Houston sicko who raped 23-month-old niece and 14-year-old girl and infected them with HIV sentenced to life in prison

Case Number: 01-16-00256-CR

Judge: Sherry Radack

Court: Court of Appeals For The First District of Texas

Plaintiff's Attorney:

Katie Davis
Daniel McCrory
The Honorable Kim K Ogg

Defendant's Attorney:

Gerald Bourque

Description: When Jane1 was in middle school and appellant was 32, she began a sexual
relationship with him. Jane knew appellant as her little brother’s father, and he had
lived with her family on and off through the years. Jane had an on-going sexual
relationship with appellant, which continued even after he separated from her
mother. When Jane became pregnant, her grandmother suspected that appellant
was the father, which Jane denied, claiming that she was involved with a boy at her
school.
When Jane was three months pregnant, she miscarried. As a result of her
miscarriage, the doctors performed surgery on her, at which time they saved some
fetal tissue. The fetal tissue was compared to appellant’s DNA, and he could not
1 The pseudonym “Jane” will be used for the child victim in this case. See TEX. R. APP. P. 9.10(a)(3); McClendon v. State, 643 S.W.2d 936, 936 n.1 (Tex. Crim. App. [Panel. Op.] 1982).
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be excluded as the father. At trial, the State also presented evidence that both
appellant and Jane were infected with HIV.
ADMITTING HIV EVIDENCE IN VIOLATION OF RULE 403
In his first point of error on appeal, appellant contends that “[t]he trial court
abused its discretion by allowing evidence regarding HIV during guilt innocence
without performing the required rule 403 balancing test” to determine whether the
relevancy of the HIV evidence was substantially outweighed by a danger of unfair
prejudice. See TEX. R. EVID. 403 (“The court may exclude relevant evidence if its
probative value is substantially outweighed by a danger of . . . unfair prejudice . . .
.”). Specifically, appellant argues that “[t]he trial court failed to perform the
necessary rule 403 balancing test when it made the decision to allow HIV evidence
into the guilt innocence phase of trial[,]” and “the record does not reflect that the
trial court engaged in the proper balancing test before ruling on the admissibility of
the HIV evidence.”
In Howland v. State, 966 S.W.2d 98, 103 (Tex. App.—Houston [1st Dist.]
1998, aff’d, 990 S.W.2d 274 (Tex. Crim. App. 1999), this Court considered what
the record must reflect regarding a 403 balancing test, stating as follows:
Appellant first complains the trial court erred in refusing to conduct a rule 403 balancing test. The trial court must perform a rule 403 balancing test if requested. See [Santellan v. State, 939 S.W.2d 155, 169 (Tex. Crim. App. 1997)]. However, it need not conduct a formal hearing or even announce on the record that it has mentally conducted this balancing test. Yates v. State, 941 S.W.2d 357, 367 (Tex. App.—
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Waco 1997, pet. ref’d); Luxton v. State, 941 S.W.2d 339, 343 (Tex. App.—Fort Worth 1997, no pet.). Here, appellant objected on rule 403 grounds after brief argument, the trial court overruled the objection, appellant then requested the trial court to conduct a rule 403 balancing test, and the trial court again denied the objection and request to balance. By overruling appellant’s rule 403 objection the first time, the trial court necessarily conducted the balancing test by considering and overruling the objection. Yates, 941 S.W.2d at 367; Sparks v. State, 935 S.W.2d 462, 466 (Tex. App.—Tyler 1996, no pet.). That is, we may presume from the record before us that the trial court conducted the balancing test and found the evidence more probative than prejudicial. Luxton, 941 S.W.2d at 343; Sparks, 935 S.W.2d at 466.

Id.
Here, appellant filed a motion in limine, asking that before the State offered
HIV evidence, it approach the bench to discuss its relevancy. Specifically,
appellant objected:
It is my position that evidence is not relevant. And even if it were relevant, its prejudicial effect far outweighs its probative value in this particular case.

* * * *

I think that is just not relevant. And even if it were relevant, it’s too prejudicial—it is so prejudicial that it—the prejudice far outweighs its probative value.

