Dominic Kevin Ward v. The State of Texas--Appeal from 124th District Court of Gregg County

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Laws-info.com » Cases » Texas » 6th District Court of Appeals » 2006 » Dominic Kevin Ward v. The State of Texas--Appeal from 124th District Court of Gregg County

State: Texas

Court: Texas Northern District Court

Docket No: 06-06-00042-CR

Case Date: 10/13/2006

Plaintiff: Kenneth Homer Koch, Jr.

Defendant: The State of Texas--Appeal from Criminal District Court of Jefferson County

Preview:Jimmy Ray McDaniel v. The State of Texas--Appeal
from 238th District Court of Midland County
Opinion filed November 30, 2006
Opinion filed November 30, 2006
In The
Eleventh Court of Appeals
No. 11-05-00284-CR
JIMMY RAY MCDANIEL, Appellant
V.
STATE OF TEXAS, Appellee
On Appeal from the 238th District Court
Midland County, Texas
Trial Court Cause No. CR30289
O P I N I O N
Jimmy Ray McDaniel appeals his conviction by a jury of two counts of the offense of aggravated sexual assault of a
child. The jury assessed his punishment on each count at thirty years in the Texas Department of Criminal Justice,
Institutional Division. The trial court ordered that the sentences be served consecutively. McDaniel contends in two
issues that the evidence is legally and factually insufficient to support his conviction and that he was denied the
effective assistance of counsel when his attorney failed to call witnesses at the punishment phase of his trial. We
affirm.
McDaniel urges in issue one that the evidence is legally and factually insufficient to support his conviction. In a legal
sufficiency review, we view all of the evidence in the light most favorable to the verdict and then determine whether a
rational trial of fact could have found the essential elements of the crime beyond a reasonable doubt. See Jackson v.
Virginia, 443 U.S. 307 (1979). To determine if the evidence is factually sufficient, the appellate court reviews all of the
evidence in a neutral light. Watson v. State, 2006 WL 2956272, at *8 (Tex. Crim. App. Oct. 18, 2006) (overruling in
part Zuniga v. State, 144 S.W.3d 477 (Tex. Crim. App. 2004)); Johnson v. State, 23 S.W.3d 1, 10-11 (Tex. Crim. App.
2000); Cain v. State, 958 S.W.2d 404, 407-08 (Tex. Crim. App. 1997); Clewis v. State, 922 S.W.2d 126, 129 (Tex.
Crim. App. 1996). Then, the reviewing court determines whether the evidence supporting the verdict is so weak that
the verdict is clearly wrong and manifestly unjust or whether the verdict is against the great weight and preponderance
of the conflicting evidence. Watson, 2006 WL 2956272, at *8; Johnson, 23 S.W.3d at 10-11.
The indictment alleged in Count I that on or about March 1, 2002, McDaniel intentionally and knowingly caused the
complainant=s sexual organ to contact his when she was younger than fourteen and not his spouse. In Count II, the
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indictment alleged that on that same date McDaniel intentionally and knowingly caused the penetration of the
complainant=s sexual organ by his finger when she was a child younger than fourteen and not his spouse.
The seven-year-old complainant testified that an old babysitter named Ray, whom she identified as McDaniel, had
touched her on one of the private places that are not supposed to be touched. She said he touched her with his private
part in her front and back private almost every time he came to babysit. She insisted that he put his finger and his
private part into her private part. She related that he did these things when she was three years old.
Ilda Gonzalez, the complainant=s mother, testified that the complainant did not tell her that McDaniel had done
anything to her until the day after her sixth birthday. She said the complainant told her that McDaniel had been
touching her private with his fingers. She said she examined the complainant=s private and that it appeared red and
opened. She related that later the complainant had told her that McDaniel had put his fingers in her private. She
testified that the complainant had also said McDaniel put his private into her private. Gonzalez acknowledged that the
complainant had not told her at the time it happened.
Dr. Thomas Allen testified that he works at the Midland Memorial Hospital Emergency Room as the Director of the
Sexual Assault Nurse Examiner Program. He said the complainant indicated during her examination that Aa long, long
time ago@ someone had touched her privates with his hand and that that someone touched her privates with his
private. He related that at the eight o=clock position of the hymen there was a thinning and a tear that had healed. He
confirmed that there was evidence the hymen had been broken. He said that the examination indicated that there had
been some kind of penetration into the vaginal area.
Jessica Dee-Ann Morgan Vasquez, McDaniel=s sister, testified that the time frame in which her brother would have
had access to the complainant was from December 2001 to the end of 2002.
Randall Upton, an employee with the Midland Rape Crisis and Children=s Advocacy Center, testified that the
complainant had told him that on more than two occasions McDaniel would pull her panties and shorts down before
putting his private into her private.
Johnny Rodriguez testified that he had previously lived with Vasquez, McDaniel=s sister. He recalled the last day that
McDaniel would have had access to the complainant would have been August 2002.
We hold that from this evidence a rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt and that the evidence is not so weak that the verdict is clearly wrong and manifestly unjust and that
the verdict is not against the great weight and preponderance of the conflicting evidence. Consequently, the evidence is
