Craig Stephen Gerhardt v. State

Citation: Not availableDocket: 08-10-00007-CR

Court: Court of Appeals of Texas; September 14, 2011; Texas; State Appellate Court

Original Court Document: View Document

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Appellant Craig Stephen Gerhardt, Sr. was convicted of indecency with a child by sexual contact and sentenced to six years of confinement. He appealed the conviction, claiming ineffective assistance of counsel under the Sixth Amendment and arguing that the evidence was factually insufficient. The incident occurred on November 11, 2007, when Appellant’s granddaughter, J.G., was left in his care while her mother, Sarah, went to work. Appellant's son, C.J., overheard Appellant making inappropriate comments to J.G. and later reported this to his mother, leading to a police investigation. Deputy Jason Dujardin and Detective Don Gay were involved in gathering information and arranging a forensic interview for J.G., which resulted in charges against Appellant. During the trial, Appellant's motion for a directed verdict was denied. In his appeal, he specifically contends that his trial counsel failed to object to hearsay and bolstering evidence, referencing the two-step ineffective assistance analysis established in Strickland v. Washington.

Appellate review of defense counsel's performance is conducted with a strong presumption of reasonableness, as established in Bone v. State. The Appellant contends that the testimony of Ms. Stanley and the videotaped statement of J.G. were inadmissible hearsay and improperly bolstered J.G.’s credibility, arguing that his trial counsel's failure to object constituted a deficiency in performance that prejudiced his trial outcome. To succeed on an ineffective assistance claim, the Appellant must demonstrate both that counsel's performance was deficient and that this deficiency prejudiced the defense, as outlined in Strickland v. Washington.

The burden is on the Appellant to show that counsel did not function as guaranteed by the Sixth Amendment, with allegations needing to be substantiated by an affirmative record. When the record does not clarify counsel's tactical decisions, the presumption of reasonableness typically remains intact. In this case, the record did not provide insight into the motivations behind trial counsel's actions, and the Appellant conceded that he had previously requested removal of his counsel without a formal hearing. Notably, the Appellant indicated no issues with his counsel's representation during trial, which complicates claims of ineffective assistance. Additionally, since the Appellant did not raise allegations of ineffective assistance in his motion for a new trial, there was no opportunity for trial counsel to explain his actions, further undermining the claim that counsel’s performance was deficient. The absence of a clear record regarding counsel's thought processes reinforces the presumption of effective representation.

Counsel's actions are presumed to be reasonably effective unless shown to be constitutionally deficient; a record is necessary to challenge this presumption. The appellant did not meet the burden of the first prong of the Strickland test regarding ineffective assistance of counsel, leading to the overruling of Issue One. In Issue Two, the appellant contests the factual sufficiency of evidence for his conviction, but the Texas Court of Criminal Appeals has established that only the Jackson v. Virginia legal sufficiency standard applies. Thus, Issue Two is interpreted as a challenge to legal sufficiency, which assesses whether the jury could rationally find guilt beyond a reasonable doubt, deferring to the jury's judgment on evidence credibility. The appellant claims that the State's evidence, tainted by inadmissible hearsay, is insufficient to support the guilty verdict. However, a legal sufficiency review incorporates all evidence—admissible and inadmissible. The offense of indecency with a child involves engaging in sexual contact with a child under seventeen, with intent to arouse or gratify sexual desire, which can be inferred from the defendant’s actions and context. In this case, a witness named C.J. provided a statement describing events that occurred on November 30, 2007, where he observed the appellant in a compromising situation with another individual.

C.J. testified at trial about an incident involving J.G., who, when questioned by sexual assault nurse examiner Karen Trevino, stated that her grandfather had touched her "pee pee" and indicated this by touching her vagina over her clothes. J.G. claimed the touching occurred once in the grandfather's bedroom and that he used his fingers, but nothing emerged from his private part. Although Trevino noted generalized erythema, she concluded that digital penetration likely occurred based on J.G.'s responses during the examination. 

Assistant district attorney Cindy Pulcher later testified about her interactions with J.G., including a pretrial demonstration where J.G. indicated that the touching was "inside." Forensic interviewer Pennie Stanley conducted a video-recorded interview with J.G., who exhibited normal communication for her age and demonstrated how she was touched, referring to her vagina as "pee pee." J.G. disclosed to Stanley that Appellant touched her underneath her underwear and described him asking her to pull down her pants.

J.G.'s mother, Sarah Boyd, learned of the incident from Susan Gerhardt and subsequently questioned J.G., who confirmed the touching with a quiet "yes." J.G. indicated where Appellant touched her using a doll and described his private area as growing larger. In court, J.G. reiterated that Appellant touched her on the bed and asked her to touch him, which she declined. The jury found sufficient evidence to support Appellant’s conviction beyond a reasonable doubt. The trial court's judgment was affirmed, with Chief Justice David Wellington Chew presiding over the decision.