Duane Eric West v. State
11-13-00298-CR
Tex. App.Oct 30, 2015Background
- Appellant Duane Eric West, a former deputy sheriff, was convicted by a jury in Haskell County of aggravated sexual assault of a child under 14 and sentenced to 50 years’ confinement. The indictment alleged he caused contact of the child’s female sexual organ with his mouth.
- The charged acts arose from an incident at a cemetery in summer 2012; appellant gave a written statement admitting oral contact with the victim’s vagina; the victim testified appellant kissed her from mouth down to her vagina and confirmed he kissed her vagina but answered "no" when asked if he performed "oral sex."
- Appellant’s trial was moved from Kent County to Haskell County on a agreed change of venue; appeal lies in this court because the trial was completed in Haskell County and the proceedings were not returned to Kent County.
- On appeal appellant raised three issues: (1) trial court erred by refusing a jury instruction on the lesser-included offense of indecency with a child by sexual contact; (2) trial counsel was ineffective for several failures (failure to object to a polygraph reference, to hearsay, and to properly press for the lesser-included instruction); and (3) trial court erred in admitting a topless photograph of the victim during punishment.
- The court reviewed lesser-included-offense entitlement under the Aguilar/Rousseau two-prong test (legal prong then factual prong); it found the legal prong satisfied but rejected the factual prong because the evidence (appellant’s statement and the victim’s testimony that appellant kissed her vagina) supported the charged aggravated sexual assault by mouth rather than merely sexual contact.
- The court rejected the ineffective-assistance claims (no prejudice shown; record does not demonstrate counsel was outside range of reasonable professional judgment) and affirmed admission of the topless photograph at punishment under a Rule 403 balancing and Article 37.07 relevance to sentencing.
Issues
| Issue | West’s Argument | State’s Argument | Held |
|---|---|---|---|
| Whether trial court erred by refusing a lesser-included instruction (indecency with a child) | Evidence (victim’s “no” to "oral sex") created a fact issue that appellant might be guilty only of indecency by sexual contact | Evidence (appellant’s confession and victim’s testimony that appellant kissed her vagina) supports oral contact element; no rational basis for lesser-only finding | Denied — no evidence permitting a rational jury to find guilt only of the lesser offense |
| Ineffective assistance for failure to object to polygraph reference | Counsel should have objected; reference suggested appellant refused test | The witness’s remark was nonresponsive, mentioned only that a polygraph was offered/requested and did not state results or refusal; failure to object not deficient or harmful | Denied — not deficient or no reasonable probability of different result |
| Ineffective assistance for failing to object to hearsay / Confrontation Clause and to search-warrant affidavits | Counsel should have objected; statements were inadmissible hearsay and violated confrontation | Out-of-court statements were offered to explain why appellant became a suspect (non-hearsay purpose); even if error, statements were cumulative of other evidence and thus harmless | Denied — counsel not ineffective; no prejudice shown |
| Admission of topless photograph at punishment (Rule 403) | Photo was overly prejudicial and should have been excluded | Photo was relevant at punishment to demonstrate nature of relationship and appellant’s character; probative value not substantially outweighed by prejudice | Denied — trial court did not abuse discretion in admitting photo |
Key Cases Cited
- Cavazos v. State, 382 S.W.3d 377 (Tex. Crim. App.) (articulating Aguilar/Rousseau two-prong test for lesser-included offenses)
- Rousseau v. State, 855 S.W.2d 666 (Tex. Crim. App.) (lesser-included offense factual-prong discussion)
- Aguilar v. State, 682 S.W.2d 556 (Tex. Crim. App.) (lesser-included offense legal framework)
- Evans v. State, 299 S.W.3d 138 (Tex. Crim. App.) (indecency with a child can be lesser-included of aggravated sexual assault when predicated on same act)
- Strickland v. Washington, 466 U.S. 668 (U.S.) (two-prong ineffective-assistance standard)
- Sims v. State, 273 S.W.3d 291 (Tex. Crim. App.) (relevance of evidence to punishment tailoring)