Bolinger v. State

ROY BOLINGER, Appellant v. THE STATE OF TEXAS, Appellee

NO. 14-18-00931-CR

State of Texas in the Fourteenth Court of Appeals

January 28, 2021

On Appeal from the 174th District Court Harris County, Texas

Trial Court Cause No. 1337329

MEMORANDUM OPINION

Appellant was convicted of continuous sexual abuse of a child and sentenced to life imprisonment. Appellant raises three issues on appeal. In his first issue appellant contends that his counsel rendered ineffective assistance by failing to (1) object to evidence of extraneous offenses used to impeach appellant on cross-examination, (2) file and argue a motion in limine on the extraneous offenses, (3) file a Theus motion, and (3) request a limiting instruction. In his second issue appellant argues that the trial court erred in denying appellant's motion to quash his indictment based on the denial of appellant's right to a "grand jury indictment" under the Texas Constitution. In his third issue appellant contends that he was subjected to cruel and unusual punishment when he was forced to listen to improper victim allocution after he had been sentenced. We affirm.

I. BACKGROUND

The State indicted appellant for continuous sexual abuse of a child. The State alleged that appellant:

[D]uring a period of time of thirty or more days in duration, commit[ed] at least two acts of sexual abuse against a child younger than fourteen years of age, including an act constituting the offense of aggravated sexual assault of a child, committed against [complainant] on or about September 1, 2007, and an act constituting the offense of aggravated sexual assault of a child, committed against [complainant] on or about June 30, 2009, and [appellant] was at least seventeen years of age at the time of the commission of each of those acts.

The State filed a notice that it would use extraneous offenses and prior convictions to impeach appellant's credibility under Rules of Evidence 404 and 609 and Articles 37.07 and 38.37 of the Code of Criminal Procedure. Appellant filed a motion in limine requesting that the State and trial court not mention any of appellant's prior convictions, probated sentences, deferred adjudications, or extraneous or unadjudicated criminal or bad acts in the presence of the jury without first obtaining a ruling from the trial court outside of the presence of the jury. The trial court did not sign an order on appellant's motion in limine. However, prior to voir dire, appellant's counsel stated that the trial court "heard [appellant's] motion in limine. And I don't believe it's on the record, but that part was granted with the caveat that the State would change that one question." The trial court acknowledged that the State would "rephrase [its] question as opposed to stating that 'it is a known study,' 'studies have shown,' yes, that's correct."

Appellant testified in his defense at trial. On cross-examination, the State elicited the following testimony:

Q. All right, Mr. Bolinger. Let's start with things that we can agree are true.

First of all, on August 9, 1995 . . . you were convicted of misdemeanor theft by check, correct?

A. Yes.

Q. On November 26^th of 1996 . . . you were convicted of misdemeanor possession of marijuana, correct?

A. Yes.

Q. Also on November 26^th of 1996 . . . you were convicted of the misdemeanor offense of theft, correct?

A. That's correct.

Q. And on June 16^th of 1997 . . . you were convicted of the felony offense of burglary of a habitation, correct?

A. That's correct.

. . .

Q. On October 4^th of 2010 . . . you were convicted of the misdemeanor offense of assault of a family member, right?

A. That's correct.

Appellant's counsel did not object to the admission of any of appellant's prior convictions and did not immediately request a limiting instruction regarding this testimony. A limiting instruction was included in the jury charge.

On further questioning by his counsel, appellant testified that he "owned up" to his criminal history. In closing argument, appellant's counsel argued that the State "went through [appellant's] criminal history. [Appellant] never denied that. He owned up to his mistakes . . . but he is denying this one. He is fighting thisone." The only prior conviction the State mentioned during closing argument was appellant's conviction for assault of a family member.¹

The jury found appellant guilty of continuous sexual abuse of a child and sentenced him to life in prison. Immediately after sentencing, the State notified the trial court that it had two victim impact statements, one from the complainant and one from the complainant's mother. Appellant objected to both statements being read because it is "a violation to do any more than just [the complainant] under 56.02 of the Code of Criminal Procedure. . . . forcing [appellant] . . . to sit here and listen to more than one statement is unnecessary, it's cruel, it's unusual punishment." Appellant argued that the rules allow the complainant to give a statement but objected to complainant's mother also giving a statement. The trial court determined that the complainant could give a statement and her mother was permitted to give a statement as well because the complainant was a minor at the time of the offense. Appellant did not file a motion for new trial.

