Nolen v. State
| Decision Date | 22 December 2016 |
| Docket Number | NO. 02-15-00159-CR,02-15-00159-CR |
| Parties | TYSON JAMES NOLEN APPELLANT v. THE STATE OF TEXAS STATE |
| Court | Texas Court of Appeals |
FROM THE 355TH DISTRICT COURT OF HOOD COUNTY
A jury convicted Appellant Tyson James Nolen of continuous sexual abuse of a child and assessed his punishment at confinement in the penitentiary for fifty-four years. See Tex. Penal Code Ann. § 21.02 (West Supp. 2016). In his first issue, Appellant contends he received ineffective assistance of counsel. In his second issue, he contends that the admission of extraneous offenses under section 2(b) of article 38.37 of the code of criminal procedure violated the constitutional prohibition against ex post facto laws. We affirm.
BACKGROUND
Appellant was a teacher whom the State alleged had committed the offense of continuous sexual abuse of a child from about November 1, 2012, through March 15, 2013; the complainant was one of Appellant's students, a thirteen-year-old girl at the time of the alleged offense. Pursuant to article 38.37 of the code of criminal procedure, in addition to evidence pertinent to the complainant, the State, during the trial on guilt/innocence, also introduced evidence that Appellant had sexually abused another of his students, a girl who at the time was sixteen years old. See Tex. Code Crim. Proc. Ann. art. 38.37 (West Supp. 2016). The jury found Appellant guilty of the offense as charged in the indictment.
During the punishment trial, the State introduced evidence of a third female student of Appellant's that he had sexually abused. The jury assessed his punishment at imprisonment for fifty-four years in the penitentiary. The trial court sentenced him accordingly.
FIRST ISSUE: INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL
Appellant contends that defense counsel rendered ineffective assistance at trial in three respects. First, he alleges that defense counsel failed to investigate the circumstances of the offense. Second, he asserts that defense counsel failed to retain an expert witness. Third, Appellant maintains that defense counsel failed to object to the seating arrangement of the spectators at his trial.
Standard of Review
Because Appellant claimed ineffective assistance of counsel as part of his motion for new trial and he received a hearing on his motion, our task is to determine whether the trial court erred in denying that motion. See Riley v. State, 378 S.W.3d 453, 457 (Tex. Crim. App. 2012); Dotson v. State, No. 04-14-00285-CR, 2015 WL 4273582, at *3 (Tex. App.—San Antonio July 15, 2015, pet. ref'd) (). Accordingly, we use the abuse of discretion standard of review applicable to denials of motions for new trial. Riley, 378 S.W.3d at 457. This standard requires us to show great deference to the trial court; we reverse only if the trial court's decision was clearly erroneous and arbitrary. Id. An "appellate court must not substitute its own judgment for that of the trial court and must uphold the trial court's ruling if it is within the zone of reasonable disagreement." Id. As to determinations of fact, we must view the evidence in the light most favorable to the trial court's ruling; a trial court abuses its discretion only if no reasonable view of the evidence could support its holding. Id. at 457-58.
To establish ineffective assistance of counsel, Appellant must show by a preponderance of the evidence that his counsel's representation was deficient and that the deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); Nava v. State, 415 S.W.3d 289, 307 (Tex. Crim. App. 2013); Hernandez v. State, 988 S.W.2d 770, 770 (Tex. Crim. App. 1999). An ineffective-assistance claim must be "firmly founded in therecord," and "the record must affirmatively demonstrate" the meritorious nature of the claim. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). In evaluating the effectiveness of counsel under the deficient-performance prong, we look to the totality of the representation and the particular circumstances of each case. Id. The issue is whether counsel's assistance was reasonable under all the circumstances and prevailing professional norms at the time of the alleged error. See Strickland, 466 U.S. at 688-89, 104 S. Ct. at 2065; Nava, 415 S.W.3d at 307. Review of counsel's representation is highly deferential, and the reviewing court indulges a strong presumption that counsel's conduct was not deficient. Nava, 415 S.W.3d at 307-08.
