Rogers v. State

EVANS, Chief Justice,

dissenting.

The extensive record chronicles the course of a vigorously prosecuted and well-defended adversarial proceeding.

The State’s initial presentation was brief and factual. It consisted of the 9-year-old complainant’s narration of the occurrence and an investigative report by a children’s social worker. After this presentation, the State rested.

Appellant testified in his own defense. On direct examination, he postured himself as a proper and decorous 50-year-old father of five and the innocent victim of a spoiled, unruly child and her vindictive grandmother. He denied having sexually molested the complainant and suggested that the charges against him stemmed from a quarrel he had with complainant’s grandmother. On cross-examination, appellant denied that he had any sexual relations with either of his girlfriend’s two teenage daughters, that he customarily slept in the same bed with one of them, or that he had watched X-rated movies with them and the complainant. He described the complainant as very unruly, said she lacked manners and had no respect for other people, and suggested that her story was a fabrication encouraged by her “super vicious” grandmother. Appellant’s girlfriend and her two daughters gave similar testimony, confirming appellant’s version of the matter. Appellant also called numerous character witnesses who testified on his behalf.

My reading of the trial record suggests that the prosecutor became outraged by the appellant’s attempt to portray himself as a family man, a person of high ideals, and an innocent victim of the complainant’s fabricated story. The prosecutor’s indignation was not diminished by the appellant’s condescending manner during cross-examination, in which he occasionally called the prosecutor “Sugar.” In her vigorous cross-examination, the prosecutor relentlessly hammered at appellant’s credibility and often resorted to leading questions and innuendos to depict the appellant as a perverted child molester.

I agree with the majority that the prosecutor’s trial tactics did not meet acceptable standards of professional conduct, because they demonstrated her personal belief that appellant was guilty and his testimony unbelievable. See Supreme Court of Texas, Rules Governing the State Bar of Texas art. X, sec. 9, (Code of Professional Responsibility) DR-7-106 (1973). But I do not agree that this necessitates a reversal of the conviction.

Appellant points to only two instances in which he made any objection whatsoever to the prosecutor’s conduct, and in both those instances, the court sustained his objection. When the objections were sustained, appellant made no request for an instruction to disregard or for any other relief. In my opinion, appellant waived any right to complain on appeal. Duran v. State, 505 S.W.2d 863, 866 (Tex.Crim.App.1974).

I am also of the opinion that the prosecutor did not exceed the bounds of proper prosecutorial conduct in trying to show appellant’s prior sexual relations with the teenage daughters of his girlfriend. Under the particular circumstances of the case, I believe those circumstances were admissible to rebut the impression left by the appellant that he was a person of such high integrity and character that he would not have committed the offense, Boutwell v. State, 719 S.W.2d 164, 179 (Tex.Crim.App. *362 1986); McDonald v. State, 513 S.W.2d 44 (Tex.Crim.App.1974), and also to rebut appellant’s contention that he had been falsely accused by the complaining witness. Boutwell, 719 S.W.2d at 179 . But the question of admissibility need not be resolved here, because appellant waived any complaint by his failure to object.

For the reasons stated, I would overrule appellant’s first point of error.

I would also overrule appellant’s second point of error in which he claims he was denied a fair trial due to ineffective assistance of counsel.

The obvious strategy of appellant’s trial counsel was to destroy the credibility of the complainant’s testimony. To do this, appellant sought to prove by an overwhelming number of defense witnesses, that he could not possibly have been a child molester because he was such a fine person and a family man.

Although other trial lawyers might disagree with defense counsel’s judgment, it was within the ambit of his trial strategy to refrain from objecting to the prosecutor’s conduct, being confident that appellant’s witnesses could withstand the onslaught of her aggressive interrogation. Indeed, appellant’s counsel might reasonably have counted on the jury becoming offended by the prosecutor’s overzealous and abusive behavior, thereby gaining sympathy for appellant.

Gauging the adequacy of the defense counsel’s performance by the totality of his representation, I do not consider that his performance fell below the objective standard of “reasonably effective assistance of counsel.” Ex parte Raborn, 658 S.W.2d 602 (Tex.Crim.App.1983). Neither does the record indicate a reasonable probability that, but for defense counsel’s errors in judgment, the result of appellant’s trial would have been any different. See Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984); Ingham v. State, 679 S.W.2d 503 (Tex.Crim.App.1984).

For the reasons stated, I would affirm the trial court’s judgment.