Beulah Packwood, Individually and as Representative for Sydney Packwood, Deceased v. Touchstone Communities, Inc., and Care Inn Properties, Inc.--Appeal from 6th District Court of Fannin County

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Laws-info.com » Cases » Texas » 6th District Court of Appeals » 2007 » Beulah Packwood, Individually and as Representative for Sydney Packwood, Deceased v. Touchstone Communities, Inc., and Care Inn Properties, Inc.--Appeal from 6th District Court of Fannin County

State: Texas

Court: Texas Northern District Court

Docket No: 06-07-00020-CV

Case Date: 10/05/2007

Plaintiff: Bennedetha Buckjune

Defendant: State of Texas--Appeal from 217th District Court of Angelina County

Preview:Bennedetha Buckjune v. State of Texas--Appeal from 217th District Court of Angelina County
Opinion filed May 1, 2008 Opinion filed May 1, 2008 In The Eleventh Court of Appeals __________ Nos. 11-06-00304-CR & 11-06-00305-CR ________ BENNEDETHA BUCKJUNE, Appellant V. STATE OF TEXAS, Appellee On Appeal from the 217th District Court Angelina County, Texas Trial Court Cause Nos. 25,696 & 25,726 MEMORANDUMOPINION The jury convicted Bennedetha Buckjune of six counts of aggravated assault, one count of injury to a child, four counts of aggravated sexual assault of a child, and two counts of sexual assault of a child. The trial court assessed punishment at seventy-five years confinement on the injury to a child conviction and on each of the aggravated sexual assault convictions and at twenty years confinement on each of the aggravated assault convictions and on each of the sexual assault convictions. The trial court ordered that the sentences run concurrently. We affirm.

Background In Cause No. 25,696,[1] appellant was indicted for six counts of aggravated assault (Counts I, II, III, VII, VIII, and IX) and three counts of injury to a child (Counts IV, V, and VI). In Cause No. 25,726,[2] appellant was indicted for four counts of aggravated sexual assault of a child (Counts I, II, V, and VI) and two counts of sexual assault of a child (Counts III and IV). In Cause No. 25,696, the victims of the offenses were appellant=s two stepdaughters. The indictment in Cause No. 25,696 referred to appellant=s stepdaughters by their real names. Appellant=s two stepdaughters were also victims of four of the sexual assault offenses (Counts I through IV) in Cause No. 25,726. The indictment in Cause No. 25,726 identified appellant=s stepdaughters as Jane Doe and Jane Doe II. Appellant=s daughter was a victim of two of the sexual assault offenses (Counts V and VI) in Cause No. 25,726. The indictment in Cause No. 25,726 referred to appellant=s daughter as Jane Doe III. In this opinion, we will refer to the victims as Jane Doe, Jane Doe II, and Jane Doe III. Cause No. 25,696 and Cause No. 25,726 were tried together. At the time of trial, Jane Doe was fourteen years old,
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Jane Doe II was fifteen years old, and Jane Doe III was eleven years old. After the evidence was concluded, the State dismissed Counts IV and V of the indictment in Cause No. 25,696. The jury found appellant guilty of the seven remaining counts in Cause No. 25,696 and all six counts in Cause No. 25,726. Issues on Appeal Appellant does not challenge the sufficiency of the evidence to support her conviction. Appellant presents two issues for review. In her first issue, appellant complains of jury charge error. Specifically, she contends that the trial court erred in charging Counts I and II in Cause No. 25,726 as separate offenses because those counts alleged the same offense for double jeopardy purposes. Appellant further contends that, as a result of the charge error, the jury convicted her twice for the same offense. In her second issue, appellant contends that she received ineffective assistance of counsel at trial.