The prejudice 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 with a reliable result. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. In other words, Appellant must show there is a reasonable probability that, without the deficient performance, the result of the proceeding would have been different. Id. at 694, 104 S. Ct. at 2068; Nava, 415 S.W.3d at 308. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Nava, 415 S.W.3d at 308. The ultimate focus of our inquiry must be on the fundamental fairness of the proceeding in which the result is being challenged. Strickland, 466 U.S. at 697, 104 S. Ct. at 2070.
Failure to Investigate
Regarding the failure to investigate, Appellant complains that defense counsel did not visit the school or the copy room at the school where one of the alleged acts occurred. Appellant also complains that defense counsel did not view the attendance records or class schedules of the alleged victims. Finally, Appellant complains that defense counsel did not interview the principal.
Appellant stresses that during the hearing on his motion for new trial, Dr. Sharon Miller, the director of the L5 Ace program at the school, testified that she was shocked that anyone would think that an offense could occur in the copy room. She said the copy room had a window five feet wide and three feet tall through which anyone could see. Dr. Miller's office was next to the copy room, and she said that there was always someone in her office. The copy room itself was in the main hub of the school, and directly across from the copy room were bathrooms. Because of the visibility and the daily use of the copy room, Dr. Miller thought that it was highly unlikely that anything happened in the copy room. Dr. Miller testified that in thirteen years, she had never seen the door to the copy room closed.
She also testified that she had never seen the door to Appellant's classroom closed and that she had made a point to tell teachers, especially male teachers, to leave their doors open. She said that she would "stick [her] head" into his room to make sure everything was okay, and she would see both Appellant and his students at their desks.
At the hearing on the motion for new trial, defense counsel testified that he did not visit the school. Defense counsel received the State's entire file. He said visiting the school would have been a waste of time. During trial, the State introduced numerous photographs of the copy room, the hallways, and Appellant's classroom.
State's Exhibits 14 through 19 show the copy room. State's Exhibit 14 shows the hallway entrance into the copy room and the large window that Dr. Miller mentioned in her testimony. However, State's Exhibit 15 shows that the door did not lead directly into the copy room but, instead, into an anteroom.
At the back of the anteroom are two doors. To the far right is a door, and to the far left is another door that leads to the copy room. Consequently, the large window in the hallway gives a direct view to the anteroom but only an indirect view to the rooms behind the anteroom.
The two doors at the back of the anteroom have tall, narrow windows. The narrow windows on both doors are partially obstructed by various ornaments.
The door to the far right of the anteroom is aligned with the hallway door. In the photograph, that door on the far right is closed, but if it were opened, it would appear to offer a view to the full depth of the room behind it.
In contrast, even when left fully open as shown in the photograph, because of the angle, the far left door—the one leading to the copy room—offers only a limited view into the copy room itself and does not offer a view of the full depth of the copy room unless one is standing within the doorframe itself.
State's Exhibits 17 and 18 show that the copy room is deep and narrow. The copier is located at the deepest part of the room.
State's Exhibit 19 shows that when standing at the very back of the copy room near the copier and looking towards the door leading into the anteroom, one cannot see the large window in the anteroom. All one can see is the wall to the right of the large window. Consequently, because one cannot see the hallway from the deepest part of the copy room, it would follow that the converse would be true too, that is, that from the hallway, one could not see the far end of the copy room.
The complainant testified that Appellant asked her to make copies and accompanied her into the copy room. Once inside the room, the complainant said that she "knew something was going to happen again" because Appellant walked out to make "sure no one was coming" and then "came back in." Appellant then put his hand down her pants in the copy room.
State's Exhibits 22, 23, 24, and 25 show that the door to Appellant's classroom was not flush with the wall but protruded several feet into the classroom, leaving a shallow alcove along the wall that Appellant's classroom shared with the hallway. Appellant's desk was at the far end of the alcove, the farthest distance away from the door. From the photos, it is clear that no one from the hallway could see Appellant's desk unless the person walked through the door into the classroom and looked to the immediate right into the...
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