Darrell Wayne Bell v. State
12-15-00022-CR
| Tex. App. | Sep 2, 2015Background
- Darrell Wayne Bell was indicted for continuous sexual abuse of a young child and pleaded not guilty; a jury convicted him and he received a life sentence.
- Victim L.J., age seven, testified to multiple sexual assaults by Bell occurring on several occasions (including a “movie night,” the day Bell dug a trench on Sept. 20, 2013, and an escalated incident in December 2013).
- Some testimony about timing and details varied: L.J. could not recall dates for some incidents, omitted an early incident in an initial forensic interview, and said family members were sometimes nearby.
- Bell argued on appeal that trial counsel was ineffective for failing to request a jury instruction on aggravated sexual assault of a child as a lesser included offense of continuous sexual abuse.
- The State conceded aggravated sexual assault is a lesser included offense but argued no evidence affirmatively raised it; the trial court’s judgment was affirmed on appeal.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Bell) | Held |
|---|---|---|---|
| Whether trial counsel was ineffective for failing to request a lesser-included instruction on aggravated sexual assault of a child | No instruction required because the evidence did not affirmatively raise the lesser offense | Counsel should have requested the instruction because inconsistencies and omissions could have led the jury to find offenses occurred within a 30-day period only | Court held counsel was not ineffective because there was no affirmative evidence to raise the lesser offense, so no instruction was warranted |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (established two-prong ineffective assistance test)
- Bignall v. State, 887 S.W.2d 21 (Tex. Crim. App. 1994) (lesser-included instruction required only if evidence affirmatively raises it)
- Cavazos v. State, 382 S.W.3d 377 (Tex. Crim. App. 2012) (explaining affirmative-evidence requirement for lesser-included offenses)
- Ex parte Thompson, 179 S.W.3d 549 (Tex. Crim. App. 2005) (no ineffectiveness when no entitlement to instruction exists)
- Soliz v. State, 353 S.W.3d 850 (Tex. Crim. App. 2011) (continuous sexual abuse and aggravated sexual assault relationship)
- Tong v. State, 25 S.W.3d 707 (Tex. Crim. App. 2000) (standards on Strickland application)
- Hernandez v. State, 726 S.W.2d 53 (Tex. Crim. App. 1986) (early Texas discussion of Strickland)
- Thompson v. State, 9 S.W.3d 808 (Tex. Crim. App. 1999) (record must affirmatively demonstrate ineffectiveness)
- Bone v. State, 77 S.W.3d 828 (Tex. Crim. App. 2002) (record on direct appeal rarely develops ineffectiveness claims fully)