Davis, Don Richard v. State

In The

Court of Appeals

For The

First District of Texas

____________

NO. 01-01-00624-CR

____________

DON RICHARD DAVIS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 272nd District Court

Brazos County, Texas

Trial Court Cause No. 24,315-272

O P I N I O N

Appellant, Don Richard Davis, pled guilty before the jury to two counts of

aggravated sexual assault. The jury assessed punishment at 99 years in prison and a

fine of $10,000 on each count. We address (1) whether the statutory instruction

regarding parole and good-conduct time was unconstitutional as applied to appellant,

(2) whether trial counsel was ineffective for failing to object to two arguments by the

prosecutor and for failing to request a limiting instruction concerning the otherwise

inadmissible, underlying facts of an expert's opinion, and (3) whether the trial court

abused its discretion by allowing the prosecutor to question the defense psychologist

concerning sexually explicit letters written by appellant. We affirm.

Facts

On January 30, 1995, appellant sexually assaulted the complainant, a Texas

A&M co-ed, anally and orally at knife point, after having confronted the complainant

on campus. On May 4, 1995, appellant sexually assaulted another Texas A&M co-ed

in the same manner.

The Parole and Good-Conduct-Time Instruction

In his first issue presented for review, appellant contends article 37.07, section

(4)(a) of the Texas Code of Criminal Procedure is unconstitutional, as applied to him,

under the Due Process clause of the Fourteenth Amendment to the United States

Constitution. See U.S. Const. amend. XIV; Tex. Code Crim. Proc. Ann. art. 37.07,

§ 4(a) (Vernon Supp. 2002). Appellant objected at trial that the instruction did not

apply to him because he was not entitled to consideration for good-conduct time for

the offenses to which he had pled guilty.

Appellant acknowledges that this issue has been decided adversely to him in

Luquis v. State , 72 S.W.3d 355, 365-66, 368 (Tex. Crim. App. 2002) (holding

instruction not unconstitutional, for violating due process or due course of law, as

applied to defendant who is ineligible for good-conduct-time credit ). However,

appellant claims he fits within an exception noted in Luquis , which exception applies

when the record shows the jury was actually confused by the instruction. See id. at

366-67 . Appellant relies on a note from the jury asking the difference between

sentences of 99 years and life . See id . at 367 (suggesting note from jury might show

jurors' confusion). The note in this case indicates the jury's confusion regarding the

two sentences. The note does not show any confusion regarding appellant's

eligibility for good-conduct-time credit. Accordingly, we hold that the general rule

of Luquis , that the parole and good-conduct-time instruction is not unconstitutional

as applied, controls the disposition of this issue. See id. at 368 .

We overrule appellant's first issue presented for review.

Ineffective Assistance of Trial Counsel

In his second, third, and fifth issues presented for review, appellant contends

his trial counsel was ineffective for failing to object to two portions of the

prosecutor's closing argument and for failing to request a limiting instruction

concerning the underlying facts of an expert's opinion.

Standard of Review

To establish ineffective assistance of counsel, appellant must show (1)

counsel's representation fell below an objective standard of reasonableness and (2)

but for counsel's errors, the result of the proceedings would have been different.

Strickland v. Washington , 466 U.S. 668, 687 , 104 S. Ct. 2052, 2064 (1984).

Appellant must overcome the presumption that the challenged action might be

considered sound trial strategy. Id. , 466 U.S. at 689 , 104 S. Ct. at 2065 ; Thompson

v. State , 9 S.W.3d 808, 813-14 (Tex. Crim. App. 1999); Gamble v. State , 916 S.W.2d

92, 93 (Tex. App.--Houston [1st Dist.] 1996, no pet.). Rather than examining

counsel's isolated acts or omissions, we evaluate the totality of the representation

from counsel's perspective at trial and not in hindsight. Ex parte Welborn , 785

S.W.2d 391, 393 (Tex. Crim. App. 1990); Wilkerson v. State , 726 S.W.2d 542, 548

(Tex. Crim. App. 1986).

"Appellant has learned how to be a better rapist ."

In his second issue presented for review, appellant claims that, when the

prosecutor argued that appellant had learned how to be a better rapist , the prosecutor

invited the jury to speculate on matters outside the record. Appellant points out that

he had developed testimony from an Ohio special agent with the Federal Bureau of

Investigation that the agent knew of no sexual assault cases in the Cleveland area in

which appellant was a suspect.

