Ricky Lee Stroble v. State

Opinion issued

April 28, 2011

In

The

Court of

Appeals

For

The

First District of Texas

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NOS. 01-09-00886-CR

01-09-00887-CR

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Ricky Lee Stroble , Appellant

V.

The State of Texas , Appellee

On Appeal from the 506th

District Court

Waller County, Texas

Trial

Court Case Nos. 12,326, 12,777

MEMORANDUM OPINION

Ricky Lee Stroble pleaded guilty to

the offenses of aggravated sexual assault of a child younger than 14 years of

age [1] and indecency with a child. [2] After the preparation of a pre-sentencing

investigation report, the trial court held a hearing on punishment and then

sentenced Stroble to confinement for 99 years for the aggravated sexual assault

charge and 20 years for the indecency with a child charge. In his sole issue, Stroble contends that his

trial counsel rendered ineffective assistance during the punishment phase of

his trial. We conclude that trial

counsel did not render ineffective assistance.

We affirm.

Background

Stroble

lived on the same property that his ex-wife Melissa, her fiancé Scott, Scott’s

13- and 15-year-old daughters, and Melissa’s nine-year-old daughter, Jane Doe

lived on, but in a separate residence.

Melissa discovered a videotape in Stroble’s trailer that depicted

Stroble engaged in sexual contact with a number of females. The videotape also showed Scott’s 13-year-old

daughter taking a shower in the bathroom of Stroble’s trailer. The recording appeared to be made through

holes in the wall of the shower stall.

Scott provided the videotape to the Waller County Sheriff’s Office.

Scott’s 15-year-old daughter told the

Sheriff’s Office investigator that they had discovered a camera hidden in

Stroble’s bathroom connected to a television in the living room. Melissa told the investi gator that Stroble kept

child pornography on his computer and other storage devices. After officers obtained a search warrant,

they seized computers, computer disks, storage media, cameras, videotapes, and

disks from Stroble’s trailer.

After his arrest, Stroble admitted that

images of child pornography were located on some of the storage media. Stroble subsequently pleaded guilty to

aggravated sexual assault of child younger than 14 years of age and indecency

with a child.

During the punishment phase, Waller

County Sheriff’s Office Deputy Brian Cantrell summarized his

investigation. He specifically testified

that Stroble admitted that he had photographs of “children under the age of 18”

on his computer, but claimed that he had tried to keep his actions within the

law. Cantrell identified Stroble in some

of the photographs.

Lannes Hillboldt, an officer with the Attorney

General’s Office, testified that he examined the computers and other storage

devices for the State. Through Hillboldt,

the State introduced 71 photographs and drawings taken from the computers and

other storage devices seized from Stroble’s trailer. Some drawings depicted sexual acts involving

children. Some photographs depicted child

pornography and others showed Stroble nude. Some of the photographs are of Melissa’s

nine-year-old daughter, Jane Doe, including images of her genitals. Other images show Stroble engaging in sexual

contact with young females, including Jane Doe.

An inmate in the Waller County jail testified

that Stroble said he had paid a girl $50 to allow him to photograph her in the

shower. Scott’s 15-year-old daughter

testified that on one occasion Stroble paid her $50 to take off her top for a

video recording of her. When she saw

Stroble watching the recording, he offered her $150 to masturbate him.

Lisa Bourgoyne, who worked at the

Children’s Assessment Center of Harris County, testified to the results of her

interview with Jane Doe. Bourgoyne

testified that Jane Doe described numerous instances of Stroble photographing

her nude. She also described several

instances where Stroble sexually assaulted her.

She remembered the photographs being taken and described those incidents

in a straightforward manner. In

contrast, she described the sexual assaults as occurring when she was sleeping

or dreaming. Bourgoyne explained that

that type of dissociation was common for abuse victims and consistent with

post-traumatic stress. On

cross-examination, Bourgoyne conceded that she referred to Stroble’s sexual

activities as “sexual addictions” in her report. Stroble’s counsel also attempted to suggest

that treatment programs were available for sexual addictions, but Bourgoyne

testified that she did not know if a successful treatment program was available

for sex offenders.

The defense called Stroble, who

described a number of events in his life to demonstrate his difficult

childhood. After his mother died when he

was three, he was adopted by relatives.

While in their care, he was sexually abused by a babysitter. After only two or three years of public school,

he was placed at a boys’ ranch in San Marcos. He again experienced sexual abuse at the boys’

ranch. He testified that by this point

he had been conditioned to view such sexual conduct as normal, and therefore he

did not report the abuse. By age 14 he

had left the ranch and was working.