After appellant’s objection, and hearing arguments thereon, the trial court
took the issue under advisement, and at the next hearing overruled appellant’s
relevancy objection. Appellant then stated, “I also ask you at this time to make a
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ruling as to whether or not . . . the prejudicial effects of that particular evidence . . .
outweighs its probative value.” The trial court then ruled as follows:
Okay. The Court finds that the probative value of evidence that the defendant was infected with HIV and showing that the defendant had sexual contact with the victim, who was infected with the same disease, is not substantially outweighed by the danger of unfair prejudice. And that’s Rule 403.

In Howland, this Court presumed that the trial court had performed the
balancing test because it overruled the defendant’s Rule 403 objection. Id. at 103.
Here, no such presumption is necessary because the trial court specifically states
that it has performed the balancing test and concluded that the HIV evidence “is
not substantially outweighed by the danger of unfair prejudice.” The trial court
was not required to provide details in the record regarding how it arrived at its
conclusion. See Yates, 941 S.W.2d at 367. By overruling appellant’s Rule 403
objection, the trial court necessarily conducted the balancing test when it
considered the objection. Id. A trial court is presumed to have conducted the
proper balancing test if it overrules a 403 objection, regardless of whether it
conducted the test on the record. See Williams v. State, 958 S.W.2d 186, 195–96
(Tex. Crim. App. 1997); Wilson v. State, No. 01-11-01125-CR, 2015 WL 1501812,
at *7 (Tex. App.—Houston [1st Dist. Mar. 31, 2015, pet. ref’d) (not designated for
publication).
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Because the trial court properly conducted a Rule 403 balancing test and was
not required to give further reasons for overruling appellant’s Rule 403 objection,
we overrule appellant’s first issue on appeal.
PROSECUTORIAL MISCONDUCT
In his second issue on appeal, appellant contends that “[t]he prosecution’s
conduct was calculated to prejudice the appellant and deny him a fair trial.”
Specifically, appellant alleges (1) that “[t]he prosecution repetitively emphasized
HIV & AIDS in a manner reasonably calculated to prejudice the appellant and
deny him a fair trial[;]” (2) “[t]he Prosecutor’s improper bolstering of the
complainant was conduct calculated to deny the Appellant a fair trial[;]” (3) “[t]he
religious emphasis of the complainant’s testimony improperly bolstered her
credibility and prejudiced the Appellant’s due process rights[;]” (4) “[t]he
Prosecutor improperly bolstered the complainant’s credibility when the
complainant was allowed to wear a Junior ROTC uniform during the trial[;]” (5)
“[t]he Prosecution’s response to evidentiary objections raised by the trial counsel
reveal the intent of the prosecution to bypass the rules of evidence and procedure
in order to elicit improper testimony during trial[;]” and (6) “[t]he cumulative
effect of the Prosecution’s conduct during the trial denied the appellant the right to
a fair trial.” In support of his allegations of prosecutorial misconduct, appellant
points to several passages of testimony in the record.
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Prosecutorial misconduct is an independent basis for objection that must be
specifically urged to preserve error. Hajjar v. State, 176 S.W.3d 554, 566 (Tex.
App.—Houston [1st Dist.] 2004, pet. ref’d); see also Temple v. State, 342 S.W.3d
572, 603 n.10 (Tex. App.—Houston [14th Dist.] 2010), aff’d, 390 S.W.3d 341
(Tex. Crim. App. 2013) (same); Perkins v. State, 902 S.W.2d 88, 96 (Tex. App.—
El Paso 1995, pet. ref’d) (holding appellant’s failure to object on the basis of
prosecutorial misconduct waived that asserted error on appeal).
In none of the passages relied on by appellant in this point of error does he
object based on prosecutorial misconduct. To preserve a prosecutorial misconduct
complaint, a defendant must make a timely and specific objection, request an
instruction to disregard the matter improperly placed before the jury, and move for
a mistrial. Penry v. State, 903 S.W.2d 715, 764 (Tex. Crim. App. 1995).
Appellant did none of this, thus error is waived. See Clark v. State, 365 S.W.3d
333, 340 (Tex. Crim. App. 2012) (holding that evidentiary objections at trial did
not present trial court with opportunity to rule on due process claim raised on
appeal, thus due process claim was waived.).
While acknowledging “that [he] failed to properly preserve many errors,”
appellant, relying on Rogers v. State, 725 S.W.2d 350 (Tex. App.—Houston [1st
Dist.] 1987, no pet.), contends that preservation was not required. Rogers involved
flagrant and repeated misconduct by the prosecutor, who repeatedly made side-bar
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remarks and suggested inflammatory facts that lacked evidentiary support. Id. at
358–61. The Court concluded that the prosecutor acted in bad faith and that her
behavior “could serve no purpose other than to inflame and prejudice the minds of
the jurors.” Id. at 360. Based on these facts, the defendant was allowed to raise
prosecutorial misconduct as a point of error on appeal, even though he failed to
preserve the point of error. Id. at 359–60. In so holding, this Court stated:
Whe[n] there is serious and continuing prosecutorial misconduct that undermines the reliability of the fact[–]finding process or, even worse, transforms the trial into a farce and mockery of justice, as occurred here, resulting in deprivation of fundamental fairness and due process of law, the defendant is entitled to a new trial even though few objections have been perfected.