In closing argument, counsel for appellant argued that, had appellant been a

suspect in any sexual-assault cases in Detroit or Cleveland, the jury would have heard

about it. The prosecutor then argued as follows:

As a matter of fact, we found out, of course, that the second rape

was being planned two weeks in advance. Remember that the second

rape was much more brutal than the first. Much more well planned

because it was in a much more secluded area than the first rape.

What does that tell you, ladies and gentlemen, about his ability to

become a better rapist? Don't you think he has learned how to become

a better rapist in six years? Think about that.

[Defense counsel] comes to you and says, "Well, we don't know

of any other evidence up in Cleveland, don't you think we would have

heard of that?" No, we won't. He knows to wipe DNA off. He's

probably not ejaculating in people's faces any more, right? He's [sic]

knows to cover their face now. He is not going to make the same

mistakes twice because he is a serial rapist.

(Emphasis added.) Trial counsel objected as follows, but solely to the character of

appellant as a serial rapist:

Trial Counsel: Excuse me, Judge, I'm going to object to the State

calling him serial rapist when they've only got two

cases of sexual assault. That doesn't make a serial

rapist.

The Court: State's response?

Prosecutor: Your Honor, serial rapist is more than one.

The Court: Objection overruled.

Appellant called trial counsel to testify at the hearing on appellant's motion for

new trial, which asserted trial counsel was ineffective. When asked to explain his

failure to object to the argument referring to appellant's having "learned how to be

a better rapist," trial counsel answered that he had had only two seconds to decide

whether to object, that the whole trial was a punishment hearing asking the jury for

a favor, that jurors do not like lawyers who object all the time, and that the prosecutor

had not objected to trial counsel's argument. Trial counsel conceded that the

prosecutor's argument was somewhat invited by trial counsel's own argument that

there was no evidence appellant had committed violent offenses in the last five or six

years. However, trial counsel testified that, in hindsight, he thought he should have

objected.

Appellant argues that the prosecutor's argument was outside the four

permissible areas of jury argument: (1) summation of the evidence; (2) reasonable

deductions from the evidence; (3) answer to argument of opposing counsel; and (4)

a plea for law enforcement. See Wilson v. State , 938 S.W.2d 57, 59 (Tex. Crim. App.

1996). Appellant also points out that the prosecutor had acknowledged during a pre-trial conference in chambers that he was unaware of any other sexual assaults

allegedly committed by appellant. Appellant argues that trial counsel's explanation

that he did not object so as not to alienate the jury does not ring true because trial

counsel did object to the serial-rapist remark immediately after not objecting to

remarks that appellant had learned how to be a better rapist. Appellant claims harm

from the maximum sentences assessed in cases in which appellant was eligible for

probation and thus should have received sentences somewhere in the low-to-middle

range.

The State contends that the prosecutor was responding to trial counsel's

argument that the jury would have heard about any further offenses had there been

any and was making reasonable deductions from the evidence that appellant had

learned from one offense to the next. Thus, the State contends, trial counsel was not

ineffective for not objecting because the argument was proper. In the alternative, the

State argues that appellant has not shown he was harmed by trial counsel's failure to

object.

Under the circumstances presented here , trial counsel's explanation for not

objecting is plausible, and the trial court could have accepted this explanation at the

hearing on appellant's motion for new trial. Appellant has not met his burden of

establishing deficient performance.

Accordingly, we overrule appellant's second issue presented for review.

Accusing Trial Counsel of Concealing the Truth

In his third issue presented for review, appellant contends his trial counsel was

ineffective for not objecting when the prosecutor struck at appellant over the

shoulders of his counsel by accusing trial counsel of concealing the truth. Appellant

places the argument in context by pointing out the lengthy negotiations that had taken

place concerning a pornographic magazine and eight pornographic letters that

appellant had written, but had not sent. These items were recovered during a search

of appellant's room. (1) As a result of these negotiations, the parties agreed that the

magazine would be admitted, but that the State would not use the letters to impeach

appellant. During the testimony of appellant's psychologist, however, the prosecutor

was allowed to use excerpts from the letters to impeach the psychologist.

In his closing argument, the prosecutor argued as follows:

Dr. Hughes got on the stand and she tried to kind of play around

and say, "He's a nice guy. I can do a treatment plan for him, minimize

his risk of reoffending." Then, ladies and gentlemen, we got ahold of

the records. We got ahold of her notes. And they weren't planning on

that. They weren't planning on us finding out that he told the

psychologist that no, he wasn't having fragmented thinking. He

wasn't in this haze of methamphetamines when he brutally raped Jane

Doe 1 and Jane Doe 2. He gave her a play-by-play, minute-by-minute,

second-by-second [account] of both rapes.

