Idehen v. State

Full title: IKE IDEHEN, Appellant, v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fourteenth District, Houston

Date published: May 18, 2006

No. 14-05-00901-CR (Tex. App. May. 18, 2006)

Opinion

No. 14-05-00901-CR

Memorandum Opinion filed May 18, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).

On Appeal from the 176th District Court, Harris County, Texas, Trial Court Cause No. 1000880. Affirmed.

Panel consists of Chief Justice HEDGES and Justices YATES and GUZMAN.

MEMORANDUM OPINION

LESLIE BROCK YATES, Justice.

Appellant was convicted of aggravated sexual assault of a child and sentenced to fifteen years' imprisonment. In two issues, appellant complains that he received ineffective assistance of counsel and that the evidence is factually insufficient to support his conviction. We affirm.

Factual and Procedural Background

Appellant lived with his minor step-daughter N.W. and his wife Simone, who is N.W.'s mother, from about 1993 until 1998, when he and Simone divorced. In 2004, when N.W. was twenty years old, she wrote Simone a letter stating that appellant had molested her when they were living together. Simone's mother called the police, and the State charged appellant with a single count of sexually assaulting N.W. During the guilt-innocence phase of trial, N.W. testified that she and appellant were home alone in 1996, shortly before she began the sixth grade. As she walked out of the kitchen, appellant grabbed her and began touching her chest and legs. She asked him to stop, and he told her to go to his and Simone's bedroom. When she failed to comply, he grabbed her wrist and pulled her into the bedroom, where he removed her clothes and pushed her onto the bed. Appellant then removed his clothes and climbed on top of N.W., pushed her legs apart, put on a condom, and inserted his penis in her vagina. According to N.W., she told appellant it hurt and asked him to stop, but he did not. After he finished, he told her "not to tell and to go take a shower." After that day, appellant sexually assaulted her in a similar manner several more times. The prosecutor asked her for an approximation of how many times it happened, and she estimated "[m]aybe several times," "[l]ike every other day," and a total of "[m]aybe six or seven times." She testified that she did not tell Simone about the sexual assaults because she was afraid Simone would not believe her, and she did not tell her friends because she "thought they would look at [her] differently." However, she promised herself she would tell Simone when she turned twenty-one, and when she was twenty, she wrote Simone a letter revealing the sexual abuse. The State also called Simone, who testified about receiving N.W.'s letter. During cross-examination, appellant's counsel requested a copy of the letter and admitted it into evidence. Dr. Judy Rambur, a clinical psychologist with the Children's Assessment Center, testified that it is not uncommon for children to delay outcries of sexual abuse because of shame, guilt, and fear. Appellant testified that he never inappropriately touched N.W. He said Simone and N.W. discovered he had remarried shortly before N.W. made her allegation, which he claimed "was just a lie to get back at [him] because they were so upset with [him] having another wife." He also said he did not recall ever being home alone with N.W. The jury convicted appellant. Later, during the punishment phase of trial, appellant confessed to and apologized for the sexual assault and asked the jury to give him probation, stating as follows:

I just want to apologize to the jury. I want you all to know that I'm really really sorry about this, this situation, and I really want to make it up to them. I'm really terribly sorry, and it saddened me that I caused this to them, you know, so I really want to make it up to them. I'm just pleading to you-all to give me a right chance to be able to plead to make it up to them. I'm ready to pay for any counseling that she need [sic]. The only way I can do [sic] is if you allow me to work. . . .

Appellant also testified he understood that as a probationer, he would be required to participate in various programs and said he was "willing to do anything they ask me to do."