Id.
We cannot say that the prosecutor’s conduct in this case was the sort of
flagrant repeated misconduct at issue in Rogers, or that it deprived appellant of
fundamental fairness or due process of law. As such, appellant’s failure to object to
prosecutorial misconduct waives that issue.
We overrule appellant’s second issue on appeal.
INEFFECTIVE ASSISTANCE OF COUNSEL
In his third issue on appeal, appellant contends that he received ineffective
assistance of counsel. Specifically, he complains that (1) the trial court did not
conduct a hearing on his pro se motion to dismiss counsel[;] and that trial counsel
was deficient for failing to (2) “re-urge his pre-trial 403 objection to HIV
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testimony, or ask for a running objection to the mentioning of HIV[;]” or (3)
reasonably investigate the case in preparation of trial.
Standard of Review
Strickland v. Washington sets the standard of review for claims of
ineffective assistance of counsel. 466 U.S. 668, 687–96, 104 S. Ct. 2052, 2064–69
(1984); accord Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). To
prevail, an appellant must first show that his counsel’s performance was deficient.
Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Bone, 77 S.W.3d at 833.
Specifically, an appellant “must prove, by a preponderance of the evidence, that his
counsel’s representation fell below the objective standard of professional norms.”
Bone, 77 S.W.3d at 833. Second, an appellant “must show that this deficient
performance prejudiced his defense,” meaning that he “must show a reasonable
probability that, but for his counsel’s unprofessional errors, the result of the
proceeding would have been different.” Id. Thus, the “benchmark for judging any
claim of ineffectiveness must be whether counsel’s conduct so undermined the
proper functioning of the adversarial process that the trial cannot be relied on as
having produced a just result.” Strickland, 466 U.S. at 686, 104 S. Ct. at 2064.
In assessing counsel’s performance, we consider the entire representation,
indulging a strong presumption that the attorney’s performance falls within the
wide range of reasonable professional assistance. Thompson v. State, 9 S.W.3d
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808, 813 (Tex. Crim. App. 1999). If we can imagine any strategic motivation for
counsel’s conduct, we presume that counsel acted for strategic reasons. Thompson
v. State, 445 S.W.3d 408, 411 (Tex. App.—Houston [1st Dist.] 2013, pet. ref’d)
(citing Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001)). Further, a
claim of ineffective assistance must be firmly supported in the record. Thompson, 9
S.W.3d at 813.
Hearing on appellant’s pro se motion to dismiss trial counsel
On September 28, 2015, several months before trial, appellant filed a pro se
motion to substitute counsel. The motion did not request a hearing, and there is
nothing in the record to indicate that it was ever presented to the trial court or that
appellant ever requested a hearing. Nonetheless, appellant contends that the trial
court erred by not having a hearing and ruling on his motion to substitute counsel.
However, a trial court is not required to hold such a hearing sua sponte. See
Malcom v. State, 628 S.W.2d 790, 791 (Tex. Crim. App. 1982); Hill v. State, 666
S.W.2d 663, 667 (Tex. App.—Houston [1st Dist.] 1984), aff’d, 686 S.W.2d 184
(Tex. Crim. App. 1985). Appellant has waived this issue on appeal by failing to
request a hearing on his pro se motion to substitute counsel. Malcom, 628 S.W.2d
at 792.
Accordingly, we overrule appellant’s third issue as it relates to the trial
court’s failure to hold a hearing on his motion to substitute counsel.
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Counsel’s failure to pursue ruling on rule 403 objection to HIV evidence
Appellant also contends that his trial counsel was ineffective because, even
though he filed a motion in limine to have the State approach the bench each time
it mentioned the subject of HIV evidence, he did not re-urge his rule 403 objection
during trial. Specifically, appellant states that “[d]uring the trial on the merits, of
the fifty-five times HIV or AIDS was mentioned, trial counsel did not re-urge his
pre-trial 403 objection to HIV testimony, nor ask for a running objection to the
mentioning of HIV.”
However, it is not ineffective to fail to object to admissible evidence. See
McFarland v. State, 845 S.W.2d 824, 846 (Tex. Crim. App. 1992) (holding not
ineffective assistance to fail to object to admissible evidence). The HIV evidence
was relevant under rule 401 because evidence that the defendant and Jane had the
same sexually transmitted disease was probative of appellant’s guilt for sexual
assault. See Steadman v. State, 280 S.W.3d 242, 249 (Tex. Crim. App. 2009)
(finding evidence that child had same sexually transmitted disease as appellant
probative of guilt for aggravated sexual assault); Franklin v. State, 986 S.W.2d
349, 356 (Tex. App.—Texarkana 1999) (“Evidence that [the defendant] is infected
with a disease commonly spread by sexual contact and that the victim is infected
with the same disease makes it more likely that he had sexual contact with her.
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Thus, it is relevant.”), rev’d on other grounds, 12 S.W.3d 473 (Tex. Crim. App.
2000).
And, any prejudice caused by admission of the HIV evidence did not
substantially outweigh its probative value. See TEX. R. EVID. 403. A rule 403
balancing test includes consideration of four factors: (1) the probative value of the
evidence; (2) the potential to impress the jury in some irrational yet indelible way;
(3) the time needed to develop the evidence; and (4) the proponent’s need for the
evidence. Mechler v. State, 153 S.W.3d 435, 440 (Tex. Crim. App. 2005). Here,
the evidence had probative value because appellant and Jane both had the same
sexually transmitted disease. See Steadman, 280 S.W.3d at 249. While the HIV
evidence may have been prejudicial, it was not unfairly prejudicial. See Mechler,
153 S.W.3d at 440 (stating that rule 403 focuses on the danger of unfair prejudice).
The HIV evidence directly related to the charged offense, and it was not offered as
evidence of appellant’s bad character, but as circumstantial evidence that
appellant’s sexual organ had contacted Jane’s sexual organ. The HIV evidence did
not substantially delay the State’s presentation of the case, but was admitted
through witnesses, such as Jane, her grandmother, the detective, and Jane’s doctor,
all of whom were also testifying for other reasons. Finally, the State needed the
circumstantial evidence of sexual contact because defense counsel’s strategy at
trial was to attack the fetal tissue DNA evidence it had suggesting that appellant
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was the father of the Jane’s child. The additional circumstantial evidence of sexual
contact provided by the HIV evidence strengthened the State’s case, which was
necessary because of appellant’s attack on the DNA evidence. As such, the trial
court did not abuse its discretion by concluding that rule 403 did not require
exclusion of the relevant HIV evidence.
Because the HIV evidence was properly admitted, defense counsel was not
ineffective for failing to object to it. McFarland, 845 S.W.2d at 846. Accordingly,
we overrule appellant’s third issue as it relates to appellant’s claim that defense
counsel was ineffective for failing to pursue a rule 403 objection to the HIV
evidence.
Counsel’s failure to reasonably investigate to prepare for trial
Appellant also contends that his trial counsel’s “failure to conduct a
reasonably substantial investigation” deprived him of effective assistance of
counsel at trial. Specifically, appellant points to counsel’s failure to “request
investigatory and expert witness fees from the trial court,” or to “independently
interview the prosecution’s witnesses . . . or treating doctors[.]” Appellant also
claims that trial counsel “barely spent time conferring with the Appellant outside
of court, nor did he do any research on the relevant law involved in the case.”
A claim for ineffective assistance based on trial counsel’s general failure to
investigate the facts of a defendant’s case is insufficient absent a showing of what
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the investigation would have revealed that reasonably could have changed the
result of the case. Stokes v. State, 298 S.W.3d 428, 432 (Tex. App.—Houston [14th
Dist.] 2009, pet. ref’d) (citing Cooks v. State, 240 S.W.3d 906, 912 (Tex. Crim.
App. 2007)); Jordan v. State, 883 S.W.2d 664, 665 (Tex. Crim. App. 1994)
(holding that trial court did not abuse its discretion in denying hearing on motion
for new trial because defendant “failed to say why counsel’s investigation was
deficient, or what further investigation would have revealed.”). “Likewise, a claim
for ineffective assistance based on trial counsel’s failure to interview a witness
cannot succeed absent a showing of what the interview would have revealed that
reasonably could have changed the result of the case.” Stokes, 298 S.W.3d at 432.
Appellant has not shown what a further investigation by defense counsel
would have revealed, nor has he shown what an expert or other witnesses would
have testified to had defense counsel spoken to them. As such, appellant has not
shown a reasonable likelihood that but for the alleged failures, the results of the
trial would have been different. See Stokes, 298 S.W.3d at 432; Jordan, 883
S.W.2d at 665. Accordingly, we overrule appellant’s third issue as it relates to the
appellant’s claim that defense counsel was ineffective for failing to adequately
investigate before trial.