II. INEFFECTIVE ASSISTANCE

In his first issue appellant contends that his counsel rendered ineffective assistance by allowing the State to introduce otherwise inadmissible prior convictions to impeach appellant's testimony when counsel failed to object, failing to urge or secure a ruling on a previously filed motion in limine, failing to file a "Theus motion," and failing to request a contemporaneous limiting instruction when the State offered the prior convictions. Appellant argues that because credibility was a key issue, trial counsel's deficiency caused him prejudice.

A. Legal Principles

To prevail on a claim of ineffective assistance, an appellant must show that (1) counsel's performance was deficient by falling below an objective standard of reasonableness and (2) counsel's deficiency caused the appellant prejudice—there is a probability sufficient to undermine confidence in the outcome that but for counsel's errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687-88 (1984); Perez v. State, 310 S.W.3d 890, 892-93 (Tex. Crim. App. 2010). An appellant must satisfy both prongs by a preponderance of the evidence. Perez, 310 S.W.3d at 893.

Generally, a claim of ineffective assistance may not be addressed on direct appeal because the record usually is not sufficient to conclude that counsel's performance was deficient under the first Strickland prong. See Andrews v. State, 159 S.W.3d 98, 103 (Tex. Crim. App. 2005); see also Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005) ("A reviewing court will rarely be in a position on direct appeal to fairly evaluate the merits of an ineffective assistance claim."). Ordinarily, trial counsel should be afforded an opportunity to explain counsel's actions "before being denounced as ineffective." Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003). A defendant is not entitled to "errorless or perfect counsel whose competency of representation is to be judged by hindsight." Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006).

"Review of counsel's representation is highly deferential, and the reviewing court indulges a strong presumption that counsel's conduct fell within a wide range of reasonable representation." Salinas, 163 S.W.3d at 740. "To overcome the presumption of reasonable professional assistance, any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness." Id. (quotation omitted).

It is the "rare case" when an appellant raises a claim of ineffective assistance on direct appeal and the record is sufficient to make a decision on the merits. Andrews, 159 S.W.3d at 103. We must presume that trial counsel's performance was adequate unless the challenged conduct was "so outrageous that no competent attorney would have engaged in it." State v. Morales, 253 S.W.3d 686, 696-97 (Tex. Crim. App. 2008) (quoting Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005)). "The record must demonstrate that counsel's performance fell below an objective standard of reasonableness as a matter of law, and that no reasonable trial strategy could justify counsel's acts or omissions, regardless of [counsel's] subjective reasoning." Lopez v. State, 343 S.W.3d 137, 143 (Tex. Crim. App. 2011). If there is a potential reasonable trial strategy that counsel could have been pursuing, we cannot conclude that counsel performed deficiently. See Andrews, 159 S.W.3d at 103.

B. Admissibility of Prior Convictions

Appellant argues that none of his prior convictions were admissible and, therefore, defense counsel could not have had a reasonable trial strategy for failing to object. The State argues that the prior convictions were admissible and that defense counsel had a reasonable trial strategy for failing to object by using "the criminal history evidence elicited by the State in appellant's favor when he successfully argued that appellant pled guilty in each of the prior convictions because he was guilty, but he pled not guilty in [this case] because he had not engaged in any sexual abuse. Appellant's attorney attempted the same strategy in the second trial that had worked in the first, albeit with less success the second time around . . . ."

Admitting to prior convictions can be a matter of sound trial strategy if the prior convictions are admissible. Donald v. State, 543 S.W.3d 466, 481 (Tex.App.—Houston [14th Dist.] 2018, no pet.); see Huerta v. State, 359 S.W.3d 887, 891 (Tex. App.—Houston [14th Dist.] 2012, no pet.). It is a common strategy to admit a prior admissible conviction because it "removes the sting from an attack that would otherwise come from ...