Terrence Brent McNeil v. State

McNEIL, Appellant. Brent Terrence Texas, Appellee.

The STATE

No. 01-13-00234-CR. Texas, Appeals

Court Dist.). (1st

Houston

Nov. 2014. Discretionary Review

Petition

Stricken Feb. 2015. Duncan,

Cheri Assistant Public Defend- Houston, TX, er, Appellant. for Anderson, Attorney, Devon District Ab- Miles, bie Assistant District Attorney, Houston, TX, County, Harris State of Texas.

Panel consists Justice Chief RADACK Justices JENNINGS KEYES.

OPINION RADACK, Chief Justice. SHERRY A convicted Terrence felony causing McNeil of murder for 4H September of commit- a child in the course returned to death of Alycia. the apartment According with injury to a child and ting the offense Alycia appellant, just recently punishment prison. as life assessed his —who begun to walk—fell and hit her on a head appellant argues that he appeal, On direct toy piano apartment. Appellant tri- ineffective assistance from his received later having dropped Aly- admitted to also al counsel. We affirm. morning, causing

cia that her to hit her TRIAL TESTIMONY on head the wall. soon noticed Alycia slouching having trou- old Washington’s Anita 19-month breathing. ble age daughter Alycia was small for her n congenital a because she suffered from suggestion, appellant At Anita’s called heart-defect condition. When she was his friend David to drive them to a hospi- old, year Alycia a underwent two about that, Appellant explained tal. to David surgeries to correct open-heart successful Alycia because held her breath when he Despite in her the defects her heart. her, “popped” tried to feed he had her on issues, Alycia from her health recovered stomach, causing her to flail back and surgeries and functioned as a normal and hit her crying, head. After she started toddler, healthy otherwise but with some appellant said that he tried to feed her delays. developmental back, again, again again and she fell hit- ting point stopped her head. At that she Alycia when was Beginning July crying, causing appellant to be alarmed old, Ruby Anita hired about 17-months eventually and call By David. the time Alycia care of Cantu to take at Cantu’s David and arrived at West Hous- By early Anita at work. home while was Hospital, Alycia longer ton was no breath- September year, began of that Cantu ing. life-flighted She was to Texas Chil- head, chest, Alycia’s legs, on notice bruises Hospital. dren’s stomach, point, arm. At one Anita and spanked that she had admitted Cantu The staff at West Houston Medical Cen- thigh. on Alycia Hospital and caused a bruise her ter and Texas found Children’s Anita that she would not Alycia unresponsive When Cantu told and noticed bruises on Alycia day, officially Anita told keep body. Although Alycia be able to one her okay pronounced morning Sep- her that was because Anita’s live-in dead on the of boyfriend, appellant, “baby already wanted to do a she had been tember brain Alycia rolls her camp Lopez boot on her” because dead for some time. Dr. reviewed eyes “gets per- and an attitude.” Cantu testi- records and Alycia’s prior medical that, 8, 2010, Alycia had September autopsy. Apart fied on formed her from the vari- of her head and a injuries Alycia a bruise down the side ous had suffered over 11, 2010, past month and her small September fractured arm. On course of the Alycia’s eyes. abnormality, noticed red dots size due to her chromosomal Cantu Anita’s excuses be “func- appeared Cantu did not believe he testified that she abuse, injuries. Alycia’s Suspecting tioning normally about and was otherwise pictures Alycia’s injuries, healthy.” took Cantu CPS, told Anita that she notified and Alycia’s on head Lopez identified bruises longer keep Alycia.

would no scalp. and There were also bruises on abdomen, the arm that was frac- agreed Alycia legs, then to care for Internally, Alycia a week walking while Anita was at work. After tured before. abdomen, internal hemorrhages in her stop morning Anita to the bus on the of had trial, phase of head, arm, During guilt/innocence eyes. She also had organs, Detec- and Torres and Many hemorrhag- Sergeants Chandler retina. a detached making about the tive Johnston testified es, Alycia’s head and including those on Ap- acute, police investigation. and the abdomen, they tapes meaning were testify, videotaped but his pellant did not autop- within 48 hours of the occurred jury played were before were the cause statements hemorrhages these sy, and objection from his coun- Alycia’s without additional hemorrhages The on death. with sel. abdomen were consistent head and trauma, blunt force

being caused severe felony appellant guilty The found that the manner of Lopez determined life and assessed a sentence of murder Love, Dr. a forensic was homicide. death imprisonment. performed pediatric also anthropologist, that there exam and determined skeletal ASSISTANCE INEFFECTIVE Alycia’s ribs and her had been trauma to OF COUNSEL arm. broken error, con- points In three Videotaped Appellant’s A. State- trial counsel ineffective tends that his ments because, guilt/innocence phase, during the (1) request counsel: failed to a burden-of- Anita, David, voluntari- and all limiting instruction and instruction proof ly Hospital went from the Texas Children’s (2) offenses; failed to raise on extraneous interviews with police to the station for key objections portions day, appel- On that homicide detectives. (3) statements; provided and videotaped videotaped Sergeant Torres a gave lant that, which representation such deficient After his arrest ten months statement. trial’s totality, in its caused the viewed later, videotaped appellant gave additional result to be unreliable. Johnson and statements: one to Detective Applica- A. of Review Standard Sergeant Appellant’s two to Chandler. Law ble officers to- videotaped four statements to

taled about five hours. of ineffective We consider claims two-prong of counsel under the the State and de- assistance pretrial hearing,