At age 18, Stroble was charged with

indecency with a child. Stroble

testified he only “made out” with a girl at a swimming pool. Stroble was convicted and placed on probation

for ten years. He testified that his

probation did not include any courses or counseling. His probation was revoked when he was again

charged with indecency with a child.

Stroble was again convicted and then sentenced to six years in

prison.

After his release from prison, Stroble

was introduced to his ex-wife Melissa shortly before she gave birth to Jane Doe.

Stroble testified that he was first

introduced to pornography when Melissa showed him photos of her at age 15 and

her friend showed him images of young girls.

Stroble and Melissa began taking nude photos of each other and Melissa’s

friends.

Stroble admitted to the offenses

alleged against Jane Doe and to other occasions when he sexually assaulted her,

including oral and anal sex and sexual intercourse. Stroble also admitted to having traded child

pornography online but stated he had not sent any pictures of Jane Doe. Stroble

stated that he had a sex addiction and wanted medication or other treatment to

control the addiction.

In pronouncing sentence, the trial court

stated it did not know if Stroble’s claimed sexual addiction was treatable. The trial court assessed 99 years confinement

for the sexual assault of a child and 20 years for the indecency with a child.

Standard of Review

A

two-pronged test determines issues of ineffective assistance of trial

counsel. Strickland v. Washington , 466 U.S. 668 , 687–94, 104 S. Ct. 2052 ,

2064–68 (1984). To prevail on a claim of

ineffective assistance of counsel, an appellant must show that (1) counsel’s

performance fell below an objective standard of reasonableness and (2) but for

counsel’s unprofessional error, there is a reasonable probability that the

result of the proceeding would have been different. Id. ;

Mitchell v. State , 68 S.W.3d 640, 642

(Tex. Crim. App. 2002). A reasonable

probability is a “probability sufficient to undermine confidence in the

outcome.” See Strickland , 466 U.S. at 694 , 104 S. Ct. at 2068 ; Mitchell , 68 S.W.3d at 642 . A failure to make a showing under either

prong defeats a claim for ineffective assistance. Rylander

v. State , 101 S.W.3d 107, 110 (Tex. Crim. App. 2003).

Allegations

of ineffectiveness must be firmly founded in the record, which must demonstrate

affirmatively the alleged ineffectiveness.

Thompson v. State , 9 S.W.3d

808, 813 (Tex. Crim. App. 1999). An

appellant must prove ineffective assistance by a preponderance of the evidence,

overcoming the strong presumption that counsel’s conduct falls within the wide

range of reasonable professional assistance or might reasonably be considered

sound trial strategy. Robertson v. State , 187 S.W.3d 475 , 482–83

(Tex. Crim. App. 2006). The record on

direct appeal in ineffective assistance of counsel cases rarely provides the

reviewing court an opportunity to conduct a fair evaluation of the merits. Randon

v. State , 178 S.W.3d 95, 102 (Tex. App.—Houston [1st Dist.] 2005, no pet.).

We cannot speculate to find trial

counsel ineffective when the record is silent on counsel’s reasoning or

strategy. See Wood v. State , 260

S.W.3d 146, 148 (Tex. App.—Houston [1st Dist.] 2008, no pet.).

In

rare cases, the record can be sufficient to prove that counsel’s performance

was deficient, despite the absence of affirmative evidence of counsel’s

reasoning or strategy. See Robinson v. State , 16 S.W.3d 808 ,

813 n.7 (Tex. Crim. App. 2000). These

rare cases are limited to occasions when no reasonable attorney could have made

such a decision. Weaver v. State , 265 S.W.3d 523, 538 (Tex. App.—Houston [1st Dist.]

2008, pet. ref’d). In reviewing counsel’s

performance, we look to the totality of the representation to determine the

effectiveness of counsel, indulging a strong presumption that counsel’s

performance falls within the wide range of reasonable professional assistance

or trial strategy. Robertson , 187 S.W.3d at 482–83.

Isolated instances of a failure to object to inadmissible argument or

evidence do not necessarily render counsel ineffective. See id.

at 483 .

Ineffective Assistance of

Counsel

In

his sole issue, Stroble argues that he received ineffective assistance of

counsel during the punishment phase of his trial because his trial counsel

failed to (1) adequately prepare for trial; (2) object to hearsay testimony;

and (3) object to improper argument from the State.

