Williams v. State

JONATHAN WILLIAMS, Appellant v. THE STATE OF TEXAS, Appellee

No. 06-19-00272-CR

Court of Appeals Sixth Appellate District of Texas at Texarkana

Date Submitted: October 13, 2020

December 21, 2020

On Appeal from the 202nd District Court Bowie County, Texas

Trial Court No. 18F0287-202

Before Morriss, C.J., Burgess and Stevens, JJ.

Memorandum Opinion by Justice Burgess MEMORANDUM OPINION

After C.N., who was twenty-six at the time of trial, testified about various acts of sexual abuse that Johnathan Williams inflicted on her when she was a child, a Bowie County jury convicted Williams of aggravated sexual assault of a child and two counts of indecency with a child by contact. The jury assessed a sentence of thirty years' imprisonment and a $10,000.00 fine for the aggravated assault and fifteen years' imprisonment for each indecency conviction.

On appeal, Williams complains of prosecutorial misconduct and ineffective assistance of counsel. Williams also argues that the trial court erred by cumulating his sentences because the "total term of confinement is cruel and unusual under the Eighth Amendment." We find that Williams failed to preserve his prosecutorial misconduct complaints and cannot show ineffective assistance of counsel by this silent record. We also find that Williams failed to preserve his sentencing complaints. However, we modify the trial court's judgments to correct the spelling of Williams's name. As modified, we affirm the trial court's judgments.

I. Williams Failed to Preserve His Prosecutorial Misconduct Complaints

At trial, C.N. testified that, when she was seven or eight, Williams began taking naked photographs of her. She told the jury that, when she was a child, Williams "would put his hands on [her] breasts," touch and "put[] his fingers into [her] vagina," and "put [her] hand on his penis." According to C.N., in addition to these acts happening on separate occasions, she remembered one episode where they occurred all at once. C.N.'s friend, K.E., testified about extraneous acts of sexual abuse by Williams. C.N. and K.E. were adults at the time of trial.

Williams testified in his defense at trial, denied guilt, claimed he was never alone with C.N., and accused her and K.E. of "making [the allegations] up." Williams acknowledged that he heard the State's expert, Missy Davison, program director for the Texarkana Children's Advocacy Center, testify as to the stages of grooming shown by C.N.'s and K.E.'s testimony, but told the jury he believed that C.N. and K.E. "did some research" on the topic before reporting Williams's actions to make him look like a person who groomed children. After Williams testified that he did not know why C.N. and K.E. were fabricating allegations against him, the State asked the following question:

Okay. For this jury to believe -- let's just start with, we've proven you guilty in this courtroom. I would never stand up and rest on behalf of this county and the State of Texas unless I had every element of the offense met, and we have. So at that point, it switches . . . and you-all can put on your defense, which you're doing now. So for you to put on some evidence to sort of rebut what I have put on, you're going to have to have a motive, man. You're going to have to tell me and this jury and frankly everybody in here why these women would come in here and lie.

(Emphasis added).

The State questioned Williams about examples from the testimony showing that Williams's actions fell into different stages of grooming, but Williams denied grooming the children. The State asked Williams, "Okay. That is why people like Ms. Davison come and educate the jury, because people like you are so predictable. Does that make sense to you?" (Emphasis added). Williams replied, "That makes sense, but I didn't do any of those things." After Williams could not explain why "two college-education women with careers" may have made up allegations against him, the State asked,

All right. You have to understand the burden of proof on the State of Texas is beyond a reasonable doubt. If there's proof in the record that has gone unimpeached, there's proof in the record of your guilt, these people are about to walk out that back door in just a few seconds and decide what's going to happen with the rest of your life, and all you've got to offer is I don't know why they might have done it?

(Emphasis added). Williams responded, "I do not know."

In his first point of error, Williams argues that the prosecutor interjected her personal opinions into the case when stating, during Williams's cross-examination, (1) "[W]e've proven you guilty in this courtroom. I would never stand up and rest on behalf of this county and the State of Texas unless I had every element of the offense met, and we have," and (2) "There's a reason that experts like Ms. Davison know the stages of grooming because people like you do the same thing over and over. . . . That is why people like Ms. Davison come and educate the jury, because people like you are so predictable." Williams also argues that the prosecutor misled the jury when she stated, "If there's proof in the record that has gone unimpeached, there's proof in the record of your guilt," which Williams maintains "sought to instill the erroneous, improper idea 'that only positive testimony could engender disbelief of' C.N." Williams argues that this conduct denied him a fair trial, constituted government interference that deprived him of due process, and violated Rules 3.04 and 3.06 of the Texas Rules of Professional Conduct. The State contends that any complaint regarding prosecutorial misconduct has not been preserved for our review. We agree.

