Farhan Awan v. State

Citation: Not availableDocket: 02-16-00384-CR

Court: Court of Appeals of Texas; March 15, 2018; Texas; State Appellate Court

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Farhan Awan appeals his conviction for continuous sexual abuse of a child, specifically A.B., a girl who emigrated from Pakistan to Texas in 2003. After Awan moved into A.B.'s family's small apartment in December 2007, he began to engage in inappropriate behavior towards her, starting with seemingly innocent video games that escalated into sexual touching. A.B. described instances where Awan would wrap around her under the pretense of playing a game, ultimately leading to direct inappropriate contact with her breasts and genitalia. This abuse occurred multiple times, despite A.B.'s objections. She recounted that Awan also showed her pornographic material on his computer. Although A.B.'s mother was often present in the home, she remained unaware of the abuse due to her being out of sight during the incidents. The court affirmed the conviction, concluding that the evidence supported the jury's findings.

Appellant actively discouraged A.B. from informing her mother about the abuse, making her feel that her mother would not believe her. A.B. attempted to disclose the abuse to her mother, stating that Appellant was "watching naked people on the computer," but was reprimanded and told it was none of their business. A.B. testified that both her Stepfather and Mother witnessed incidents of abuse; Stepfather reported seeing Appellant touching A.B. beneath her shirt while watching television, but Mother dismissed his concerns as mistaken. Additionally, Mother observed Appellant humping A.B. but did not intervene until after Appellant left, at which point she instructed A.B. not to allow such behavior.

After moving to a one-bedroom apartment nearby, A.B. was encouraged by her mother to visit Appellant frequently, during which he continued to abuse her, including touching her genitals and forcing her to watch pornography. A.B. estimated that these incidents occurred about 25 times. On several occasions, Appellant conducted inappropriate searches while pretending to be a police officer and escalated the abuse by forcing A.B. to lie down and simulating sexual acts. He also attempted penetrative sex, during which A.B. experienced severe pain and screamed, prompting Appellant to apologize.

Later, after moving across the hall from A.B., Appellant reassured her that they could continue their activities unnoticed, even during a family gathering. A.B. described an instance where Appellant held her wrist, preventing her from leaving his apartment, but she eventually escaped. The abuse persisted despite the presence of Appellant's family.

A.B. reported ongoing sexual abuse by Appellant, starting with threats that A.B. would scream if he didn't stop, which he ignored. The abuse included inappropriate touching during car rides and in public places, such as Walmart. A.B. confided in her Mother and Stepsister about the abuse when she was 15, leading to a confrontation with Appellant. Despite this, no immediate police report was made; instead, Stepsister called Appellant, who expressed remorse and sought forgiveness. Appellant's mother confronted A.B.'s family, attempting to shift blame onto A.B. Appellant acknowledged his actions in a conversation with Stepfather but did not detail them. Following family inaction, A.B. struggled with her mental health and eventually disclosed the abuse to her tennis coach, who referred her to school counselor Peggy McIntire. McIntire met with A.B. and her Mother, recommending counseling, but upon follow-up, discovered no arrangements had been made. Consequently, McIntire reported the abuse to the police.

On December 23, 2014, A.B. met with Bedford Police Detective Pat Ripley, who noted her calm demeanor and intelligence during a one-hour interview, perceiving no signs of fabrication regarding allegations against the Appellant. This led to the Appellant's arrest and subsequent charges in December 2015, including one count of continuous sexual abuse of a child and two counts of engaging in sexual contact with A.B. The trial commenced in September 2016, where a potential juror, Juror Number 8, disclosed her past experiences of sexual molestation and expressed potential bias. Despite her emotional background, she indicated a willingness to follow the law. The defense counsel challenged her for cause, but the court denied the challenge, and the juror was seated. The defense counsel mistakenly did not include Juror Number 8 in his preemptory strikes. During the trial, the Appellant testified, denying the allegations and claiming any inappropriate touching was accidental. He admitted to playing a game with A.B. but limited it to a few instances. His family members testified they had not observed any concerning interactions between A.B. and the Appellant, although they acknowledged joining him and another family member in the U.S. after the alleged incidents had occurred.

Appellant was convicted of continuous sexual abuse and sentenced to 35 years’ confinement by the trial court. After the sentencing, defense counsel informed the court that he had discussed the appeal options with Appellant and his family, and Appellant requested that the counsel continue representing him. Despite being a candidate for a judicial position, defense counsel assured the court he could manage the appeal process and was permitted to remain on the case. 

On October 4, 2016, shortly after sentencing, the State provided defense counsel with a Brady notice, which included statements from the Stepfather suggesting Appellant's significant innocence. The Stepfather expressed a desire to know how to "undo" the sentence and inquire about bonding Appellant out. Following the election of trial counsel to the judicial position, new appellate counsel was appointed for Appellant.

Appellant claims ineffective assistance of counsel, arguing that Texas procedural rules hinder his constitutional rights by preventing him from meeting the 30-day deadline to file a motion for a new trial. He contends that this situation forces him to seek relief through a writ of habeas corpus, where he would not have counsel. He requests the court to abate the appeal to allow for an out-of-time motion for a new trial, asserting that failing to do so would violate his rights to counsel, a fair trial, and due process. The resolution of his claims will be addressed in reverse order, as his first point is contingent on the outcome of his second.