1. Failure to investigate

Stroble

contends that his trial counsel rendered ineffective assistance by failing to

seek an expert witness to evaluate Stroble and testify on his behalf and by

failing to obtain records to support Stroble’s testimony. Specifically, Stroble asserts that his

defense at punishment was based on the strategy of admitting “to the acts for

which he was prosecuted but his conduct was the result of a combination of

abuse he suffered as a child and adolescent and his addiction to sexual imagery

and conduct.” Stroble also maintains

that “the trial court did not refuse to consider Stroble’s argument that he

suffered from a mental illness [but noted] an absence of any basis to determine

whether the condition was treatable.”

Stroble also contends that counsel did not obtain records supporting his

testimony that his prior convictions for indecency with a child were “based on

dating relationships rather than assaults on young girls.”

“[C]ounsel

has a duty to make reasonable investigations or to make a reasonable decision

that makes particular investigations unnecessary.” Randon ,

178 S.W.3d at 101–02 (quoting Wiggins v.

Smith , 539 U.S. 510, 521 , 123 S. Ct. 2527, 2535 (2003)). When the record is silent concerning

counsel’s decisions after a less than complete investigation, we are unable to

evaluate counsel’s strategy and have an insufficient record on which to

determine whether counsel provided effective assistance. See id.

at 102.

The

record shows that in addition to his own pre-trial work, Stroble’s counsel not

only retained a private investigator who investigated the case, but a

“mitigation expert,” who investigated the case and interviewed Stroble, and a

psychologist, who interviewed and evaluated Stroble. Counsel and his team apparently investigated

Stroble’s claims; however, the record is silent concerning counsel’s decision,

or the reasoning behind his decision, not to pursue the matter further through

expert testimony. It is possible that he

could have concluded that any further pursuit of the matter would have been

futile, or possibly harmful to his client’s defense. Therefore, we cannot say, based on this

record, that counsel was ineffective for failing to pursue the matter

further. Id. ; cf. Rivera v. State ,

123 S.W.3d 21 , 30–31 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d) (refusing

to presume counsel’s performance may have been reasonable trial strategy at

punishment phase when counsel failed to perform any investigation of

appellant’s background and record showed that he was unfamiliar with

appellant’s background and criminal history).

Because Stroble has not met the first prong of Strickland concerning his counsel’s investigation, we do not

address the second prong. See Rylander ,

101 S.W.3d at 110 .

2. Failure

to object to hearsay

Stroble

contends that trial counsel rendered ineffective assistance by failing to

object to the hearsay testimony of Lisa Bourgoyne from the Children’s

Assessment Center in Harris County.

Specifically, Stroble contends that much of Bourgoyne’s testimony

consisted of recounting hearsay statements made by Jane Doe concerning

Stroble’s indecency and sexual assault.

Stroble asserts that his counsel could have objected to Bourgoyne’s

testimony as hearsay and that the exception for outcry statements did not

apply.

Assuming that

the trial court would have erred in overruling a hearsay objection to

Bourgoyne’s testimony, [3] we cannot determine

on the record before us that counsel was deficient in not objecting. As acknowledged in Stroble’s brief, it

appears that trial counsel’s strategy during the punishment phase was for

Stroble to admit he had committed the conduct charged in the indictments and

rely on evidence of his difficult childhood and illness or addiction as

mitigating factors. By this stage of the trial, he had already pleaded

guilty. Stroble also took the stand and

admitted to th e same conduct that Bourgoyne recounted. Because the record is silent concerning trial

counsel’s reason for not objecting to Bourgoyne’s testimony, we cannot

speculate to deem his performance deficient.

See Wood , 260 S.W.3d at 148 . Furthermore, Stroble testified to the assault

and indecency with Jane Doe; when hearsay evidence is improperly admitted, but

the same facts are proved by other admissible evidence, no reversible error

occurs. Bryant v. State , 282 S.W.3d 156, 163 (Tex. App.—Texarkana 2009,

pet. ref’d) (citing Anderson v. State ,

717 S.W.2d 622, 628 (Tex. Crim. App. 1986)). Because Stroble has not met the first prong

of Strickland concerning the failure

to object to hearsay, we do not address the second prong. See

Rylander , 101 S.W.3d at 110 .