At a adopted Washington, in Strickland v. redactions test agreed fense counsel several 2052, 668, 687, 80 to remove 466 U.S. 104 S.Ct. videotaped to the statements (1984). on an inef prevail L.Ed.2d 674 To appellant’s polygraph references to exami- claim, appel race. fective assistance of counsel nation and some comments about (1) perform that counsel’s made lant must show Defense counsel conceded deficient, an meaning ance was it fell below voluntarily and with all four statements reasonableness, argued, objective standard appropriate warnings. Counsel (2) deficiency prejudiced the defen however, a few of the statements and dant, meaning there was a reasonable by were questions tapes officers on that, for the counsel’s defi but improper they ap- probability because cast doubt on the results of the trial credibility, performance, the officers’ cient pellant’s expressed Id.; parte have been different. Ex of the State’s would opinions strength on the (Tex. 202, 246, case, 322 S.W.3d jury Napper, to the that there suggested appel The burden is on jury Crim.App.2010). was additional evidence that the preponderance prove The lant to hearing implicating appellant. See that counsel was ineffective. objections. court overruled those State, 482, strategic imagined.” v. 928 S.W.2d motivation can be McFarland Id. (Tex. State, 436, See also Garcia 57 S.W.3d App.1996). Crim. (“[I]n 440 (Tex.Crim.App.2001) the ab- of Strickland re prong The first sence of evidence of counsel’s reasons for challenged acts or omis quires conduct, challenged appellate court objective fall below the sions of counsel ... will not conclude the challenged con- competence professional standard of under performance duct constituted deficient un- norms. Perez v. prevailing professional less the conduct outrageous was so that no (Tex.Crim.App. competent attorney engaged would have 2010). are Appellate highly courts defer- it.”). evaluating ential to trial counsel and avoid Jury Charge B. Instructions in hindsight. Ingham counsel’s conduct issue, In his appellant argues first (Tex.Crim.App. defense counsel was ineffective because he 1984). Thus, “indulge a courts must failed to that a burden-of-proof that counsel’s strong presumption conduct instruction and a instruction about range within the falls wide reasonable extraneous jury offenses be included in the assistance; is, professional the defen charge. Specifically, he contends that, presumption dant must overcome the court should have instructed the dur- circumstances, challenged under the (1) ing guilt/innocence phase that might action be considered sound trial could not consider evidence of extraneous Strickland, strategy.” 466 U.S. at proven offenses unless the offenses were 104 S.Ct. 2052. (burden-of- beyond a reasonable doubt prong The second of Strickland re instruction), proof and that evidence of quires probability a reasonable the only extraneous offenses could for be used outcome of the case would have been dif purposes, limited and not as of 694, ferent. Id. at 104 A S.Ct. 2052. instruction). appellant’s character (limiting probability probability reasonable is a suf Following jury’s guilty the verdict—and ficient to in undermine confidence the out during a discussion with the court about come, meaning that counsel’s errors must punishment-phase jury charge the —the they deprive appellant be so serious that court asked counsel whether he State, a fair trial. v. Smith 286 S.W.3d in wanted extraneous-offense instructions 333, 340-41 (Tex.Crim.App.2009). jury charge penalty phase. the for the that, in responded guilt/in- Counsel as the Allegations ineffectiveness phase, any nocence he wished to exclude record, firmly in must be founded the in pen- extraneous-offense instructions the affirmatively the record must demonstrate alty phase. explained reasoning He his State, the ineffectiveness. Mallett v. 65 during following exchange: the (Tex.Crim.App.2001). S.W.3d “In been, the rare case in which trial counsel’s inef regard The Court: There’s with to record, trial, apparent guilt/innocent stage specifi- fectiveness is from the counsel], appellate cally, court have re- dispose you address and [defense claim appeal.” Lopez quested on direct that there not be an extraneous (Tex.Crim.App. phase, my instruction at that and it’s 2011). you When the understanding asking record is silent as to the are reasoning alleged deficiency by behind an instruction also be removed from counsel, Charge penalty trial “we will assume that counsel the Court’s [for strategy any phase]. had a reasonable sound lim upon request court That is correct.