(Emphasis added.)

When trial counsel was asked if he had any trial strategy for not objecting to

the above-emphasized argument, he said he did not consider it necessary to object.

Appellant claims the prosecutor argued outside the record by allegedly

referring to the lengthy and contentious dispute between the attorneys over

admissibility of the notes. Appellant mainly complains that the argument struck at

appellant over the shoulders of trial counsel by accusing trial counsel of concealing

matters. Appellant again claims harm from the extreme sentences, which he contends

resulted from the loss of credibility of trial counsel, who stood mute while being

impugned by the prosecutor's argument.

The State responds that the prosecutor was targeting the psychologist, not trial

counsel, and that there was evidence that appellant had read psychology books to

manipulate his psychologist.

Even if trial counsel should have objected to the prosecutor's argument, an

isolated lapse does not amount to ineffective assistance of counsel, as long as

counsel's overall representation is effective. See Ex parte Welborn , 785 S.W.2d at

393 ; Wilkerson , 726 S.W.2d at 548 . Indeed, appellant makes no claim that trial

counsel's overall representation was deficient during the lengthy, four-day trial.

Moreover, appellant has not established harm. Appellant has not shown that, but for

trial counsel's failure to object, another result would have probably occurred.

Accordingly, we overrule appellant's third issue presented for review.

Not Requesting a Limiting Instruction

In his fifth issue presented for review, appellant contends his trial counsel was

ineffective for failing to request a limiting instruction concerning the underlying facts

of an expert's opinion. Appellant argues that a limiting instruction would have

limited the jury's consideration of appellant's sexually explicit letters to the validity

of the expert's opinion and for no other purpose. Appellant relies on trial counsel's

admission that trial counsel had no trial strategy for not requesting a limiting

instruction. Appellant claims prejudice from the letters' portrayal of appellant as a

"masochistic, sex-crazed pervert." Appellant points out that the prosecutor spent 20

pages of the record developing what appellant claims is the most injurious and

prejudicial evidence the prosecutor elicited, aside from the offense itself.

Despite trial counsel's having denied that trial strategy was the reason for not

requesting an instruction, the State points out that not requesting a limiting instruction

can be considered trial strategy because not requesting the instruction avoids

emphasizing evidence that would be the subject of that instruction. The State also

argues that appellant did not meet his burden of showing that the result of the trial

would have been different if a limiting instruction had been requested.

The record shows that the prosecutor used portions of letters, which appeared

to be written in response to personal ads, during cross-examination of appellant's

psychologist. Trial counsel had provided the letters to the psychologist for the

purpose of evaluating appellant and his risk of reoffending. Appellant told the

psychologist that he had written the letters with a friend as a joke. Appellant signed

the letters, included his phone number, and requested that callers be discreet because

he had roommates. In the letters, appellant wrote the following: "I love breaking

taboos."; "I'm very oral and I like to perform it just as much as I receive it."; "I would

like to make you come until you go crazy. I'm 21, five-foot-ten, 170 pounds, very

athletic. I'm told I'm good-looking, have blue eyes, brown hair, and I love sarcasm.";

"I dated plenty of bimbos but never anyone who was willing to take control. Help,

I love to perform oral and anything else to drive the woman I'm with crazy. I would

like to me [sic] some of you to prove myself."; "You sound like just the whore I have

been waiting for. I'm five-foot-ten, 170 pounds, athletic with brown hair and blue

eyes. I'm also 21 years old. I also have eight inches of cock you'll never forget. Call

me, but be discreet, I have roommates."; "I'm very athletic with brown hair and blue

eyes. I also have a seven-and-a-half inch cock and more oral than you could imagine.

Call me, but please be discreet, I have roommates. I can give you wilder sex then

[sic] any 30-to-50 year [sic] can."; "I'm not promiscuous and am drug and disease

free. I would like to make it clear, though, that I am very heterosexual, not interested

in any bi-contact. I'm not opposed however to a menage a trois."; and "I love to

dominate in bed, and I love to turn any woman I'm with into a cock-sucking slave.

My cock is seven-and-a-half inches. I satisfy your Greek curiosity, you'll never

forget it. You said in your ad that you are very oral. I think I'm the oral expert

you've been looking for."