Analysis

A. Ineffective Assistance of Counsel In his first issue, appellant claims he was denied effective assistance of counsel. Specifically, he claims counsel was deficient because counsel suggested appellant confess to the sexual assault during punishment. Ineffective assistance claims are governed by the two-pronged test announced in Strickland v. Washington, 466 U.S. 668 (1984). To prove ineffective assistance, appellant must show (1) that counsel's representation was deficient, falling below the standard of prevailing professional norms, and (2) a reasonable probability that the result of the proceeding would have been different but for trial counsel's deficient performance. Id. at 687-96; Salinas v. State, 163 S.W.3d 734, 740 (Tex.Crim.App. 2005). There is a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. Salinas, 163 S.W.3d at 740. To defeat this presumption, "`any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness.'" Thompson v. State, 9 S.W.3d 808, 814 (Tex.Crim.App. 1999) (quoting McFarland v. State, 928 S.W.2d 482, 500 (Tex.Crim.App. 1996)). Without specific explanations for counsel's decisions, a record on direct appeal will rarely contain sufficient information to evaluate an ineffective assistance claim. See Bone v. State, 77 S.W.3d 828, 830, 833 (Tex.Crim.App. 2002); Thompson, 9 S.W.3d at 813-14. Further, without such explanation, we do not find deficient performance unless the challenged conduct was "`so outrageous that no competent attorney would have engaged in it.'" See Goodspeed v. State, No. PD-1882-03, ___ S.W.3d ___, 2005 WL 766996, at *2 (Tex.Crim.App. Apr. 6, 2005) (quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex.Crim.App. 2001)). An affidavit from trial counsel becomes almost vital to the success of a claim for ineffective assistance of counsel if there is no hearing or if counsel does not appear at the hearing. Stults v. State, 23 S.W.3d 198, 208-09 (Tex.App.-Houston [14th Dist.] 2000, pet. ref'd). Appellant claims it was "obvious" that he should not have confessed during the punishment phase and that counsel's suggestion that he should do so constituted deficient performance. However, appellant's argument fails for two reasons. First, appellant filed no affidavits or a motion for new trial, and nothing in the record affirmatively demonstrates that he was following counsel's advice when he confessed during punishment. See Salinas, 163 S.W.3d at 740-41 (finding assertions in brief that were unsupported by the record insufficient to prove ineffective assistance); see also Goodspeed, 2005 WL 766996, at *2 (noting that "the record must affirmatively demonstrate the meritorious nature of the claim" (quotation marks omitted)). Second, even assuming counsel advised appellant to confess during punishment, appellant fails to show that the suggestion was not based on reasonable trial strategy, such as seeking to appear honest or remorseful with the jury. See Flemming v. State, 949 S.W.2d 876, 881 (Tex.App.-Houston [14th Dist.] 1997, no pet.) (declining to find ineffective assistance when counsel failed to suggest during closing that the defendant was not guilty because it was "plausible" that counsel "concluded that the best strategy might be to appear open and honest to the jury in hopes of mitigating punishment"). Here, the jury had already found beyond a reasonable doubt that appellant sexually assaulted N.W.; thus, a suggestion that appellant confess — conceivably to mitigate punishment — is not "so outrageous that no competent attorney would have engaged in it." Goodspeed, 2005 WL 766996, at *2. Because we find appellant has failed to satisfy the first Strickland prong, we overrule his first issue. B. Factual Sufficiency of the Evidence In his second issue, appellant claims the evidence is factually insufficient to support his conviction. In conducting a factual-sufficiency review of the jury's determination, we do not view the evidence "in the light most favorable to the prosecution." Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App. 1997). Instead, we view the evidence in a neutral light and inquire whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004). We may find the verdict factually insufficient in two ways. First, when considered by itself, the evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt. Id. Second, after weighing the evidence supporting the verdict, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met. Id. We must discuss the evidence appellant claims is the most important in allegedly undermining the jury's verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App. 2003). However, we must employ appropriate deference so that we do not substitute our judgment for that of the fact-finder. Zuniga, 144 S.W.3d at 482. Our evaluation should not intrude upon the fact-finder's role as the sole judge of the weight and credibility given to any witness's testimony. Cain, 958 S.W.2d at 407. We find the evidence is factually sufficient to support appellant's conviction. N.W. described in detail how appellant sexually assaulted her, and her testimony alone was sufficient to support appellant's conviction. See Jensen v. State, 66 S.W.3d 528, 534 (Tex.App.-Houston [14th Dist.] 2002, pet. ref'd) ("The testimony of a victim[,] standing alone, even when the victim is a child, is sufficient to support a conviction for sexual assault." (alteration in original) (citation omitted)). Further, Dr. Rambur explained why child sexual assault victims sometimes delay making outcries, and N.W.'s testimony and her letter to Simone, which appellant admitted into evidence, explained why she waited to disclose the sexual abuse.¹ Appellant points out that there is no medical evidence of sexual assault. However, the State was not required to produce such evidence. See Mason v. State, 116 S.W.3d 248, 255 (Tex.App.-Houston [14th Dist.] 2003, pet. ref'd) (noting that Texas law does not require medical evidence to prove sexual assault of a child). He further argues that N.W.'s testimony was inconsistent and not credible, and thus the jury should not have believed it. He points to N.W.'s cross-examination testimony, in which she testified as follows:

Q. And you also said that it happened every other day; isn't that right?

A. Yes, sir.

Q. But it was only six or seven times; is that right?

A. Yes, sir.

(emphasis added). Appellant claims that, because N.W. said she lived with appellant for about five years, the sexual abuse "would have consisted of more than every other day for approximately two weeks." However, N.W. never claimed he sexually assaulted her the entire time they lived together. Appellant also points out that N.W. wrote in her letter to Simone, "I lost my virginity when I was 18[.] I only did it once," and argues this conflicts with her claim that he sexually assaulted her before then. Considered in context, however, the jury reasonably could have believed that N.W. was referring the loss of her "virginity" as consensual sex. Moreover, the jury is the sole judge of the weight and credibility to be given to witnesses' testimony, and some inaccuracies in a witness's description do not automatically render the evidence insufficient. See Vazquez v. State, 67 S.W.3d 229, 236 (Tex.Crim.App. 2002); Escovedo v. State, 902 S.W.2d 109, 115 (Tex.App.-Houston [1st Dist.] 1995, pet. ref'd). Thus, we conclude a rational jury could have found N.W.'s testimony credible. Having viewed the evidence in a neutral light, we conclude it is not too weak, nor the contrary evidence too strong, to support a finding of guilt beyond a reasonable doubt. Accordingly, we overrule appellant's second issue. We affirm the trial court's judgment.