Appellant's counsel identified two potential claims of ineffective assistance of prior counsel after reviewing the record. In April, Appellant filed a motion to abate the current proceedings and remand the case to the trial court to pursue an out-of-time motion for new trial to address these claims. The request was denied on April 13. Under federal law, indigent defendants are entitled to appointed counsel throughout critical stages of criminal proceedings, including the first appeal. This includes the 30-day period after sentencing, during which a defendant can file a motion for new trial to preserve issues for appeal, such as ineffective assistance claims. A presumption exists that appointed counsel adequately represented the defendant during this period, suggesting that the attorney discussed the merits of a motion for new trial, which the defendant may have chosen not to pursue. This presumption can be rebutted if the defendant provides evidence of ineffective representation. For example, in a cited case, the court found the presumption rebutted because the defendant was unrepresented for a period after sentencing, leaving insufficient time for the newly appointed counsel to advise on filing a motion. If the presumption is rebutted, a harm analysis is conducted to assess whether the appellant had plausible claims that could have been raised in a motion for new trial. In one instance, the court ruled that a conclusory claim regarding trial counsel's failure to call a witness did not establish a plausible ineffective assistance claim. However, another case was remanded for a new trial motion addressing a claim of involuntary guilty plea due to erroneous advice from trial counsel.

Appellant requested an abatement to file an out-of-time motion for a new trial but failed to provide evidence to counter the presumption of effective assistance of counsel during the critical 30 days post-sentencing. The presumption holds that if a motion for new trial is not filed, it was considered and rejected by the appellant. Appellant's counsel argued that being in prison during the preparation of records was significant, but the court found no merit in this claim. The court reinforced the principle that it should not second-guess trial counsel's strategic decisions. 

Regarding constitutional arguments, Appellant contended that the deadline for filing a motion for new trial denies indigent defendants the right to effective counsel in the crucial post-sentencing period. He pointed out that if trial counsel remains on the case, they may not recognize their own ineffective assistance, and new counsel would not identify such issues until after the deadline due to the delayed preparation of records. However, Appellant acknowledged the option of seeking an abatement for an out-of-time motion but criticized the court's reluctance to grant such requests, claiming it violated his due process and fair trial rights. The court concluded that Appellant did not meet the burden to prove ineffective assistance of counsel, thereby rejecting his claim of constitutional rights violation. Appellant may still pursue his ineffective assistance claims through a habeas corpus proceeding but expressed concerns regarding the lack of counsel assistance for that process.

Ex parte Graves establishes that there is no right to counsel for a writ of habeas corpus, but trial courts must appoint counsel if the interests of justice necessitate it. Courts are required to liberally construe pro se pleadings, including habeas applications, acknowledging the challenges individuals face in articulating legal claims. Claims will not be dismissed solely due to poor wording. The Appellant's argument that a 30-day deadline for filing a motion for new trial violated his constitutional rights is rejected.

Regarding outcry testimony, the Appellant contends that the trial court improperly admitted Stepsister’s testimony on two grounds: it exceeded the State’s notice and duplicated Mother’s testimony. Under article 38.072, statements made by a child to the first adult about alleged offenses can be admitted as non-hearsay if certain conditions are met, including prior notification to the opposing party and a reliability hearing by the court. Trial courts have broad discretion regarding the admissibility of such testimony, which cannot be overturned unless a clear abuse of discretion is shown.

In September 2016, the State informed the Appellant of its intention to present Stepsister’s testimony regarding A.B.’s outcry, including a handwritten statement detailing A.B.’s allegations of sexual abuse by the Appellant over several years, including specific instances of inappropriate conduct.

A hearing was held outside the jury's presence to determine the admissibility of Stepsister’s outcry testimony under Texas Code of Criminal Procedure article 38.072. During this hearing, Stepsister recounted A.B. informing her about the abuse shortly before Stepbrother’s wedding, detailing the onset of the abuse at age 10, including instances of Appellant showing A.B. pornography, inappropriate touching, and an attempted sexual encounter. Appellant's counsel objected to the testimony as inadmissible hearsay, arguing it lacked specificity regarding the timing and nature of the abuse and exceeded the scope of the State's notice, which indicated the abuse lasted "a couple of years." The trial court overruled these objections and permitted the testimony.

On appeal, Appellant contended that Stepsister's testimony exceeded the notice's scope by specifying the abuse began during a ball game and detailing types of contact. However, he failed to preserve these arguments for review as required by Texas Rules of Appellate Procedure. The appellate review focused on whether the claim that A.B. stated the abuse began at age 10 exceeded the notice. The notice requirement aims to prevent surprise to the defendant regarding outcry hearsay testimony. Even if this claim were deemed exceeding the scope, any error in admitting the testimony would be considered harmless unless it substantially affected the jury's verdict. The court noted that prior rulings indicated surprise from outcry evidence is a key factor in assessing harmful error. Appellant did not demonstrate surprise regarding Stepsister's testimony about the age of onset, considering counsel's argument at trial acknowledged a broad timeframe for the abuse.

Appellant did not move into A.B.’s apartment until she was 10, and A.B. testified that the abuse began at that age. Previous case law indicates that erroneous admission of outcry testimony can be deemed harmless if the complainant testified to the same facts without objection. The court found no surprise in Stepsister’s testimony regarding A.B.’s outcry about Appellant's actions. Appellant contended that Stepsister’s testimony was redundant since Mother had already testified to A.B.'s statements. Under Texas law, multiple outcry witnesses can testify about different events, and A.B.’s statements must indicate specific incidents of abuse. The State argued that Mother's testimony did not constitute proper outcry testimony, but the court disagreed, noting that intent can be established through circumstantial evidence. Even if admitting Stepsister’s testimony was an error, it was deemed harmless given A.B.’s detailed accounts of abuse and corroborative testimonies from other witnesses. The court affirmed the trial court's judgment, overruling all of Appellant's points.