In his cross-examination of the psychologist, the prosecutor treated the letters

as illustrating appellant's fantasies. The prosecutor asserted that the letters showed

(1) appellant was fantasizing about all sorts of sex prior to the rapes and (2) appellant

had a progression of sexual fantasies about deviant sexual acts as a precursor to

raping the two women. The psychologist did point out that the fantasies involved

willing partners, although the acting out was with unwilling partners. At one point,

the prosecutor emphasized that appellant turned the two victims into "his cock-sucking slaves." When asked if the fantasies in the letters spoke to whether appellant

would be an appropriate candidate for probation and treatment, the psychologist

testified that, even without the letters, her opinion would have been that he had

fantasized prior to the rapes. When asked if it was significant that appellant had

admitted these fantasies to the psychologist, but denied them in testifying to the jury,

the psychologist testified that denial would not be unusual or significant because

denial is common with sex offenders prior to treatment.

The letters were mentioned only once during closing argument, and that

instance was within the context of showing appellant was a liar. The prosecutor

argued that, despite appellant's psychologist's having testified that all sex offenders

have sexual fantasies before their rapes, appellant had taken the stand, looked the

jurors in the eye, and denied he had fantasies. The prosecutor then argued that the

jury could know that appellant was lying about not fantasizing because of "the letters

that said he wants every woman to be his cock-sucking whore, or words to that effect,

excuse my language."

We note that the prosecutor did not confine his use of the letter excerpts during

jury argument to attacking the validity of the psychologist's opinion. Rather, the

prosecutor used the excerpt to impeach appellant's testimony about whether appellant

had fantasized. In the same context , the prosecutor relied on the defense

psychologist's opinion that appellant had fantasized to demonstrate the point that

appellant was a liar for denying that he had fantasized. The prosecutor did not use

the letter excerpts to urge the jury to sentence appellant more severely because

appellant was a pervert for writing such letters. The only use the prosecutor made of

the letter excerpts was cumulative of his use of some of the testimony from

appellant's own psychologist. The prosecutor used both the letter excerpts and the

testimony to show appellant was lying about not having fantasized before committing

the offenses. Considering all of the circumstances, we conclude that, even if trial

counsel was deficient for not requesting a limiting instruction, appellant did not meet

his burden to show that he was more severely punished because of the lack of that

instruction.

Accordingly, we overrule appellant's fifth issue presented for review.

Impeachment of Expert With Inadmissible Letter Excerpts

In his fourth issue presented for review, appellant complains that the trial court

abused its discretion in allowing the prosecutor to question the defense psychologist

concerning the sexually explicit letters appellant had written. Appellant argues that

the trial court's ruling is contrary to the balancing test of rule 705(d) of the Texas

Rules of Evidence. See Tex. R. Evid. 705(d) . (2)

Appellant acknowledges the psychologist's opinion that appellant had a

medium-high risk for reoffending, would respond well to outpatient treatment, and

would thus be capable of rehabilitation, and also acknowledges that the psychologist

based her opinions on the entire contents of her file, including the personal want-ad

letters written by appellant before the sexual assaults. Appellant claims that

testimony from the psychologist that the letters did not alter her opinion that appellant

was a suitable candidate for probation made the letters irrelevant and, thus,

inadmissible. Appellant overlooks that the very reason the prosecutor wanted to use

the letter excerpts was to impeach the psychologist's opinion by showing that the

letter excerpts should have caused the expert to reach a different conclusion.

Referring to inadmissible matters to impeach an expert who considered those matters

is well established. See Nenno v. State , 970 S.W.2d 549, 564 (Tex. Crim. App. 1998)

(concluding State was entitled to cross-examine capital-murder defendant's testifying

expert concerning contents of report made by that expert's colleague, who had

interviewed defendant about crime, when testifying expert relied upon other expert's

report in forming his own opinion).

Accordingly, we overrule appellant's fourth issue presented for review.

Conclusion

We affirm the judgment of the trial court.

Tim Taft

Justice

Panel consists of Justices Taft, Alcala, and Price. (3)

Do not publish. Tex. R. App. P. 47.4.

1. The trial court had ruled the search producing the letters was unlawful.

2. Rule 705(d) provides as follows:

When the underlying facts or data would be inadmissible in evidence, the court

shall exclude the underlying facts or data if the danger that they will be used

for a purpose other than as explanation or support for the expert's opinion

outweighs their value as explanation or support or are unfairly prejudicial. If

otherwise inadmissible facts or data are disclosed before the jury, a limiting

instruction by the court shall be given upon request.

Tex. R. Evid. 705(d).

3. The Honorable Frank C. Price, former Justice, Court of Appeals, First District

of Texas at Houston, participating by assignment.