Defense Counsel: must— —include only jury may iting instruction want to make Judge, just we State: The proper within its the evidence consider clear. We think record is that the sure 105(a). request When scope. of caution the ex- of an abundance out Tex.R. Evid. ed, include an instruc the court must also given be in there should charge traneous admitted tion not to consider evidence to this injuries attributed all the other finds unless necessarily spe- purpose date a limited child that are that the defen beyond a reasonable doubt to the defendant. and attributed cific offenses. it the extraneous to be clear that dant committed want the record So we (Tex. in not have it strategy George is his trial going it’s he believes Crim.App.1994). there because I to it. Because more attention draw primarily on the Court Appellant relies be thing would think the more cautious parte in Ex Appeals’ opinion of Criminal So we need Charge. in the for it to be Varelas, (Tex.Crim.App. 45 S.W.3d 627 that. to reflect the record 2001) contending that proceeding) in (orig. decision, my It is Defense Counsel: ineffective assistance provided his counsel fact, any I not want do based on about request jury instructions failing in any other attracted to further attention Similarly to this extraneous offenses. possible other miscon- injuries or case, against murder case the State’s to have the extraneous duct that I wish was built on evidence defendant Varelas charge removed or not included. step that his murdered physical abuse that re- Okay. upon The Based Court: over the six weeks daughter sustained then, will remove quest the Court at leading up to her death. stated upon counsel’s] based [defense case, And, trial counsel 629-30. as this request. reasons and failed to burden-of- in Varelas “enti A criminal defendant regard instructions with proof made in to be tried on the accusations tled at 631. The extraneous offenses. Id. he not be pleading the State’s should Appeals reversed of Criminal Court being collateral crime or for tried for some conviction, concluding defendant’s murder State, v. generally.” a criminal Wilkerson was defi performance trial counsel’s 656, (Tex.Crim.App.1987). appropriate jury failing request cient in to crimes, Thus, or wrongs, evidence of other instructions, preju and that defendant the charac prove acts is not admissible to perform by his counsel’s deficient diced defendant, may the but be admissi ter of ance. Id. at 633-34. purposes. Tex.R. legitimate ble for other differences, important howev- There are 404(b). general “The standard or Evid. In er, and Varelas. between this case of an extraneous test for the admission Varelas, Appeals of the Court Criminal can prosecution offense is whether n appeal (1) grant relief on direct refused to transaction is that the offense or show conviction, stating: case, in from the defendant’s to a material issue relevant - (2) probative value of the ways the number of light of outweighs trier of fact its evidence to the a defendant can degree to which inflammatory or nature.” prejudicial of extra- from the admission suffer harm Wilkerson, 786 S.W.2d at 659. evidence, we have trouble neous offense did not understanding why trial counsel only If has been admit proof or request the trial a burden purpose, then specific ted for 2052); regarding Agbogwe instruction these offenses. S.Ct. see also However, the bare record does not re- (Tex.App.-Houston (“It trial strategy. veal the nuances of Fur- pet.) no [1st Dist.] is reason- (or ther, to hold trial counsel’s actions able ... to conclude defense [that] coun- inaction) ineffective in the instant case sel decided that seeking an instruction to speculation spec- would call for and such disregard testimony Ozoh’s only would beyond purview ulation is of this bring it”); further attention to see also Rather, because of the strong Court. Delgado

presumptions (“[T]he trial counsel’s con- (Tex.Crim.App.2007) decision of range duct falls within the wide of rea- request whether to a limiting instruction professional sonable assistance and that concerning proper use of certain evi- such be trial might dence, conduct sound strat- offenses, including extraneous conclude, we must an egy, light of be a matter of trial strategy”). record, otherwise silent appellant’s We overrule first point of showing

failed to meet his burden of error. that his trial counsel’s assistance was objections C. Failure to make ineffective. error, point In his second subsequent corpus Id. at 632. On habeas asserts that his counsel was ineffective for review, proffered trial counsel an affidavit failing object tó to statements made in stating request that “failure to these investigating during officers structions was not the result of trial strate videotaped pro- because their statements gy. oversight.” It was Be simply Id. allegedly bative value was outweighed by cause the “trial could would have been potential prejudice. Appellant argues also required give the instructions had coun that his counsel was deficient for failing to requested given sel them” and the evi object portions of his videotaped state- request dence that the counsel’s failure to hearsay ments as either inadmissible not the trial “product strategy,” improper opinion testimony. Finally, ap- that trial Appeals Court Criminal held pellant contends that failure to counsel’s performance counsel’s was deficient. Id. object videotaped to the use his state- Varelas, Unlike trial counsel’s ments the State improperly allowed strategy expressly here is reflected convict him on “bad character” evidence. record, which demonstrates that counsel specific does not direct us to chose omit a for inclusion of support statements in of each of these ar- n extraneous-offense instructions because' guments, quotes but his brief all the fol- he did not want further attention to lowing statements in support: potential be drawn to extraneous offenses (Second 2011) July 19, Interview — or misconduct committed the defen Well, trial light Q. you dant. this evidence of I will tell this: [Johnson] strategy, injuries that little more appellant has not met his bur there’s are a prong significant you den under the first Strickland that what and Anita have demonstrating explained. say “significant,” that his trial fail I I counsel’s When mean, request jury significant. got ure to instructions on extra mean I she’s bleeding rendered his in her brain. She has a de- representa neous offenses only certain tion deficient. Garcia v. tached retina. And there’s (cit Those (Tex.Crim.App.1994) ways things happen. that those Strickland, 687-89, to a ing things happen at aren’t natural that U.S. know, “you eyes, you out of her by falling coming