"To preserve a prosecutorial misconduct complaint, a defendant must generally make a timely and specific objection, request an instruction to disregard the matter improperly placed before the jury, and move for a mistrial." Johnson v. State, 432 S.W.3d 552, 561 (Tex. App.—Texarkana 2014, pet. ref'd) (citing Penry v. State, 903 S.W.2d 715, 764 (Tex. Crim. App. 1995) (per curiam); see TEX. R. APP. P. 33.1(a)). This is because "[t]he right to a trial untainted by improper jury argument is forfeitable," and such "[r]ights are usually forfeited by a failure to exercise them." Hernandez v. State, 538 S.W.3d 619, 622 (Tex. Crim. App. 2018) (citing Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996); Marin v. State, 851 S.W.2d 275, 278 (Tex. Crim. App. 1993), overruled on other grounds by Cain v. State, 947 S.W.2d 262, 264 (Tex. Crim. App. 1997)). As a result, "[f]ailure to insist upon a [forfeitable] right . . . results in the loss of the claim" since "[t]he trial judge 'has no duty to enforce forfeitable rights unless requested to do so.'" Id. (quoting Marin, 851 S.W.2d at 279).

Here, Williams failed to object to any of the statements made by the prosecutor. "[A]n important consequence of [this] failure to petition enforcement of his forfeitable rights in the trial court [was] that no error attends failure to enforce them and none is presented for review on appeal." Id. (quoting Marin, 851 S.W.2d at 279). While Williams argues that we should apply the fundamental error doctrine in light of the prosecutor's particularly egregious comments, the Texas Court of Criminal Appeals has written that "[e]ven an inflammatory jury argument is forfeited if the defendant does not pursue his objection to an adverse ruling." Id. at 622-23 (citing Estrada v. State, 313 S.W.3d 274, 303 (Tex. Crim. App. 2010) ("[E]ven assuming prosecutor's argument was so egregious that instruction to disregard would be ineffectual, defendant 'should have moved for a mistrial to preserve this error.'")).

We find that Williams failed to preserve his first point of error for our review. As a result, we overrule it.¹

II. Williams Cannot Show Ineffective Assistance of Counsel from this Silent Record

In nine separate points of error, Williams complains of various acts and omissions that he believes constituted ineffective assistance of counsel. After reviewing each complaint, we conclude that Williams cannot demonstrate that his counsel rendered ineffective assistance based on this silent record.

A. Standard of Review

"As many cases have noted, the right to counsel does not mean the right to errorless counsel." Lampkin v. State, 470 S.W.3d 876, 896 (Tex. App.—Texarkana 2015, pet. ref'd) (citing Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006)). "In order to prevail on a claim of ineffective assistance of counsel, the defendant must satisfy the two-pronged test set forth in Strickland . . . ." Id. (citing Strickland, 466 U.S. at 687-88; Ex parte Imoudu, 284 S.W.3d 866, 869 (Tex. Crim. App. 2009) (orig. proceeding)). "A failure to make a showing under either prong defeats a claim for ineffective assistance." Id. at 897 (citing Rylander v. State, 101 S.W.3d 107, 110-11 (Tex. Crim. App. 2003)).

The first prong requires a showing "that counsel's representation fell below an objective standard of reasonableness." Strickland, 466 U.S. at 688. This requirement can be difficult to meet since there is "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689. As a result, the Texas Court of Criminal Appeals has said that "[t]rial counsel 'should ordinarily be afforded an opportunity to explain his actions before being'" found ineffective. Menefield v. State, 363 S.W.3d 591, 593 (Tex. Crim. App. 2012).

When an appellate record is silent on why trial counsel failed to take certain actions, the appellant has "failed to rebut the presumption that trial counsel's decision was in some way—be it conceivable or not—reasonable." Mata v. State, 226 S.W.3d 425, 431 (Tex. Crim. App. 2007); see Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999). This is because allegations of ineffectiveness "must be firmly founded in the record." Bone v. State, 77 S.W.3d 828, 833n.13 (Tex. Crim. App. 2002) (quoting Thompson v. State...