Double Jeopardy Claim Appellant argues that she was convicted twice for the same offense in violation of the prohibition against double jeopardy. Counts I and II of the indictment in Cause No. 25,726 charged appellant with aggravated sexual assault of Jane Doe. The indictment alleged in Count I that appellant, on or about March 11, 2005, Adid then and there intentionally or knowingly cause the mouth of Jane Doe (pseudonym), a child who was then and there younger than 14 years of age and not the spouse of [appellant], to contact the sexual organ of [appellant].@ The indictment alleged in Count II that appellant engaged in the same type of conduct with Jane Doe on or about May 14, 2005. The indictment alleged in Count VI that appellant, on or about May 5, 2005, Adid then and there intentionally or knowingly cause the mouth of Jane Doe III (pseudonym), a child younger than 14 years of age and not the spouse of [appellant], to contact the sexual organ of [appellant].@ To support her double jeopardy argument, appellant cites the testimony of Jane Doe III. Jane Doe III=s testimony was sufficient to establish that appellant engaged in the conduct described in Count VI on one occasion. Jane Doe III testified that appellant made her lick appellant=s private part. Jane Doe III said that appellant made her engage in this conduct once, twice, or three times. Because Jane Doe III=s testimony did not establish that appellant made her engage in this conduct more than once, appellant asserts that the trial court erred in instructing the jury on Counts I and II. However, Jane Doe was the victim of the offenses alleged in Counts I and II. Jane Doe=s testimony was sufficient to establish that appellant engaged in the conduct described in Counts I and II on multiple occasions. Specifically, Jane Doe testified that appellant made her touch appellant=s Aprivate@ with her mouth. Jane Doe also testified that appellant required her to perform oral sex on appellant about once a week.

The State proved that appellant sexually assaulted Jane Doe on multiple occasions as alleged in Counts I and II of the indictment. A person who commits multiple discrete sexual assaults against the same victim may be convicted and punished for each separate act. Vick v. State, 991 S.W.2d 830, 833 (Tex. Crim. App. 1999); Vernon v. State, 841 S.W.2d 407, 410 (Tex. Crim. App. 1992); Barnes v. State, 165 S.W.3d 75 (Tex. App.CAustin 2005, no pet.). Therefore, appellant could have been convicted and punished for each separate act of sexual assault that she committed against Jane Doe. Appellant=s conviction in Counts I and II did not violate the prohibition against double jeopardy. We overrule appellant=s first issue. Effectiveness of Counsel Appellant contends that she was denied effective assistance of counsel at trial for two reasons: (1) her trial counsel failed to request a severance of the offenses and (2) her trial counsel failed to object to the substance and/or form of the indictments. In order for appellant to establish that she did not receive effective assistance of counsel at trial, she must show that her counsel=s performance was deficient because it fell below the objective standard of professional norms. Wiggins v. Smith, 539 U.S. 510, 521 (2003); Strickland v. Washington, 466 U.S. 668, 690 (1984); Andrews v. State, 159 S.W.3d 98, 101 (Tex. Crim. App. 2005); Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). In
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addition, she must show that this deficient performance prejudiced her defense. Wiggins, 539 U.S. at 521; Strickland, 466 U.S. at 692; Andrews, 159 S.W.3d at 101; Bone, 77 S.W.3d at 833. Our review of defense counsel=s representation is highly deferential and presumes that counsel=s actions fell within the wide range of reasonable and professional assistance; and appellant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Bone, 77 S.W.3d at 833; Stafford v. State, 813 S.W.2d 503, 508-09 (Tex. Crim. App. 1991). Rarely will the trial record contain sufficient information to permit a reviewing court to fairly evaluate the merits of such a serious allegation. Bone, 77 S.W.3d at 833. In a majority of cases, the record on direct appeal is simply undeveloped and cannot adequately reflect the failings of trial counsel. Id.

The record is silent as to why appellant=s trial counsel did not request a severance of the offenses or object to the indictments. Appellant=s trial counsel may have elected not to request a severance of the offenses as part of a sound trial strategy. For example, appellant=s trial counsel may have believed that, had the offenses been severed, the trial court would have stacked appellant=s sentences on the offenses. See Tex. Penal Code Ann. ' 3.04(b) (Vernon Supp. 2007). Thus, appellant=s trial counsel=s decision not to request a severance may have been based on the reasonable trial strategy of attempting to avoid a stacking of appellant=s sentences. There is nothing in the record to show that appellant=s trial counsel=s decisions not to request a severance and not to object to the indictments were anything other than sound trial strategy. Appellant has failed to overcome the presumption that her trial counsel=s conduct was reasonable and professional. Bone, 77 S.W.3d at 833. Additionally, the record does not demonstrate that appellant=s trial counsel=s failure to request a severance or object to the indictments prejudiced appellant=s defense. We overrule appellant=s second issue. This Court=s Ruling We affirm the judgments of the trial court. TERRY McCALL JUSTICE May 1, 2008 Do not publish. See Tex. R. App. P. 47.2(b). Panel consists of: Wright, C.J., McCall, J., and Strange, J.

[1]11-06-00304-CR. [2]11-06-00305-CR.

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