child, they happen don’t uh, that, her arm was fractured think piano. a onto ” you her.’ I’m ‘cause of how handled “uh, baby, If ... If I did hurt her like mind, I keep in Q. Right, ... but I to picked up, apologize I her by how has told know what Texas Children’s I “If I baby.” “That’s what said” you, I have them records you, okay, ‘cause her, you baby.” I apologize did hurt here, ... okay? autopsy But I was ... ... that’s the courteous And that’s aware of you’re her. I’m sure done on you somebody by If hurt thing to do. that. accident, .... you apologize. you So A. Yes. why apolo- would I you’re asking but me ... it Okay? That’s what Q. Autopsy gize. stuff. for. This is scientific looks Q. you anything, If didn’t do Yeah. fact that the Okay? it’s a medical And you apologize? why would need to brain, de- bleeding has in her she arm I told her her A: ‘Cause retina, things that she’s tached the other picked up how I her that fractured from only ... going eyes with her there’s got fists], apolo- with I [motioning one time way gets Okay? that there. And one way .. picking up gize that’s been ex- everything from what saying. That’s all I was us, only one that plained you were hap- all started present when this Q. ... I worked child abuse [Chandler] pening. years got ... what? Twelve before I So, ... me a few spending A. here? Q. on. Hold on. Hold that, her, you’re saying with A. Hours your what Q. you I want to tell me sudden, problems just a all all of these through going concerns are and what’s with her? wrong came your right head now. quick. Q. happen [snaps] It can Well, is, I’m a black looking A. I’m at light shutting Like a quick. That switch baby was hurt and she male and immediately. It happens off. It’s acute. card, no race playing I’m not died.... Okay? reality just playing I’m card.... It’s week Q. ago ... Ten months last this doctors, detectives, white look- the white hurry, in a have happened. If I was I’d who, time, male, at a at the ing black you just If I was night. arrested they’re just looking for job, had no somebody, trying put something on hang baby being for the somebody to night. I’d you I’d have arrested dying. hurt and night, Anita if I was have arrested Q.The problem injury is the But, somebody. it just looking put on ... ... means that Like acute Acute get I I all the that’s not how work. happened, ... to have ... Like every of ‘em—and I have one facts— just ... a more severe. Acute like just things. more than those ... very Acute very, mean like severe Usually, right expires,

... before a child away you ... if have but, passes that means A.Okay, you need to under- trauma, like, Anita, something happens if I love and head stand how I function. acute, head, which is your and it’s when that look ... when she’s she has injury, know, had ... She had acute me, what she asking you with tears almost else, usually stop injure by something ... has ... it more that then the child some usually up, injury, day, throws has that all the child made this stuff activity, and then type seizure react. Like that. baby [snaps] dies. Q.It’s hemorrhages the new that Well, up. never threw

A. she her to .... caused die wasn’t the old Well, Q. you said she did. stuff. Was not the old So that’s stuff. I spit up gave A. No. She when problem what the is. never up. She threw CPR. I’m Q. telling you So what that this Q. Right. thing. But that’s the same time, thing top was so severe on this ... up

That whole stuff comes all stuff that healing, this that she 2011) (Third July 19, Interview — make it.... I didn’t have to make sure really ... serious Q. This is [Chandler] that I cover all the you, bases with you baby, when have a and because she because this is a fact. It’s a fact that little, tiny, so and was so and she was significant injury day. she had a that likely not fragile, she was so it’s it, Now, got That’s a fact. how she I way would’ve ... There’s no she should only person don’t know. And the her- injuries could’ve inflicted those on Anita, you, baby. was there was and So, hap- have something self. had to baby talking. The ain’t not here. She’s her, be it an that these pened to accident anyway. She can’t talk things happened, something but had to Q.I’m just giving you an exam- happened things have these oc- baby baby’s then the ... ple, and to her. not like she did ‘em curred It’s dead, signifi- dead. She’s and she has You know how some kids do to herself. trauma, you say cant nothing hap- but ... ... something like that some pened. Something It don’t up. add up. should add You’re not communicat- what, Q. ... they go You know when something.. Maybe you forgot ing some- autopsy say to the ... I hate to this to thing. Maybe you’re thinking. not you, they a but have to take chainsaw Q. That You can’t autopsy is science. across, they have to cut so has measurement, pictures, refute that. It’s cartilage give cut her a across gonna dah-dah-dah-dah-dah. You injury. [slaps gonna brain That’s not sci- refute that. That’s done. That’s ... happen like that. That’s table] body ... ence ... Her death. That gotta it’s be a whole lot more. That’s science. That That’s evidence. ...Q. telling you particular I’m is that Now, you explain how all happened. do died, day, shortly before she she had an that stuff. injury. acute head That’s what caused Now, To demonstrate ineffective as yeah. her death. There’s some object for failure to things happened other to her that sistance of counsel like, injury, testimony, appellant aggravated have admission identify specific objection maybe if none of this other stuff had must have successful. happened ago, maybe prove to her the weeks that it would been (Tex.Crim. concrete, maybe Ortiz she hadn’t fallen on the this, object failure to maybe App.2002). if she An isolated she hadn’t done that, representa not amount to injury may hadn’t done then this does deficient bad, provides whether “counsel you not have been so but when tion because then, to be adequate assistance is healing injuries, you have re- defendant 418 State, 482, 500 McFarland v. 928 S.W.2d representa totality of the