3. Failure

to object to improper argument

Stroble

contends that he was provided with ineffective assistance of counsel because

his counsel did not object to portions of the State’s closing argument in which

the prosecutor stated his personal opinion of Stroble’s credibility; referred

to Stroble as “evil” and “despicable”; maintained that “no mitigation evidence

was presented;” and stated that recidivism rates in sex offender programs are

“horrendous,” when no evidence supported that statement. The following excerpts are most of the

State’s closing argument, with the portions Stroble complains of on appeal

italicized.

. . . . I believe that the comments that have come

from Mr. Stroble are patently unbelievable .

I believe that he is nothing more

than an individual who is trying to save his own skin and that you cannot take

anything he says at all as being the truth ; and this whole idea that he

would suggest that he is some kind of a sick individual, that he is some kind

of deviant sexual person, I think is unfortunate because we have this idea that

because somebody is sick that they should be availed of certain

treatments. I’m not saying that Mr.

Stroble is sick at all. My position, the

State’ position is Mr. Stroble is not sick.

He is evil and he has

perpetrated the most egregious crimes against children that’s envisioned by the

State; and he’s not done it once, but he has done it many times. So for him to get up here before this court

and say that, “well I just didn’t know it was wrong until I was 24 years old; I

never received any treatment,” is a patently ridiculous and absurd and I think

insulting thing to represent to this court.

After Stroble’s counsel presented closing argument,

the State responded as follows:

[Bourgoyne] has never seen a sex offender program, now

she’s not an expert obviously, that has been successful; and I think from an

anecdotal point of view we can say the same thing. We have lots of programs that are treating

sex offenders, but we have never, ever seen any kind of data that says any of

it is successful. It’s sort of a garden

sort of industry right now. We say,

we’ve got to do something with these people.

Let’s put them in a program, let’s give them some treatment; but we’ve

never, ever seen any results from that. And I think the court is well aware, if you

take judicial notice, that the recidivism rate in these programs is

horrendous. I’m not going to give you

percentages, but they are great .

They don’t work. So if we are to

decide that we are going to put Mr. Stroble in some kind of program, then we

are setting ourselves up for more problems.

The only way to deal with Mr. Stroble is to put him in the penitentiary

for the rest of his life.

. . . .

There is no

mitigating evidence that’s been presented to you, Your Honor . You know, he shows this little picture here

of the boy’s ranch. There’s never been any suggestion other than Mr.

Credibility, Mr. Stroble, that these things were -- that there was any kind of

sexual abuse, no records, no arrests, no news articles, all we have is the word

of Mr. Stroble, and that’s not very credible.

. . . .

I have to hand it to [Scott’s daughters], here. . .

. They have taken their time to come out

here and to testify and to sit through this and to tell some things they’re not

very proud of, and I don’t blame her for that; but she was a kid, and she was

under the influence of a person who is

despicable and who was very, very adept at persuasion. She should have nothing to be ashamed of

under those circumstances. She came out

here and she told the story the way it was to benefit this court so you would

have all the information that was available.

Assuming

Stroble’s trial counsel should have objected to these arguments, Stroble must

still meet the second prong of Strickland to receive relief. As noted above, to prevail on the second

prong of Strickland , an appellant

must show a reasonable probability that the result of the proceeding would have

been different but for counsel’s ineffective assistance, i.e., a probability

“sufficient to undermine confidence in the outcome.” See

Strickland , 466 U.S. at 694 , 104 S. Ct. at 2068 ; Mitchell , 68 S.W.3d at 642 . “An

appellate court will not reverse a conviction for ineffective assistance of

counsel at the punishment stage unless the appellant shows prejudice as a

result of deficient attorney performance.”

Rivera , 123 S.W.3d at 32 . “To assess prejudice, ‘we reweigh the

evidence in aggravation against the totality of available mitigating evidence’

as indicated by the record as a whole.” Id. (quoting Wiggins , 539 U.S. at 534 , 123 S. Ct. at 2542 ).

The

evidence supporting the trial court’s sentences was overwhelming. Stroble pleaded guilty to indecency with a

child and aggravated sexual assault of a child.

The evidence also showed he made a videotape of Scott’s 13-year-old

daughter when she was taking a shower.

Stroble’s computer had 71 images, including child pornography and

drawings depicting sexual acts with children.

