Brown v. State, 05261999

• Citation: 6 S.W.3d 571
• Parties: (Tex.App.-Tyler 1999) REGINALD DERWIN BROWN, APPELLANT v. THE STATE OF TEXAS, APPELLEE NO. 12-97-00332-CR
• Decision Date: 26 May 1999
• Court: Court of Appeals of Texas

Page 571

6 S.W.3d 571 (Tex.App.-Tyler 1999)

REGINALD DERWIN BROWN, APPELLANT v. THE STATE OF TEXAS, APPELLEE

NO. 12-97-00332-CR

COURT OF APPEALS OF TEXAS, TWELFTH DISTRICT, TYLER

May 26, 1999

Rehearing Overruled June 15, 1999

Discretionary Review Refused October 20, 1999.

APPEAL FROM THE 7TH JUDICIAL DISTRICT COURT OF SMITH COUNTY, TEXAS. Hon. Louis B. Gohmert, Jr.

[Copyrighted Material Omitted]

Gary A. Udashen, Dallas, TX, for appellant.

Jack Skeen, Jr., Tyler, TX, Edward J. Marty, Tyler, TX, for appellee.

Panel consisted of Ramey, Jr., C.J., Hadden, and Worthen, J.

HADDEN, Justice.

A jury convicted Reginald Derwin Brown ("Brown") of the offense of sexual assault of a child. TEX. PEN. CODE ANN. 22.011 (a)(2)(A) (Vernon 1994 & Supp. 1999). The trial judge sentenced Brown to eight years' confinement in the Institutional Division of the Texas Department of Criminal Justice. In eleven issues, Brown appeals his conviction and sentence. We will affirm the trial court's judgment.

I. FACTUAL BACKGROUND

Brown was charged with the offense of sexual assault of a child alleging that the assault occurred on or about August 26, 1993. The complainant, F.M., testified at trial that Brown had sexual intercourse with her on four separate occasions during a period from May to August of 1993. F.M. testified that the first encounter occurred between May 17 and when school let out for the summer, that the second encounter occurred a few days or a couple of weeks after the first encounter, and that the third occurred one and one-half months after the second. F.M. testified that the last encounter occurred somewhere around August 26, 1993. During this time, F.M. attended Grace Tabernacle Church where Brown was the pastor.

II. GUILT-INNOCENCE PHASE

A. Ineffective Assistance of Counsel

In issues one and two, Brown contends that he was denied the effective assistance of counsel at the guilt-innocence phase of the trial in violation of the United States and Texas Constitutions. Specifically, Brown argues that his counsel was ineffective because he failed to properly object to the admission of extraneous offenses, to ask for an election between various offenses, or to request an instruction limiting the purpose for which extraneous offenses could be considered. We will address these issues together.

A defendant is entitled to the "reasonably effective assistance" of counsel. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984); Stafford v. State, 813 S.W.2d 503, 506 (Tex. Cr. App. 1991). However, a defendant is not entitled to errorless counsel or counsel whose competency is judged by hindsight. Stafford, 813 S.W.2d at 506; Calderon v. State, 950 S.W.2d 121, 126 (Tex. App. - El Paso 1997, no pet.). With respect to the guilt-innocence phase of a trial, the proper standard for determining claims of ineffective assistance under the Sixth Amendment is the two-step analysis adopted by the Supreme Court of the United States in Strickland v. Washington. Vasquez v. State, 830 S.W.2d 948, 949 (Tex. Cr. App. 1992). The Strickland analysis also applies to claims arising under article one, section 10 of the Texas Constitution. Hernandez v. State, 726 S.W.2d 53, 55 (Tex. Cr. App. 1986).

Under the first prong, the defendant must show that counsel's performance was deficient, to the extent that counsel failed to function as the "counsel" guaranteed by the Sixth Amendment. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Cr. App. 1994). The defendant must demonstrate that his attorney's representation fell below an objective standard of reasonableness under prevailing professional norms. Vasquez, 830 S.W.2d at 949. Under the second prong, the defendant must establish that counsel's deficient performance prejudiced the defense. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Jackson, 877 S.W.2d at 771. Prejudice is established by a showing that there is a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Jackson, 877 S.W.2d at 771; Hernandez, 726 S.W.2d at 55. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Jackson, 877 S.W.2d at 771.

When a claim of ineffective assistance of trial counsel is reviewed by this Court, we must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable, professional assistance and the appellant must overcome the presumption that the challenged conduct can be considered sound trial strategy. Jackson, 877 S.W.2d at 771; Calderon, 950, S.W.2d at 126. Consequently, allegations of ineffectiveness of counsel must be firmly founded in the record. Hawkins v. State, 660 S.W.2d 65, 75 (Tex. Cr. App. 1983); Calderon, 950 S.W.2d at 126. Further, ineffectiveness of counsel is not to be judged on the basis of isolated instances of error, but on the entire record and the totality of circumstances. Hawkins, 660 S.W.2d at 75; Bridge v. State, 726 S.W.2d 558, 571 (Tex. Cr. App. 1986). Under the Strickland test, the appellant bears the burden of proving ineffective assistance by a preponderance of the evidence. Jackson, 877 S.W.2d at 771; Calderon, 950 S.W.2d at 126.

1. Objection to "Extraneous Offenses" by Brown Against F.M.

According to Brown, three of the sexual encounters he had with F.M. were extraneous offenses and were subject to exclusion on the basis of Texas Rules of Criminal Evidence 404(b) and 403.¹ Brown contends that he was denied the effective assistance of counsel because his attorney failed to object to F.M.'s testimony pertaining to the three extraneous offenses. Further, Brown asserts that his counsel was ineffective because counsel failed to request a jury instruction limiting the use of the extraneous offenses to the purpose for which they were admitted. We disagree.

When claiming ineffective assistance for failing to object, an appellant must demonstrate that if trial counsel had objected, the trial judge would have committed error in refusing to sustain the objection. Vaughn v. State, 931 S.W.2d 564, 566 (Tex. Cr. App. 1996); Moore v. State, 4 S.W.2d 269 (Tex. App. - Houston [14th Dist.], no pet.); Calderon, 950 S.W.2d at 129. Here, the trial judge could have properly overruled the objection that Brown argues his counsel should have made. The indictment alleged that "Brown knowingly and intentionally cause [sic] the penetration of the female sexual organ of [F.M.], a child, younger than seventeen years of age who was not the spouse of Reginald Derwin Brown, by the penis of the said Reginald Derwin Brown." Thus, each of the encounters F.M. testified about involved the same conduct alleged in the indictment. "An extraneous offense is any act of misconduct, whether resulting in prosecution or not, which is not shown in the charging instrument and which was to have been committed by the accused." Hernandez v. State, 817 S.W.2d 744, 746 (Tex. App. - Houston [1st Dist.] 1991, no pet.) (emphasis added). As noted in Worley v. State, 870 S.W.2d 620, 622 (Tex. App. - Houston [1st Dist.] 1994, pet. ref'd), the State may put on "evidence of multiple occurrences of the acts alleged in the indictment, even if the evidence shows that such acts were committed on different dates from the dates shown in the indictment." F.M.'s testimony, therefore, did not "describe an offense, but merely quantified its occurrence."² Id.

Brown further argues that persons who commit multiple discrete assaults against the same victim are liable for separate prosecutions and punishment for every instance of such criminal conduct and therefore the analysis under Rule 404b applies. See Vernon v. State, 841 S.W.2d 407 (Tex. Cr. App. 1982). Vernon, however, involved "unalleged similar acts of sexual abuse." Id. at 410. The appellant in Vernon was convicted of aggravated sexual assault for "putting his finger into the sexual organ of his 13-year-old stepdaughter." Id. at 408. The "similar" acts of sexual abuse were multiple instances of the appellant fondling his stepdaughter over a period of several years. Id. at 410. Fondling and penetration are distinct acts that may be separately prosecuted under different sections of the Penal Code.³ The Vernon indictment charged the accused with digital penetration only, not with the prior instances of external touching. Hence, the external touching offenses were unalleged and extraneous. Id. at 411; Worley, 870 S.W.2d at 621.

As indicated above, however, the three sexual encounters complained of involve the identical conduct alleged in the indictment. The only difference between the conduct charged in the indictment and the other sexual encounters is the date. A variance in the date between the indictment and the evidence will not invalidate an indictment or a conviction. Id. An appellant's multiple commissions of the sexual acts charged in the indictment are not extraneous offenses for evidentiary purposes. Id. Thus, the evidence here was admissible, and counsel was not ineffective for failing to lodge an objection. See McFarland v. State, 845 S.W.2d 824, 846 (Tex. Cr. App. 1993) (holding that the failure to object to admissible evidence does not constitute ineffective assistance). Further, because the other sexual encounters were not extraneous offenses, but rather were multiple acts of the conduct charged in the indictment, counsel was not ineffective for failing to request a limiting instruction.

2. Election

Brown also contends that he was denied the effective assistance of counsel when his counsel failed to request that the State elect a particular sexual encounter, of the four F.M. testified about, to be submitted to the jury. Brown asserts that without an election, there is no assurance that the jury reached a unanimous verdict in this case and the omission of counsel to request an election is clearly...