, Beheler asked Jennifer Ellis, his common-law wife, to leave their home and go buy more beer for him. Ellis returned with the beer in about fifteen minutes. Her oldest child, S.E., got out of bed and followed Ellis into the bathroom. S.E. was whining and Ellis noticed that the front of her panties was stretched out. Ellis asked S.E. if Beheler had been bothering her. S.E. responded affirmatively and said Beheler had put his "ding-ding" in her. When Ellis asked if it had happened before, S.E. answered, "yes, about a million times," and provided additional details. Ellis immediately confronted Beheler, who denied the allegations and asked S.E. if she meant someone else. S.E. told him, "No, it was you." Ellis called the police and Beheler was arrested at their home.

The following day, Ellis took S.E. to Cook's Children's Medical Center for a sexual assault exam. The exam revealed a submucosal hemorrhage to S.E.'s hymen that was inconsistent with accidental trauma and indicative of some type of penetrating injury.

On May 5, 1998, a grand jury returned a two-count indictment charging Beheler with aggravated sexual assault and indecency with a child. The State later waived the second count and proceeded to trial solely on the aggravated sexual assault charge.

II. INEFFECTIVE ASSISTANCE OF COUNSEL

In point one, Beheler argues his trial counsel rendered ineffective assistance of counsel "as a result of lack of knowledge of the applicable case law." Specifically, he contends that because the State introduced evidence that Beheler sexually assaulted S.E. on more than one occasion, his trial counsel should have (1) demanded that the State elect which incident it would rely on to support the conviction and (2) requested an oral limiting instruction on the remaining extraneous offenses.¹

The standard for appellate review of effectiveness of counsel at the guilt-innocence phase of a noncapital trial was set out in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984) and adopted by the Court of Criminal Appeals in Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986). See Ex parte Menchaca, 854 S.W.2d 128, 131 (Tex. Crim. App. 1993). Appellant's claim that counsel's assistance was so defective as to require reversal of a conviction has two components. First, appellant must show that his counsel's performance was deficient; second, he must show the deficient performance prejudiced the defense. See Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. The first component is met by showing appellant's trial counsel made errors so significant she was not functioning as the "counsel" guaranteed by the Sixth Amendment to the United States Constitution. See id. The second prong of Strickland requires a showing that counsel's errors were so serious that they deprived the defendant of a fair trial, i.e., a trial whose result is reliable. See id.

The question for our review is whether there is a reasonable probability that, absent counsel's errors, the fact-finder would have had a reasonable doubt on the issue of guilt, considering the totality of the evidence. See id. at 695, 104 S. Ct. at 2069. Our scrutiny of counsel's performance must be highly deferential, and every effort must be made to eliminate the distorting effects of hindsight. See id. at 689, 104 S. Ct. at 2065. Allegations of ineffective assistance of counsel must be firmly founded in the record and the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. See id.; Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994).

Here, Beheler had the burden to rebut the presumption that his counsel's decisions were not reasonable trial strategy. As the State correctly points out, there is nothing in the record to suggest that they were not. Beheler's trial attorney could have reasonably decided against asking for an election and a limiting instruction to avoid drawing the jury's attention to the extraneous offenses. See, e.g., Garcia v. State, 887 S.W.2d 862, 881 (Tex. Crim. App. 1994), cert. denied, 514 U.S. 102 (1995) (holding trial counsel's decision not to request a limiting instruction to avoid reminding jury of incriminating evidence was reasonable trial strategy); Abbott v. State, 726 S.W.2d 644, 649 (Tex. App.-Amarillo 1987, pet. ref'd) (holding that trial attorney's failure to request limiting instruction on extraneous offenses could have been a strategic decision not to remind the jury of that evidence). Because the record in this case is devoid of anything that reflects the trial attorney's reasoning, we must defer to the Strickland presumption that the defense counsel's decisions on these matters were part of a sound trial strategy. See Jackson, 877 S.W.2d at 771-72. Point one is overruled.

III. HEARSAY

A. THE VICTIM'S STATEMENTS TO ELLIS

In point two, Beheler complains that the trial court erred in allowing Ellis to testify about S.E.'s out-of-court statements because they were inadmissible hearsay. Specifically, he argues that S.E.'s statements to her mother were not admissible under the outcry provision of the code of criminal procedure and, furthermore, that the trial court failed to follow the statutory prerequisites of this provision to admit outcry testimony.² Because Beheler failed to preserve error on this point, however, we do not reach the merits of his complaint.

At trial, the State elicited the following testimony from Ellis:

[STATE]: Did you ask [S.E.] any questions in regards to what was wrong?

[ELLIS]: Yes. I asked her was he bothering you.

[STATE]: When you said he, who did you mean?

[ELLIS]: Michael Beheler.

[STATE]: What did [S.E.] say?

[DEFENSE COUNSEL]: Objection, hearsay. Doesn't comply with 38.072.

THE COURT: Overruled.

[STATE]: You can answer.

[ELLIS]: She said yes, that he had been bothering her and that he put his ding-ding on her.

[STATE]: And did she say just put ding-ding on her or was she more specific about that?

[ELLIS]: I couldn't understand if she said on her, in her, and then she repeated herself and she said in her.

[STATE]: And because she's your daughter, what did she mean by ding-ding? What does -- what anatomical part is she referring to when she says ding-ding?

[ELLIS]: Penis.

[STATE]: What did you do when [S.E.] told you this?

[ELLIS]: I couldn't believe it and I asked her if it had happened before and she said yes, about a million times. And then I just asked her more questions and details about what happened.

. . . . [STATE]: And did [S.E.] also tell you that the Defendant had threatened her?

[ELLIS]: Yes.

[STATE]: What did [S.E.] tell you?

[ELLIS]: She said that he told her that if she didn't tell me it was a lie, he was going to kill her.

Where an appellant claims the trial judge erred in admitting evidence offered by the State, the error must have been preserved by a proper objection and ruling. See Ethington v. State, 819 S.W.2d 854, 858 (Tex. Crim. App. 1991); Rawlings v. State, 874 S.W.2d 740, 742 (Tex. App.-Fort Worth 1994, no pet.). The objection must have been timely, and the defense must have stated the basis for the objection unless the particular ground was apparent from the context. See Lankston v. State, 827 S.W.2d 907, 908-09 (Tex. Crim. App. 1992). In addition, Texas law generally requires a party to continue objecting each time inadmissible evidence is offered. See Ethington, 819 S.W.2d at 858. Any error in admitting the evidence is cured where the same evidence comes in elsewhere without objection. See Hudson v. State, 675 S.W.2d 507, 511 (Tex. Crim. App. 1984); Mack v. State, 872 S.W.2d 36, 38 (Tex. App.-Fort Worth 1994, no pet.). The two exceptions to this rule are (1) where the party asks for and receives a running objection and (2) where the party receives a ruling outside the presence of the jury. See TEX. R. EVID. 103(a)(1); Ethington, 819 S.W.2d at 858; Rawlings, 874 S.W.2d at 742.

Here, after Beheler made a timely objection to the State's question in the presence of the jury, he did not continue to object when the same evidence was elicited through additional questioning. Because Beheler did not obtain a running objection or a ruling outside the presence of the jury and did not continue to object each time Ellis related S.E.'s out-of-court statements, Beheler did not preserve anything for our review on this point. See Ethington, 819 S.W.2d 859-60. We overrule point two.

B. THE VICTIM'S STATEMENTS TO DESMARIS

In his third point, Beheler complains that the trial court erred in admitting the testimony of Araceli Desmaris, a sexual assault nurse examiner at Cook's Children's Medical Center, regarding S.E.'s description of her history of sexual abuse. At trial, Desmaris testified that she interviewed S.E. before conducting a physical exam. During the interview, S.E. stated:

[E]very time my mom goes to work . . ., [Beheler] takes off my clothes. He lays on me and puts his thing inside my private in the hole and it hurts. He pushes . . . my head and makes me suck his ding. It makes me want to puke. Some kind of white stuff comes out of his ding on my...