The images also showed nine-year-old Jane Doe’s genitals and Stroble

engaging in sexual contact with children, including Jane Doe. Stroble paid Scott’s 15-year-old daughter to

make a recording partially nude. Later,

while watching the recording, he offered her $150 to masturbate him. Stroble also admitted to other sexual

assaults including sexual intercourse and oral and anal sex with Jane Doe. Additionally, Stroble had earlier pleaded

guilty to indecency with a child and received community supervision. However, he failed to take the opportunity

provided by community supervision and again committed indecency with a child

and was sentenced to prison.

Although

the trial court imposed the maximum sentence on the indecency with a child

charge (20 years) and effectively imposed the maximum sentence on the

aggravated sexual assault of a child charge, Stroble has not demonstrated a

reasonable probability—i.e., a probability sufficient to undermine confidence

in the outcome—that the trial court would have imposed a lesser sentence but

for the State’s improper arguments. See Ex parte Lane , 303 S.W.3d 702, 712

(Tex. Crim. App. 2009) (holding improper argument during guilt-innocence phase

of trial did not result in prejudice to defendant because evidence of

defendant’s guilt was extremely strong). [4]

Stroble

argues that “[b]ecause [he] was sentenced to the maximum term of imprisonment

on each charge, there is a reasonable probability the outcome would have been

different [i.e., he would have received a lesser sentence] had counsel’s

performance not been deficient.”

However, Stroble’s conclusion does not follow from his premise. As noted above, not only did Stroble plead

guilty to the offenses for which he was charged, he admitted to committing

several other egregious acts. More

importantly, he had already received a sentence of community supervision for a

prior indecency with a child offense, failed to complete community supervision,

and had it revoked. The trial court had

evidence before it that Stroble is not likely to be rehabilitated. Thus, our confidence that the trial court

would not have imposed a lesser sentence is not undermined. See

Ex parte Lane , 303 S.W.3d at 712 .

We

overrule Stroble’s sole issue.

Conclusion

We

affirm the judgments of the trial court.

Harvey

Brown

Justice

Panel consists of

Justices Jennings, Higley, and Brown.

Do not

publish. Tex. R. App. P. 47.2( b).

[1] See Tex. Penal Code Ann. § 22.021(a)(1)(B)(i),

(a)(2)(B) (West Supp. 2010).

[2] See Tex. Penal Code Ann. § 21.11(a)(1)

(West Supp. 2010).

[3]

See

Ortiz v. State , 93 S.W.3d 79, 93 (Tex. Crim. App. 2002) (“When

an ineffective assistance claim alleges that counsel was deficient in failing

to object to the admission of evidence, the defendant must show, as part of his

claim, that the evidence was inadmissible.”).

[4]

Prior

cases from the Texas Court of Criminal Appeals applied presumptions in bench

trials that the trial court did not consider improper argument or inadmissible

evidence. J uarez v. State , 439 S.W.2d 346, 347 (Tex. Crim. App.

1969). Although it did not mention the

former presumption, the Texas Court of Criminal Appeals expressly overruled the

latter. Gipson v. State , 844 S.W.2d 738 , 740–41 (Tex. Crim. App. 1992). Specifically, the court stated, “The

promulgation of Rule 81(b)(2) implicitly voided the presumption test, and we

now expressly do so.” Id. at 741 . Rule 81(b)(2) stated, “If the appellate

record in a criminal case reveals error in the proceedings below, the appellate

court shall reverse the judgment under review, unless the appellate court

determines beyond a reasonable doubt that the error made no contribution to the

conviction or to the punishment.” Id. at 740 . The current harm rule, Rule 44.2 (“Reversible

Error in Criminal Cases”), is similar to former Rule 81(b)(2) and states,

(a)

Constitutional Error. If the appellate record in a criminal case reveals

constitutional error that is subject to harmless error review, the court of

appeals must reverse a judgment of conviction or punishment unless the court

determines beyond a reasonable doubt that the error did not contribute to the

conviction or punishment.

(b)

Other Errors. Any other error, defect, irregularity, or variance that does not

affect substantial rights must be disregarded.

Tex. R. App. P. 44.2.

While the rules no longer treat as

harmless all errors made in a non-jury trial, that does not mean we cannot

consider the fact that the judge was the factfinder. The trial judge was aware of the difference

between argument based on evidence and argument without any evidentiary

support.

We also note that the statement that recidivism rates in sex offender

programs are “horrendous” and that the programs “don’t work” was made in a request

that the court take judicial notice of these “facts.” The trial court did not, however, take

judicial notice. Additionally, by

requesting that the court take judicial notice, the State implicitly conceded

that this argument was not supported by the evidence.