Robert Milligan v. State

Citation: Not availableDocket: 03-04-00531-CR

Court: Court of Appeals of Texas; February 15, 2006; Texas; State Appellate Court

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Robert Milligan was convicted by a jury of five counts of aggravated sexual assault and one count of burglary, receiving life imprisonment for each count. He appealed, arguing that victim-impact testimony was improperly admitted, his legal counsel was ineffective, and that the witness rule was violated during his juvenile certification hearing. The court affirmed the conviction, stating that the victim-impact testimony in question, concerning a resident of the apartment who was present during the crime, was relevant and did not constitute an extraneous offense. The brief nature of the testimony and lack of further references indicated any potential error did not affect Milligan's substantial rights. Regarding claims of ineffective assistance of counsel, the court noted that Milligan must demonstrate significant errors that prejudiced his defense, emphasizing a presumption of adequate legal representation. Ultimately, the court found no reversible errors in the trial proceedings.

To rebut the presumption of effective legal counsel, allegations of ineffectiveness must be substantiated by the record. In this case, the appellant contends that his attorney failed to preserve errors during jury selection by challenging two jurors who initially hesitated to consider the full punishment range. Although these challenges were overruled, the jurors later indicated they could base their decisions on the evidence. The appellant did not argue the overruling was erroneous, leading to the conclusion that the attorney's actions did not constitute ineffectiveness.

The appellant also claims ineffectiveness regarding the failure to object to hearsay from police officers about the victims' statements, which counsel may have deemed excited utterances and thus permissible. Additionally, the appellant argues that a leading question was posed during a witness's testimony, but even if improper, the failure to object did not harm the defense.

The appellant further alleges that counsel should have requested a mistrial after a police officer's comment about the crime haunting him. However, since the officer did not elaborate on emotional impact, the objection raised by counsel did not provide grounds for a mistrial. 

Finally, the appellant criticizes the trial counsel's closing argument as inadequate, interpreting it as a concession of guilt. The argument was brief, and there was no motion for a new trial to clarify counsel's reasoning. The State speculates that given the overwhelming evidence against the appellant, counsel may have opted for a strategy that preserved credibility for a future sentencing argument rather than pursuing an acquittal.

An acquittal was deemed unlikely based on the evidence, which led to a plausible trial strategy focusing on the punishment phase. During this phase, defense witnesses testified to the appellant's good conduct and character since 1997, while the appellant expressed remorse and counsel argued for his potential reform. The court found no incompetence in counsel's brief argument during the guilt stage and determined that the appellant failed to demonstrate that his trial counsel's performance was constitutionally deficient.

In the certification hearing, the appellant raised issues regarding witness exclusion and the emotional testimony of victims. The court did not find any violation of the witness exclusion rule, as the record did not confirm whether a witness was allowed to stay in the courtroom, and there was no evidence that this affected the trial. Additionally, the emotional impact testimony of a male victim, who described his post-traumatic stress syndrome, was deemed admissible with no supporting argument from the appellant against its inclusion.

The appellant also challenged the admission of hearsay and alleged violations of his Sixth Amendment rights during the juvenile certification hearing. However, it was established that neither the Sixth Amendment nor the hearsay rule applies in such hearings, and even if they did, no error was found. Regarding the testimony of a nurse, it was confirmed that her observations were based on personal examinations of the victims. Lastly, while the investigating officer's testimony included statements from victims, the court ruled that the excited utterance exception was properly applied despite the appellant's objections concerning the emotional state of the first victim. All points of error raised by the appellant were overruled.

The court affirmed the lower court's decision, concluding it did not abuse its discretion in determining that both victims were under the stress of excitement from the crime. Appellant's fourth point of error was overruled. Regarding points five and six, the police officer testified about an anonymous tip received in April 2001, which implicated another individual, Robert Milligan, as being involved in the crime. Despite appellant's hearsay objections, the court clarified that the testimony was not being accepted for the truth of the statements made in the call, but merely as an account of what the caller reported. This distinction was reiterated in the context of appellant's confrontation objection. The court ruled that the testimony complied with Texas Rules of Evidence 801(d), leading to the overruling of points five and six. The judgment of conviction was thus affirmed.