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Conclusion
Having rejected all three arguments raised by appellant in his multifarious
third issue, we overrule his third issue on appeal.
CUMULATIVE ERROR
In his fourth issue on appeal, appellant contends that “[t]he number of errors,
clear from the record as a whole, was harmful to the appellant in their cumulative
effect.” Because we have found no error, however, there can be no cumulative
error. Chamberlain v. State, 998 S.W.2d 230, 238 (Tex. Crim. App. 1999), (“[W]e
are aware of no authority holding that non-errors may in their cumulative effect
cause error.”).
Accordingly, we overrule appellant’s fourth issue on appeal.
REFORMATION OF THE JUDGMENT
In a cross-issue on appeal, the State asks this Court to reform the judgment
to show that appellant pleaded “true” to an enhancement alleging a prior
conviction. At the beginning of the punishment hearing, the following exchange
took place:
[THE STATE]: The State of Texas versus David Richard Wilson. The State further presents: In the name and by authority of the State of Texas, before the commission of the offense alleged above, on March 31st of 2005, in Cause No. 0976146, in the 230th District Court of Harris County, Texas that the defendant was convicted of the felony offense of sexual assault of a child. Against the peace and dignity of the State. Signed Foreman of the Grand Jury.
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[THE COURT]: How do you plead, Mr. Wilson?

