Coons v. State, s. B14-87-00548-C

CourtCourt of Appeals of Texas
Citation758 S.W.2d 330
Docket NumberC14-87-00549-CR,Nos. B14-87-00548-C,s. B14-87-00548-C
PartiesJames Kevin COONS, Appellant, v. The STATE of Texas, Appellee. (14th Dist.)
Decision Date18 August 1988

Page 330

758 S.W.2d 330
James Kevin COONS, Appellant,
The STATE of Texas, Appellee.
Nos. B14-87-00548-CR, C14-87-00549-CR.
Court of Appeals of Texas,
Houston (14th Dist.).
Aug. 18, 1988.

Page 332

Kenneth W. Smith, Houston, for appellant.

John B. Holmes, Jr., Kathlyn Giannaula, Houston, for appellee.




Appellant was convicted by a jury of the offenses of aggravated sexual assault and aggravated kidnapping. Punishment was assessed at ninety-nine years and a $10,000 fine for the aggravated sexual assault and ten years and a $5,000 fine for the aggravated kidnapping. We affirm.

No challenge has been made to the sufficiency of the evidence. Vanderbilt v. State, 629 S.W.2d 709 (Tex.Crim.App.1981), cert. denied, 456 U.S. 910, 102 S.Ct. 1760, 72 L.Ed.2d 169 (1982). Therefore, viewing the evidence in a light most favorable to the verdict, the record shows the following facts:

Just after 4:00 a.m. on September 14, 1986, appellant grabbed the complainant from behind as she was walking from a nightclub to her car on a dimly lit residential street. She attempted to break free and scream but appellant warned her to stop or he would use his knife. She was dragged in a headlock grip to appellant's pickup truck. The complainant's head was forced into appellant's scrotum at various times while he drove her to his apartment. Once appellant stopped the truck and raped the complainant. He had covered his face with an undershirt. When appellant finally stopped the truck, the complainant saw carports around her. He dragged her with a headlock grip onto his patio and into his residence. Once inside the apartment, the complainant was forced to sexually gratify appellant while on her knees. Appellant then left the complainant to retrieve something from another room and the complainant attempted to escape through the sliding glass door. Appellant's dog started to

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bark and jumped on her as she entered the patio. Just as she opened the gate, appellant wrestled her back inside and threatened her for her attempt to escape. The complainant was forced to remove her clothing and she was raped. Appellant commanded her to wait while he went upstairs and being afraid of getting caught again, the complainant complied. When appellant returned, he had replaced the undershirt which had been over his face with a camouflage hood. During the following hours, the complainant while naked, bound, and tied, was forced to gratify appellant's sadistic sexual pleasures.

Later, appellant calmed down, smoked a cigarette, and asked complainant for her address and telephone number for "insurance purposes" before he finally untied his victim. He removed the camouflage mask and put his undershirt back over his head and then allowed the complainant to get dressed. The complainant was led back to appellant's truck and again made to lay with her face in his lap but not forced to do anything further. Appellant then began stroking her back and apologized for his behavior. Appellant said that once he grabbed her from the street, he had to carry through with his acts.

Appellant drove her to her car but, before she was allowed to leave, forced her to kiss him on the mouth. In order to accomplish this, appellant lifted his undershirt to above his nose. Complainant was then able to observe that appellant's nose was broad at the base and that he had thin lips and a mole on his cheek.

Once complainant reached home she contacted family members and friends and went to the hospital. She was able to describe the truck, the apartment and its contents, the dog and the camouflage outfit to the police. She also stated that she believed that she could identify her assailant.

Approximately six weeks later, appellant was arrested and placed in a lineup from which the complainant was able to identify him positively. Police subsequently seized a camouflage outfit and other items which matched the complainant's description. The apartment had sliding glass doors, inside were posters and appellant had a dog matching the complainant's description.

In points of error one through six, appellant argues that he was denied effective assistance of counsel. In order to establish relief under a claim of ineffective assistance of counsel, appellant must first show that his counsel erred so seriously that he was not functioning as that "counsel" guaranteed by the constitution. He must then show that his counsel's errors deprived him of a fair trial, and caused a trial the result of which is unreliable. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Hernandez v. State, 726 S.W.2d 53 (Tex.Crim.App.1986). In evaluating the first component of the two-pronged test, counsel's competence is presumed. The defendant must rebut this presumption by proving that his attorney's representation was unreasonable under prevailing professional norms, and that the challenged action was not sound trial strategy. Kimmelman v. Morrison, 477 U.S. 365, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986). In order to demonstrate reversible error on the second prong of the test, the defendant must demonstrate that, but for counsel's conduct, the result of the proceeding would have been different. Strickland, 446 U.S. at 697, 104 S.Ct. at 2069; Rico v. State, 707 S.W.2d 549 (Tex.Crim.App.1983). It is not necessary for a court to address both components of the test if the defendant makes an insufficient showing on one. Strickland, 446 U.S. at 697, 104 S.Ct. at 2069. A claim of ineffective assistance of counsel based on the counsel's failure to call witnesses must fail in the absence of a showing that such witnesses were available to testify and that the defendant would have benefitted from their testimony. Wilkerson v. State, 726 S.W.2d 542, 551 (Tex.Crim.App.1986), cert. denied, 480 U.S. 940, 107 S.Ct. 1590, 94 L.Ed.2d 779 (1987); Butler v. State, 716 S.W.2d 48, 55 (Tex.Crim.App.1986).

Here, appellant specifically complains that his counsel failed to call two witnesses whose testimony would have

Page 334

helped the defense. On July 8, 1987, trial counsel informed the court that he had interviewed these two witnesses several months before trial. During that interview, the witnesses indicated that they were moving and gave counsel their new address. Counsel sent subpoena postcards to the new address prior to trial, but the cards were not returned. Counsel stated he believed that since the cards were not returned, the witnesses had received their subpoenas to attend trial. These witnesses did not appear. The trial court then issued an instanter subpoena but the witnesses were not located. The record does not show whether the address was correct. Appellant has not shown that such witnesses were available or that counsel did not make reasonable attempts to secure their presence. Schneider v. State, 645 S.W.2d 463 (Tex.Crim.App.1983). The record also does not contain any affidavits describing what testimony these missing witnesses would have given except that when trial counsel requested the instanter subpoena, he informed the court he believed the witnesses' testimony would show:

[t]hey had never heard or observed any type of untoward activity in the apartment below: that the ceiling--that their floor, [appellant's] ceiling, was very thin; that they had on occasion complained about noise in his apartment and they're very sensitive to that effect.

Assuming that the missing witnesses would have so testified, there is still no showing that the witnesses were at their apartment at the time of the offense. There is also no showing that their failure to hear "untoward activity" from appellant's apartment had any relevance to any issue in the case. Appellant has not shown prejudice. Morris v. State, 696 S.W.2d 616 (Tex.App.--Houston [14th Dist.] 1985), aff'd, 739 S.W.2d 63 (Tex.Crim.App.1987).

Appellant also complains of counsel's failure to present the testimony of a Mr. Randolph who was a security guard on patrol at the complex at the time of the offense. Defense counsel stated that he had attempted to contact this witness, but the employer misled counsel as to the witness' identity. When counsel finally discovered the identity of Mr. Randolph, the security service would not provide further information without a subpoena. The trial court denied counsel's request for a delay of the trial and for the subpoena but allowed the introduction of Mr. Randolph's security report made on the evening of the offense. According to the report, Mr. Randolph had driven through the property at 3:45 and at 5:00 a.m. No unusual activity was reported. However, it was established that the guard would have been on the property only about ten minutes. There is nothing in the record to show Randolph's whereabouts nor that he was actually present at the time of the offense. Even if the security guard had been near appellant's apartment, it was not clear that he could have known that the assault was taking place. Appellant has failed to show that Mr. Randolph was available to testify or that his testimony would have benefitted the defense. The record supports a finding that counsel made reasonable efforts to locate the witness.

Appellant next argues that counsel was ineffective for failing to provide his expert witness with hair specimens which were recovered as evidence. Prior to trial, a motion for discovery of all evidence relating to the case was granted. The state agreed to accompany defense counsel to the Houston police department to examine all evidence obtained by the search warrant or submitted in the rape kit.

Mrs. Kim, a chemist in the Serology department, testified to the rape kit evidence submitted to the Houston police department laboratory. She stated that the hair samples were transferred to one of her co-workers, Ms. Hilleman, and that she did not know the results of any analysis on those samples. After this...

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