legally and factually sufficient to support the conviction on both counts. As we best understand McDaniel=s argument,
it is that the evidence is insufficient because there was no evidence that he caused the trauma shown by the physical
evidence. While he acknowledges that the complainant testified concerning his penetration of her private parts, he
urges that the evidence is insufficient because of the length of time between the assault and the child=s outcry. He
presents no authority in support of his argument, and we are not aware of any. We overrule issue one.
McDaniel insists in issue two that he was denied the effective assistance of counsel when his trial attorney failed to call
witnesses at the punishment stage of the trial. We apply a two-pronged test to ineffective-assistance-of-counsel claims.
Wiggins v. Smith, 539 U.S. 510 (2003); Strickland v. Washington, 466 U.S. 668, 687 (1984); Thompson v. State, 9
S.W.3d 808, 812 (Tex. Crim. App. 1999). First, an appellant must show that his counsel=s performance was deficient;
second, an appellant must show the deficient performance prejudiced the defense. Wiggins, 539 U.S. at 521;Strickland,
466 U.S. at 687.
In evaluating the effectiveness of counsel under the first prong, we look to the totality of the representation and the
particular circumstances of each case. Thompson, 9 S.W.3d at 813. A defendant must demonstrate that counsel=s
representation fell below an objective standard of reasonableness and prevailing professional norms at the time of the
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alleged error. Wiggins, 539 U.S. at 521; Strickland, 466 U.S. at 688-89. A[C]ounsel is strongly presumed to have
rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.@
Strickland, 466 U.S. at 690. An allegation of ineffective assistance must be firmly founded in the record, and the
record must affirmatively demonstrate the alleged ineffectiveness. Thompson, 9 S.W.3d at 814. Our scrutiny of
counsel=s performance must be highly deferential, and every effort must be made to eliminate the distorting effects of
hindsight. Strickland, 466 U.S. at 689.
The second 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 whose result is reliable. Id. at 687. In other words, appellant must show there is a
reasonable probability that, but for counsel=s unprofessional errors, the result of the proceeding would have been
different. Id. at 694. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id.
The ultimate focus of our inquiry must be on the fundamental fairness of the proceeding whose result is being
challenged. Id. at 697.
Under normal circumstances, the record on direct appeal will not be sufficient to show that counsel=s representation
was so deficient and so lacking in tactical or strategic decision making as to overcome the presumption that counsel=s
conduct was reasonable and professional. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). Rarely will the
record contain sufficient information to permit a reviewing court to fairly evaluate the merits of such a serious
allegation. Id.
We first note that, as McDaniel acknowledges, his trial counsel did call McDaniel=s mother as a witness during the
punishment but did not call any other witnesses. Trial counsel did not testify in any post-trial proceeding. Further,
there is nothing else in the record to show that trial counsel=s choice not to call other witnesses during the punishment
phase of the trial was anything other than trial strategy. McDaniel has failed to overcome the presumption that trial
counsel=s conduct was reasonable and professional. Bone, 77 S.W.3d at 833.
McDaniel primarily relies on the case of Milburn v. State, 15 S.W.3d 267, 268 (Tex. App.CHouston [14th Dist.] 2000,
pet. ref=d). We find that case distinguishable because in that case no witnesses were called on the defendant=s behalf
at the punishment phase of the trial, although the record reflects that there were several witnesses available and reflects
what their testimony would have been. In the case at bar, there is nothing in the record to reflect that there were other
witnesses who could have been called or what their testimony would have been.
McDaniel also contends in his argument under this issue that his counsel was ineffective for failing to present any
evidence showing that if he were placed on community supervision he would be placed in a rigorous sexual offender
program or evidence regarding punishment alternatives such as the sexual offender treatment program. We first note
that the admissibility of such evidence is in question. See Brown v. State, 741 S.W.2d 453, 454-55 (Tex. Crim. App.
1987) (admission of evidence concerning terms and conditions of probation and manner of revocation allows an
escalating battle of experts, and its probative value would be far outweighed by the danger of prejudicing or confusing
the trier of fact); Najar v. State, 74 S.W.3d 82, 88 (Tex. App.CWaco 2002, no pet.) (such testimony might be helpful to
the jury in Atailoring the sentence@). We also note that there is nothing in the record concerning the availability or the
details of such a program. Nor is there evidence as to why counsel did not present such evidence at trial. That being
the case, this court has no basis upon which to hold that trial counsel=s conduct in failing to present such testimony
constituted ineffective assistance. We overrule issue two.
The judgment is affirmed.
PER CURIAM
November 30, 2006
Do not publish. See Tex. R. App. P. 47.2(b).
Panel consists of: Wright, C.J.,
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McCall, J., and Hill, J.[1]
[1]John G. Hill, Former Justice, Court of Appeals, 2nd District of Texas at Fort Worth sitting by assignment.
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