[APPELLANT]: Guilty

[THE COURT]: True or not true?

[APPELLANT]: True.

[THE COURT]: All right. You may be seated. The Court takes judicial notice of the clerk’s file and the evidence in the guilt or innocence phase. You may proceed.

The trial court then admitted State’s Exhibits 20 and 21, which were
certified copies of Judgments and Sentences, including the prior conviction alleged
in the indictment.
The court’s written judgment, however, contains “N/A” in the spaces for
“Plea to 1st Enhancement Paragraph,” and “Findings on 1st Enhancement
Paragraph.” The State contends, correctly, that the trial court’s judgment does not
accurately reflect the events that occurred in the trial court. As the State notes,
“appellant pled true to the enhancement paragraph, and the jury found that
paragraph true.” See Donaldson v. State, 476 S.W.3d 433, 439 (Tex. Crim. App.
2015) (recognizing appellant’s plea of “true” to an enhancement allegation is
sufficient to satisfy State’s burden of proof for enhancement, and “in the absence
of any other evidence that the [factfinder] rejected the State’s proof on the
enhancement or that enhancement would be improper,” would also support implied
finding of “true” by factfinder). The jury’s verdict specified that it “further find[s]
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the allegations in the Enhancement Paragraph are true and assess[es] his
punishment at confinement in the institutional division of the Texas Department of
Criminal Justice for life.”
We have the authority to “correct and reform a judgment of the court below
to make the record speak the truth when [we have] the necessary data and
information to do so.” Asbury v. State, 813 S.W.2d 526, 529 (Tex. App.––Dallas
1991, pet. ref’d); TEX. R. APP. P. 43.2(b) (“The court of appeals may modify the
trial court’s judgment and affirm it as modified.”). “The authority of an appellate
court to reform incorrect judgments is not dependent upon the request of any party,
nor does it turn on the question of whether a party has or has not objected in the
trial court.” Asbury, 813 S.W.2d at 529.
Accordingly, we grant the State’s request that we reform the judgment to
reflect that appellant pleaded “true” to the enhancement and that the jury found it
“true.”

Outcome: