Strickland v. State
|03 August 2023
|LARRY GENE STRICKLAND II, Appellant, v. THE STATE OF TEXAS, Appellee.
|Texas Court of Appeals
Do not publish. Tex.R.App.P. 47.2 (b).
On appeal from the 355th District Court of Hood County, Texas.
Before Chief Justice Contreras and Justices Benavides and Longoria
A jury convicted appellant Larry Gene Strickland II on four counts of possession of child pornography, a third-degree felony. See Tex. Penal Code Ann. §§ 12.34, 43.26. Appellant elected for the trial court to impose punishment and it sentenced him to ten years' incarceration for each count and ordered the sentences to run consecutively. See id. § 3.03(b)(3). By his sole issue, appellant contends that his trial counsel was ineffective because he failed to call any witnesses during the punishment phase of trial. We affirm.
Trial began on March 8, 2022. Detective Hank Stufflemire of the Office of the Attorney General (OAG) testified that he received a tip from the National Center for Missing and Exploited Children (NCMEC) stating that it received notice from Google that child pornography was viewed on a Google account. The NCMEC report included the IP address and a phone number belonging to the offending party. Detective Stufflemire discovered that the IP address was associated with a house in Brownwood, Texas. Based on records subpoenaed from Google, Detective Stufflemire learned that the email address of the offending Google account was LarryStrickland1154@gmail.com. And Detective Stufflemire testified that the images viewed by the account depicted children ranging from approximately six months to seven years old being sexually assaulted or photographed nude. Detective Stufflemire went to the address in Brownwood to further investigate the NCMEC tip, but neighbors told him that the tenants had recently moved. After that, the case "went cold."
At some point, Detective Stufflemire received six additional tips from NCMEC and Google, this time leading to a physical address in Granbury, Texas, and an email address listed as Larry1154Strickland@gmail.com. Detective Stufflemire executed a search warrant at the Granbury address and found that appellant and his partner, Vanessa Beckemeyer, lived in a shed in the home's backyard. In the shed, Detective Stufflemire located a smartphone belonging to appellant which contained multiple pictures and GIFsof child pornography. Detective Stufflemire testified that the pornographic images were mixed in with non-pornographic images in the phone's photo library. Detective Dara Bowlin, also of the OAG, testified that between fifty and seventy images of child pornography were found on appellant's phone. She informed the jury that the phone number listed on the NCMEC report belonged to appellant.
Appellant testified in his own defense, denied that he downloaded the child pornography, and called four other witnesses in an attempt to paint Beckemeyer, who had access to his phone, as the one who downloaded the illegal images. Marilyn McClain, appellant's cousin, testified that Beckemeyer was a rude and mean person. Robert Oswald, appellant's stepson, testified that he was somewhat familiar with Beckemeyer and often saw her using appellant's phone. Oswald stated that he never saw his stepfather do anything untoward to any little girls, that appellant was good to his mother, and that he never saw appellant "sneak around with dirty magazines." Tena Ervin, appellant's aunt, testified that appellant and Beckemeyer had an on and off relationship spanning eighteen years. Ervin noted that appellant and Beckemeyer lived in a shed in her backyard. She told the jury that she would help appellant and Beckemeyer locate used appliances to clean, refurbish, and sell. Ervin testified that the operation was conducted from appellant's phone and that it was Beckemeyer who "was always the one with the phone." Rachel Burleson testified that she is appellant and Beckemeyer's friend and former coworker. Burleson stated that she was once doing laundry at appellant and Beckemeyer's house when Beckemeyer, using appellant's phone while he was elsewhere, showed her "child porn of a kid tied up."
The jury found appellant guilty on each count. On March 9, 2022, a bench trial on punishment commenced. The entire reporter's record of the punishment phase of trial spans six pages. The State submitted a copy of a deferred adjudication order in a separate criminal cause involving appellant and then rested. Appellant's counsel informed the court that appellant would rely on the presentence investigation report (PSI) and then rested. The trial court took a few minutes to review the PSI and then asked for closing arguments. Appellant's counsel simply stated that the PSI "contains what [he] had hoped for, for the best, so [the defense] would ask [the court] to do that." The State argued that while appellant was eligible for probation, the nature of the images depicted were abhorrent, and to protect the community, it requested the maximum sentence of ten years' imprisonment on each count. The State also reminded the trial court that it filed a motion to cumulate appellant's sentences.
The trial court sentenced appellant to ten years' imprisonment on each count and then requested a responsive argument from appellant on the State's motion to cumulate. Appellant's counsel stated that "on the scale of the worst one in the world and . . . the lesser" the images here were "not toward the worst end." In response, the State argued that minor children being sexually assaulted was quite serious and that appellant has shown "no remorse." The trial court granted the State's motion to cumulate and concluded trial.
On March 23, 2022, appellant moved for a new trial arguing, in part, that his trial counsel was ineffective for failing to present any mitigation evidence during the punishment phase of trial. On May 20, 2022, the trial court heard arguments on appellant's motion at which appellant presented four witnesses who testified that they were willing to testify on appellant's behalf but were never asked to do so.
Paula Barnhart testified that she is appellant's mother, was present at trial, and was never asked to testify on her son's behalf. She stated that if she were given the opportunity to testify, she would have told the court that appellant is a great person, a hard worker, and a good Christian. Ervin, who testified during the guilt-innocence phase of trial, testified that she would have informed the trial court that appellant was a hard worker and an amazing person who would do anything for anybody, and she allowed her children to work for him while he managed a Pizza Hut restaurant. McClain, who testified during the guilt-innocence phase of trial, testified that she had known appellant for nearly fifty years. She stated that appellant was "[f]un-loving, very family-oriented, a great person, [and] kind." She informed the trial court that she stayed at trial for the punishment phase, that she was willing to testify for mitigation purposes, but trial counsel never spoke with her. Marilyn Biggs testified that she and her husband were appellant's family friends. She testified that appellant worked hard, took care of his aunt, and has a huge heart. Biggs believed that appellant had made some poor choices about who he associates with, but that he was a "good man and [has] a good heart," and he is "an asset to society."
Appellant testified that he was neither aware nor told that he could testify during the punishment phase of trial but would have informed the trial court about his work history, his faith, and his completion of the Celebrate Recovery program. Appellant testified that he also would have noted that while in jail awaiting trial, he "wrote a sermon and preached to about ten other men" every day. He testified that he would have consented and "pa[id] any price" to undergo a psychosexual evaluation but was never asked to. He stated that his trial counsel never spoke to him about mitigation evidence or investigated whether any existed.
Appellant's trial counsel testified at the new trial hearing that he neither investigated nor presented mitigation evidence at the punishment phase of trial. He stated that he spoke to appellant's friends and family only after trial began. Counsel mistakenly asserted that appellant testified during the punishment phase, and he thought appellant "did a really good job." When asked whether, in a possession of child pornography case, it is counsel's strategy to "just do nothing at the punishment phase," counsel responded:
Well, by then it's too late. I mean, there's nothing to do. This is a skillet shot for the prosecution. I mean, . . . there's nothing you can really say at this point. Not only is he a child pornographer, he's a lying child pornographer. And if you call . . . character witnesses to say, well, he's a really fine fellow, you're going to backfire. But, I mean, he got the max anyway, so what difference does it make?
After closing arguments by both sides, the trial court denied appellant's motion for new trial. This appeal followed.
When "a defendant presents an ineffective-assistance claim to the trial court in a motion for new trial, a reviewing appellate court analyzes the ineffectiveness claim as a challenge to the denial of the defendant's motion for new trial." Young v. State, 591 S.W.3d 579, 603 (Tex. App.-Austin 2019, pet. ref'd). We review these challenges under an abuse of discretion standard. Id.; cf. State v. Johnson, 663 S.W.3d 776, 784 (Tex. App.-Dallas 2021,...
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