judged by (Tex.Crim.App.1996). or omis by isolated acts rather than tion 932, State, v. Vasquez sions.” Hearsay Opinion 2. 1991, pet. (Tex.App.-Corpus Christi 938 ref'd) (finding performance counsel’s he was de- appellant argues that Next deficient, the cir totality given reasonably assistance effective prived cumstances, wrong he made the though out point counsel “failed counsel because jury argument). objection to expert opin- hearsay and specific improper the various testimony by police during ion 403 Rule of Evidence 1. Texas acknowledges the State’s He statements.” objected hearing, counsel pretrial At the many questions of the position that questioning “the manner which ap- on posed by investigators jury heard materials by reference to outside was done “con- videotaped statements were pellant’s matters,” certain com- and to or outside that the state- But he contends textual.” impermissi- as by Sergeant ments Torres background beyond acceptable went ments testimony. Additional- expert ble medical an such that ob and contextual purposes, admissibility of one objected to the ly, he had his have been sustained jection would statutory on both the statements - objection. an See made such counsel grounds. and substantive grounds 568, State, 580-82 Langham v. (police officer’s testi (Tex.Crim.App.2010) argues that appeal, appellant On informant’s state mony about confidential objections prop were pretrial even if these the line” from ments to him “crossed overruled, erly trial counsel should have relevance, par “background” permissible under Rule 403 of the Texas objected then relied on state ticularly because the State probative that the value Rules of Evidence during closing argu ments as evidence outweighed by the of such evidence was ments). confusion of the danger prejudice, of unfair issues, misleading jury. of the See statement, other Hearsay is “a 403. Tex.R. Evid. while tes made the declarant than one hearing, or offered tifying au- at the trial supporting does not cite of the matter prove the truth pro- how the thority identify specifically or 801(d). Thus, an statement asserted.” Tex.R. any particular value of bative Evid. is admissible out-of-court statement is outweighed by dangers preju- mat truth of the dice, prove un- not offered to misleading confusion v. 939 ter asserted. See Jones Rule 403. See Santellan der (Tex.Crim.App.1992). (Tex.Crim.App.1997) S.W.2d S.W.2d is not testimony by a witness who exhib- (holding “merely list[ing] Opinion these expert may be admissible describing testifying as phrase its in a table with a brief sensory expe firsthand upon ... is not if it is based photographs the content of the State, 92 rience. for this Court to ade- Osbourn enough information A witness (Tex.Crim.App.2002). unarticulated quately address infer opinions and testify in the form of We decline to complaints.... Rule 403 him.”). ences, limited to in testimony but this appellant’s arguments make (1) how, are “ra opinions which to articulate ferences Appellant likewise fails perception tionally based on lodge failure to a Rule absent his counsel’s (2) under statements, “helpful to a clear witness” and objection to a differ- these testimony or the the witness’ likely. standing of ent outcome would have been (“The (Tex.Crim.App.2012). a fact issue.” Tex.R. failure to determination 701; object proper questions to and admissible Fairow Evid. testimony ... not (Tex.Crim.App.1997). opinion An is ineffective assis- tance.”). if upon perception rationally is based person opinion

reasonable could draw the To the extent that of the experi- upon personal knowledge or based beyond statements went context and Fairow, 943 S.W.2d at 899-900. ence. amounted to inadmissible hearsay, we also appellant’s argument ignores note that offering specific argu Without majority complained-of that statements, specific ments about statements about the medical nature of complains police about interviewers’ Alycia’s injuries are cumulative of evidence recounting hospital the contents of and through testimony introduced of Lo autopsy during appellant’s documents examiner, pez, an assistant medical and being hearsay. interviews as videotaped Love, a anthropologist. forensic Chan many with the State that agree We during dler’s appellant’s video comments interviewers’ statements fall within the taped describing hemorrhaging interview bounds of admissible evidence becaüse Alycia’s brain and her detached retina they were not offered for the truth of the supported by Lopez’s testimony are that asserted; rather, they were de matter Alycia subscapular hemorrhages indic providing into signed probe to head, ative of blunt trauma to her bilateral information, given the dis more accurate retinal hemorrhages, partially and a de severity Alycia’s connect between tached retina. injuries appellant’s version of events. Chandler’s statement that subdural he- See Hernandez v. No. 01-08-00306- morrhaging is not a result of “natural CR, (Tex.App. at 2009 WL *6-8 child, things happen that to a and [does 14, 2009, May pet. -Houston Dist.] [1st happen by falling piano,” onto a not] ref'd) (mem. op., designated publi for only way gets that “there’s one cation) (holding that “statements made there,” testimony is consistent with Love’s police during officers an interview are not Alycia’s injuries were not consistent only hearsay they give are offered expect with what she would to see from a replies, context to the interviewee’s even if regular fall. statement was Chandler’s lying the officers accuse the interviewee of Lopez’s testimony also consistent with and refer to the statements of unnamed a normal fall from a stand- toddler “[w]ith witnesses”). only “Statements offered ing ground, to the I would not position show their effect on the listener are not severity expect see that of subdural and inter hearsay.” Viewing Id. at *6. hemorrhages.” According retinal to Lo- whole, views as a we conclude severe, “very forceful pez, it would take a about the con interviewers’ statements injuries blow to her abdomen” to cause the hospital autopsy tents of the records Alycia had. gave context to answers and Similarly, description reactions. has thus not demon Chandler’s of what happens “right expires” statements before a child strated redaction these required Lopez’s testimony have even had with that it would been his consistent objected. reject suffering counsel We therefore would not be unusual a child argument object injury that counsel’s failure to from a brain exhibit seizure-like directly activity sup- ineffective of coun or vomit. While not constituted assistance Jimenez, by testimony, comments parte ported sel. Ex Chandler’s case, it called a witness that experts’ State sufficiently aligned with were such, they cannot be held in testimony offer no favorable testimony; as knew would error.1 We thus case, for harmful by the basis as demonstrated the" support of its evidence dis- the medical conclude testimony unfavorable at two witness’s during appellant’s by interviewers cussed hearings. Id. at 4-5. The State previous was cumulative and videotaped statements impeach a different witness to then called harmless. its admission testimony witness with about first objection of to these the lack cannot show prior first witness’s inconsistent state- ineffective assis- constituted statements at 4. The ments. Id. Court Criminal State, v. 928 S.W.2d tance. See Frohne allowing that the trial court’s Appeals held 570, (Tex.App.-Houston [1st Dist.] 576 guise call a witness under the the State to denied, ref'd), 1996, Frohne v. cert. pet. highly in otherwise impeachment get to 812, 57, Texas, 139 118 S.Ct. 522 U.S. was im- prejudicial, inadmissible evidence State, (1997); Marlow v. 886 L.Ed.2d 21 erro- proper under the circumstances and 314, (Tex.App.-Houston [1st S.W.2d Rule 403 of the Texas Rules neous under ref'd); see also Jensen pet. Dist.] of Evidence: State, (Tex.App.-Hous maybe legitimate reasons While these ref'd) 2002, pet. (citing Dist.] ton [14th testify at calling appellant’s for K.P. to (Tex. 912-13 Matz v. trial, the State fails to offer this Court ref'd)) (When 2000, pet. App.-Fort Worth K.P. any explanation why expected for videotape in “a cumula [are] statements testify differently than she had at the properly admit witness’s] tive of [another pretrial hearing. importantly, More issue, if testimony on the same even ted however, an of the record examination admitting in the vid the trial court erred reveals the State elicited no favorable disregard the error be eotape, we must testimony from K.P. The lack of favor- appellant’s have affected cause it could not testimony suggests the State was able rights.”). substantial attempting prior to use K.P.’s inconsis- Evidence 3. Character guise tent under the of im- statements purpose peachment primary for contends that Finally, appellant which placing jury before the failing his counsel was ineffective was not otherwise admissible. Conse- use of object that of the State’s “[m]ueh little, quently, we conclude State akin to call [appellant’s] statements] purpose admitting any, legitimate impeach purpose a witness for the ing prior inconsistent statements to K.P.’s character.” ing him with evidence of bad impeach testimony. Due to the Hughes he cites support, nature of this evidence highly prejudicial In that (Tex.Crim.App.1999). generally being injury one that has oc- 1. While Chandler’s statements were acute most of by medically supported other autopsy accurate and curred in the last 48 hours. But points expla- testimony, appellant out that her testimony overwhelming- and medical results "acute” was not correct. nation of term were, fact, ly Alycia’s injuries show that interview, During videotaped Chan- the third acute. We are thus confident both severe and dler tells means like "[a]cute that acute that Chandler's misstatement injury very, very an acute severe” and that impacted the means severe could not have Lopez in the immediate death. results child’s jury’s interpretation severity ac- of the Love, however, correctly testified that the- injuries, tual on which the heard exten- "acute” "chronic” are used to refer terms testimony multiple from witnesses. sive occurred, recently injury with an to how any probative performance by value it cient failing object we conclude substantially outweighed videotaped have had was admission of his statements as effect. prejudicial improper impeachment its and character evi- dence. Id. at 7. similar, case is

Appellant insists this point We overrule second the State argues played up because error.

during opening closing statement and ar- Totality Representation D. of the guments videotaped that his interviews re- self-absorbed, that he “a flected self- error, point In his third of appellant liar,” jury may the centered have convicted contends that —when in light viewed of the him of alleged of murder because “his totality representation of the coun —trial liar.” character as an insensitive Accord- deprived appellant sel’s conduct of reason that ingly, appellant contends his counsel able effective of assistance counsel. See failing object was ineffective for Frangias v. videotaped

admission of interviews “al- his (“[A] (Tex.Crim.App.2013) reviewing court place lowed the State to him on trial for totality representa must look to the of the character, impeaching bad in effect him in gauging adequacy tion the of counsel’s through though his statements even he performance.”). Appellant has not demon testify.” not elected strated, in light totality repre of the of the strength sentation and the of the evidence Hughes inapposite. is This case does appellant complained, about which has not involve an not use of otherwise inadmissi- a probability reasonable prior impeach testifying ble statement to a would have delivered a different verdict. Appellant’s videotaped witness. state- were under the rule per- ments admissible We overrule point third mitting prior an statement be accused’s error. if the “free- admitted statement made ly voluntarily compulsion and without CONCLUSION or persuasion.” Tex.Code Crim. Proo. Ann. affirm judgment. We the trial court’s (Vernon 2005). Appellant

art. 38.21 does challenge not the voluntariness of his police,

statements to and he cites us no JENNINGS, concurring. Justice authority for excluding prior accused’s JENNINGS, J., concurring. TERRY statement from evidence because the State prior argue relies on statement to join majority analysis I in its the accused had been untruthful and not appellant, second and third issues of Ter- alleged shown remorse about the accused However, rence Brent McNeil. because charged role in the conduct. appellant specifi- which evidence about addition, out, not, points cally complains In as the State in his first issue does asserts, general allegations in he constitute evidence of an appellant’s brief do as offense, act, 'identify wrong, which amounted to extraneous or bad but statements evidence, I con- pur- general background inadmissible character evidence for rather Tex.R.App. poses impeachment. judgment affirming See cur in the of this Court P. 38.1(i). felony mur- Appellant has thus failed to dem- his conviction of offense onstrate that his counsel rendered defi- der.1 19.02(b)(3) (Ver- 2011). §

1. non See Tex Penal Ann Code issue, tance, argues relies on Varelas. In his first Varelas, provided him with ineffec- presented his trial counsel the State evidence that defendant, counsel committing “fail[ed]- tive assistance because before murder, and a bur- instruction capital offense charged had of- instruction on extraneous den-of-proof specific committed extraneous bad acts fenses.” complainant: he had against “exces- in a sively complainant] dunked swim- [the to be tried on A defendant “entitled ming pool, ‘thumped’ had the- back plead the accusations made in the State’s foot, head, pushed her with his had be tried for some ing and he should not her sit still for over made on a couch two being a criminal collateral crime hours, hit night and had her the before her Varelas, parte generally.” Ex argued Id. at State death.” 630. And the (Tex.Crim.App.2001) (orig. pro [appellant] “because had committed these 736 ceeding) (quoting Wilkerson acts, he must have been the [extraneous] (Tex.Crim.App.1987)). S.W.2d complainant’s] person responsible for [the Thus, extraneous of- generally, evidence of attorneys Id. The death.” defendant’s did fenses, admissi- wrongs, or bad acts “is not “request proof not that of either burden in person the character of a prove ble to in limiting be included the instructions conformity there- action in order show guilt/innocence charge regarding these 404(b). ex- However, it with.” Tex.R. Evid. acts, though attorneys traneous even the purposes, admissible for other be during pre-trial hearings noted that such motive, in- opportunity, of proof “such as proper.” instructions would Id. Noting be tent, plan, knowledge, identi- preparation, that trial have “[t]he court would been of accident.” Id. ty, or absence mistake or required give the instructions had coun- evidence of Once a trial court rules that them, requested sel reasonable coun- offense, or bad act is wrong, an extraneous sel would have the requested instructions admissible, jury must the about instruct case,” the facts of the court given th[e] the limitation on its of the extraneous use appeals performance criminal held that the requests. if the defendant Vare matter so of the defendant’s counsel was trial “defi- las, at 631. The Texas Court at cient.” Id. 632. explained that Appeals Criminal has also “ in evidence of crimes is Here, “when collateral in to the defendant contrast purposes Varelas, troduced for one the various present- complaint, as admissi for which such evidence becomes briefing in his about ed to this Court his ble, they jury the should be performance, instructed trial counsel’s does actu- against cannot consider the defendant such any ally specific concern extraneous of- crimes, been shown fense, Rather, collateral unless it has wrong, appel- or bad act. their satisfaction the accused is complains generally only lant about the ” guilty thereof.’ Id. (quoting following: Lankford S.W. 93 Tex.Crim. The extraneous offense start- (1923)). words, jury In other the should witness, Cantu, Ruby ed with the first be instructed that it is not to consider babysat complainant] who starting [the extraneous-offense evidence unless it be in July of 2010. Ms. testified that Cantu beyond lieves reasonable doubt that the care, three the first weeks of child she defendant committed the offense. Id. injuries did not notice bruises or support In of his that his trial argument [complainant]. on the When Ms. Cantu provided complainant’s counsel him ineffective assis- became ill and called [the up complainant be able to the from say picking she would not her moth- mother] 7, 2010, er on September Ms. the com- [complainant], care for the Cantu bruising on plainant her head and left [appellant, boyfriend learned (3) arm; learned, mother], babysit. driving after the com- complaint’s would plainant and her mother Thereafter, hospital, noticed the to the [com- Ms. Cantu complainant’s more that the arm had been bro- plainant] quiet had become (4) ken; and did not think the began She also to notice mother’s withdrawn. for bruising. explanation complainant’s injuries ever-more serious Characterizing sense.” “ma[d]e above early September, when Ms. Cantu evidence,” evidence as “extraneous offense picked up [complainant] from [her appellant complains that it “all came be- workplace, at she noticed mother] [her] objection, fore the with no and no [complainant’s] bruises on the head for a instruction and bur- complainant’s arm. She drove [the left proof den of instruction.” also [complainant] and the to the mother] generally complains about testimony hospital. day She learned the next Drs. Lopez Love and about “extraneous [complainant’s] ami was broken. injury [complainant].” acts of to the How- explanation mother’s] [com- [The ever, provide while he does one record cite injuries did not make sense plainant’s] doctor, testimony for the of each a review photographed to Ms. Cantu. Ms. Cantu portion of the record cited does not complain- the bruises she saw on [the any testimony reveal about an extraneous ant], called Protective Ser- Children’s offense, wrong, by act committed bad vices, telling and concocted excuse appellant. complainant’s she [the mother] longer babysit.

could no This extrane- Although appellant, briefing, in his ous offense evidence all came before the the characterizes evidence about which jury objection, with no and no complains he now as “extraneous offense limiting for a instruction and burden-of- evidence,” actually general it constitutes proof instruction. background previous inju- evidence about

