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Lindsey v. State

Court of Appeals of Texas, Fourteenth District

August 6, 2019

DARRYL WAYNE LINDSEY, JR., Appellant
v.
THE STATE OF TEXAS, Appellee

          On Appeal from the 506th Judicial District Court Waller County, Texas Trial Court Cause No. 14-12-14947

          Panel consists of Justices Wise, Zimmerer, and Spain.

          OPINION

          Ken Wise Justice

         Appellant Darryl Wayne Lindsey, Jr., was convicted by a jury of aggravated sexual assault of a child and sentenced by the trial court to sixty years in prison. In four issues, appellant contends that he received ineffective assistance of counsel and that the trial court abused its discretion in making certain rulings. For the reasons explained below, we affirm.

          Background

         In 2014, the complainant and his younger brother were living with their father on a 1, 500-acre ranch where the father worked as a ranch hand. Appellant is the boys' cousin. The complainant's father arranged for appellant to watch the boys for a few weeks in August 2014 while the father was working. In September, the complainant made an outcry to his father that appellant had sexually abused him and his younger brother.

         In July 2017, the State filed an amended indictment alleging that on or about August 31, 2014, appellant committed the first-degree felony offense of aggravated assault of the complainant, a child under the age of fourteen. See Tex. Penal Code § 22.021. The guilt-innocence phase of the trial was presented to a jury over three days in August 2018. The evidence included testimony of the complainant, the complainant's mother and father, law enforcement officers, and experts. Although the complainant's younger brother did not testify, the trial court permitted the State to present evidence of an extraneous offense against the younger brother based in part on evidence that the complainant, his younger brother, and the appellant tested positive for chlamydia, a sexually transmitted disease.

         Issues and Analysis

         On appeal, appellant raises four issues: (1) appellant's trial counsel was ineffective; (2) the trial court abused its discretion in ruling that the State's disclosure of material rebuttal evidence did not violate article 39.14 of the Texas Code of Criminal Procedure; (3) the trial court abused its discretion by implying the legal basis for the State's objections in violation of Rule 103(a) of the Texas Rules of Evidence; and (4) the trial court abused its discretion by allowing the admission of a State's exhibit as rebuttal evidence even though the State failed to provide adequate notice under the Texas Rules of Evidence and article 39.14.

         I. Ineffective Assistance of Counsel

         In his first issue, appellant contends that defense counsel was ineffective based on three acts or omissions: (1) failing to object to hearsay regarding an alleged extraneous offense involving the complainant's younger brother; (2) failing to object to the admission and publication of an exhibit containing evidence of the alleged extraneous offense; and (3) failing to adequately investigate appellant's medical history. Because appellant addresses his first two sub-issues together, we will do likewise and address appellant's third sub-issue separately.

         A. Standard of Review and Applicable Law

         To prevail on a claim of ineffective assistance, an appellant must prove by a preponderance of the evidence that (1) counsel's performance was deficient by falling below an objective standard of reasonableness, and (2) counsel's deficiency caused the appellant prejudice such that there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. See Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). The failure to make the required showing of either deficient performance or sufficient prejudice defeats the claim of ineffective assistance. Thompson, 9 S.W.3d at 813.

         When evaluating a claim of ineffective assistance, the appellate court looks to the totality of the representation and the particular circumstances of the case without the benefit of hindsight. Lopez v. State, 343 S.W.3d 137, 143 (Tex. Crim. App. 2011); Thompson, 9 S.W.3d at 813. Judicial scrutiny of counsel's performance must be highly deferential, and a reviewing court must indulge a strong presumption that counsel's conduct was motivated by sound trial strategy. Rylander v. State, 101 S.3d 107, 110 (Tex. Crim. App. 2003).

          Often a claim of ineffective assistance may not be addressed on direct appeal because the record is not sufficient to conclude that counsel's performance was deficient under the first Strickland prong. See Menefield v. State, 363 S.W.3d 591, 592-93 (Tex. Crim. App. 2012). Trial counsel should ordinarily be afforded an opportunity to explain her actions before being denounced as ineffective. Id. at 593. If trial counsel is not given that opportunity, then the appellate court should not find deficient performance unless the challenged conduct was "so outrageous that no competent attorney would have engaged in it." Id. (quoting Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005)).

         B. Ineffective Assistance Based on Admission of Evidence

         In his first two sub-issues, appellant contends that his counsel's conduct allowed the admission of evidence of an alleged extraneous offense involving the complainant's younger brother. Appellant contends that counsel failed to object to hearsay in one instance and the admission and publication of a State's exhibit in another instance. Appellant does not contend that counsel provided ineffective assistance by failing to object to the admission of evidence of an extraneous offense.[1]

         1. No objection to hearsay

         In his first sub-issue, appellant argues that counsel failed to object to hearsay.

          The record shows that the State called the complainant, then eleven years old, to testify concerning appellant's alleged sexual abuse. Shortly after the complainant testified in detail about how appellant sexually abused him, the State asked the complainant if appellant "touched anybody else's body" in his house, and the complainant answered that appellant touched his younger brother. The following exchange then occurred:

Q. [Prosecutor:] Okay. How did - how did [appellant] let [the younger brother] know that he was about to do something to him?
A. [Complainant:] He said it's your turn, [younger brother].
Q. And did you hear ...

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