Michael a Rizzo v. State
14-16-00366-CR
| Tex. App. | Aug 1, 2017Background
- Appellant Michael Rizzo was convicted of aggravated sexual assault of his stepdaughter for intercourse when she was under 14; other alleged sexual acts were admitted at trial as extraneous offenses under Tex. Code Crim. Proc. art. 38.37.
- The complainant testified the abuse began when she was 11 and continued through age 15; she reported the abuse in her early twenties.
- The trial court held a hearing outside the jury before admitting the extraneous-offense evidence and ruled it relevant to the parties’ relationship and state of mind.
- Rizzo objected “for the record” but did not request a limiting instruction or a reasonable-doubt instruction when the evidence was admitted.
- Rizzo raised three appellate issues: (1) charge error for the court’s failure to give limiting and reasonable-doubt instructions sua sponte; (2) ineffective assistance of counsel for trial counsel’s failure to request those instructions; and (3) denial of a mistrial after hearsay statements from the complainant’s therapist.
- The court affirmed the conviction, rejecting each issue.
Issues
| Issue | Rizzo's Argument | State's Argument | Held |
|---|---|---|---|
| Charge error: failure to give limiting instruction and reasonable-doubt instruction for extraneous-offense evidence | Trial court erred by not sua sponte instructing jury limiting use of extraneous-offense evidence and about burden of proof for that evidence | No sua sponte duty exists for defensive matters; Rizzo never requested the instructions so evidence was admitted for all purposes | No error: defendant did not request instructions, so court had no duty to give them sua sponte (Delgado/Hammock framework) |
| Ineffective assistance for counsel’s failure to request the instructions | Counsel was deficient for not requesting instructions; silence on record should not excuse failure | Reasonable strategic explanations exist (avoid highlighting evidence or let jury hear full story to attack credibility); record is silent so presumption of reasonable strategy applies | No ineffective assistance: cannot show deficient performance or prejudice on the silent record under Strickland; verdict unlikely different with instructions |
| Motion for mistrial after therapist’s testimony revealing complainant had "past trauma" | Therapist’s unsolicited hearsay was highly prejudicial and warranted mistrial | Comments were cumulative, trial court promptly sustained objections and gave curative instructions; not sufficiently prejudicial | No abuse of discretion: testimony not severely prejudicial, court’s unsolicited instruction cured error, and conviction likelihood unaffected (Mosley factors) |
Key Cases Cited
- Ngo v. State, 175 S.W.3d 738 (Tex. Crim. App. 2005) (trial court’s sua sponte duties and limits on defensive-matter instructions)
- Delgado v. State, 235 S.W.3d 244 (Tex. Crim. App. 2007) (no sua sponte obligation to give limiting instruction for extraneous-offense evidence absent request)
- Hammock v. State, 46 S.W.3d 889 (Tex. Crim. App. 2001) (when defendant fails to request limiting instruction, extraneous offense evidence is admitted for all purposes)
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two-prong ineffective-assistance standard: deficiency and prejudice)
- Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1984) (harm analysis for preserved and unpreserved charge error)
- Mosley v. State, 983 S.W.2d 249 (Tex. Crim. App. 1998) (factors for evaluating mistrial requests: severity, curative measures, certainty of conviction)