The State also offered evidence of ex- by complainant ries sustained the and injury [complain- to the traneous acts mother’s, appellant’s, explana- not through testimony the of forensic ant] injuries. only portion tions for those The The anthropologist Dr. Jennifer Love. actually testimony of Cantu’s con- theory further State bolstered its her observation that appellant cerns is for the ex- [appellant] responsible was quiet the “more complainant became [complain- traneous offenses—and the withdrawn” and had “ever-more-serious testimony through the ant’s] babysat after had the bruising” appellant death — assistant medical examiner Dr. Ana Lo- complainant July in 2010. The bulk of pez, and her records. appellant’s complaint Cantu’s .concerns complainant’s injuries observations of the added) (internal (Emphasis citations omit- mother, appel- in of her not presence the ted.) ' lant. sum, appellant complains the (1) by court of criminal jury explained heard evidence that Cantu ob- As complainant appeals, general background served that the “more evidence “is became admissible, quiet particularly and withdrawn” and had “ever-more- not because it has respect value to bruising” appellant baby- compelling probative serious after with (2) offense, 2010; observed, July alleged after the elements of the but sat her house, in that somebody else was there jury with provides it simply because her and you’ve heard about equipped to too. And jury that the so perspective, like. context, and what she was happened what other proper evaluate in up I make those references to elemental didn’t directly relates that more complainant] was neglect when [the Langham facts.”2 many the womb. How (emphasis barely out of (Tex.Crim.App.2010) care omitted). words, you have CPS the trier children do know puts In other year than a old? to evaluate workers at less position fact “in a better deciding facts for evidence and determine re- Trial counsel also used the evidence learning after proposition a material injuries other garding complainant’s Hoffman, T. background.” Texas Peter complainant that the argue to the (2011 Handbook Evidence and, thus, Rules of “fragile” child when ed.). “thus background evidence General death, her on the date of her injured “[h]e proposition the material tends to make reckless, he was negligent, he was Id. Because it is likely.” or less more intentionally injure wrong,” but he did not relevant, See generally it is admissible. complainant and cause her death. Tex.R. Evid. 402. appellant spe- The evidence about which

Here, by appellant briefing in his brief- in his to this cifically complains as noted extra- specific her mother does not concern complainant and Court ing, Alaska, offense, wrong, or bad act commit- from where neous moved to Houston him which would warrant file due ted behind a caseworker mother “left burden-of-proof instructions. Accord- and medical evi- neglect child suspected ingly, I would hold that has [complainant’s] failure dence of the Further, per- complainant’s moth- that his trial counsel’s established thrive.” for failure to re- with formance was deficient “charged connection er was also See Strickland v. Important- quest such instructions. complainant. the death” of the 687, 668, 104 S.Ct. Washington, one testi- 466 U.S. ly, by appellant, “[n]o as noted (1984). 2052, 2064, 80 L.Ed.2d 674 injure” abuse or having fied to seen [him] contrast, majority trial counsel “of- the holds complainant, and his trial counsel’s records to show the has not established his [com- fered medical “trial was deficient because history performance medical plainant’s] extensive —in- expressly here is re- strategy and failure counsel’s cluding neglect treatment for record, in the which demonstrates problems that ex- flected to thrive —and medical a request that counsel chose to omit from birth.” isted instructions inclusion of extraneous-offense Indeed, actually trial counsel used want further atten- because he did not complainant’s other regarding potential tion to be drawn to extraneous neglectful care injuries and her mother’s by the offenses or misconduct committed that, jury although appel- argue defendant.” “probably” that he had lant had admitted majority, both the court Septem- arm on As noted complainant’s broken the 7, and this have injured appeals her on the date of of criminal Court ber 2010 and death, attorney’s intentional omis- stated that an " offense, charged ‘background’ contextual background be 2. General evidence should not " possesses compo- a "character confused with 'same evidence,” contextual evidence” transaction’ State, 79, offenses, Mayes S.W.2d nent.” See v. which concerns other (Tex.Crim.App.1991). wrongs, primary connected to a 86-88 and bad acts offense, acts, in limiting burden-of-proof wrongs ous and bad in reali- sion of jury charge might ty, guilty plea. from a be constitutes a structions strategy. reasonable trial See considered above, Regardless, as discussed we need (Tex. 244, v. Delgado not reach the issue in this case. (“[T]he of wheth Crim.App.2007) decision con er to instruction evidence, of certain

cerning proper use offenses, may be a

including extraneous strategy”); Agbogwe

matter of trial (Tex.App.- (“It pet.)

Houston no [1st Dist.] ... reasonable to conclude defense [that] LOPEZ, Appellant Jesse seeking an counsel decided that instruction disregard testimo [extraneous offense] ny only bring would further attention to Texas, Appellee. The STATE of it.”). No. 01-14-00005-CR. However, appears readily apparent Texas, Appeals Court of strategy,” that such a “trial as a matter of (1st Dist.). Houston law, should not be considered reasonable guilt phase and sound at the of a criminal Nov. 2014. Indeed, jury properly

trial. if a is not may only

instructed that it consider evi- that a an ex-

dence defendant committed offense, wrong, or act for a

traneous bad char- purpose, prove

limited

acter “to action in defendant show therewith,”

conformity jury may then the evi- fact consider the extraneous offense improper purpose for the

dence estab-

lishing conformity action in with character.

Moreover, if the is not further in-

structed that consider such evi- only beyond

dence it believes a reason-

able doubt that the defendant committed offense, act, wrong,

the extraneous or bad jury may actually

then the consider the

evidence, beyond even if it does not believe

a reasonable doubt defendant

committed the extraneous offense. In ef-

fect, “strategy” of not re- so-called burden-of-proof

questing instruction offense, wrongs,

evidence of extraneous actually

and bad acts relieves the State of Thus, proof.

its burden of the failure to proper limiting and burden-of-

proof instructions for evidence of extrane-

Case Details

Case Name: Terrence Brent McNeil v. State

Court Name: Court of Appeals of Texas

Date Published: Nov 20, 2014

Citation: 452 S.W.3d 408

Docket Number: 01-13-00234-CR

Court Abbreviation: Tex. App.