No. 4-05-00212-CR
Delivered and Filed: March 8, 2006. DO NOT PUBLISH.
Appeal from the 81st Judicial District Court, Atascosa County, Texas, Trial Court No. 03-11-00275-Cra, Honorable Donna Rayes, Judge Presiding. Affirmed.
Sitting: Alma L. LÓPEZ, Chief Justice, Sandee Bryan MARION, Justice Rebecca SIMMONS, Justice.
Opinion by: SANDEE BRYAN MARION, Justice.
A jury found defendant, Isidoro Gonzales Perez, guilty of indecency with a child and assessed punishment at twelve years' confinement. In three issues on appeal, defendant challenges the legal and factual sufficiency of the evidence and he asserts he received ineffective assistance of counsel. We affirm.
SUFFICIENCY OF THE EVIDENCE
Defendant asserts the evidence is legally and factually insufficient to support a finding that he touched the complainant with the intent to arouse or gratify his sexual desire. Defendant contends that "[n]owhere [in the record] does the State so much as address this issue." We review the sufficiency of the evidence under the appropriate standards of review. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979) (legal sufficiency); Dewberry v. State, 4 S.W.3d 735, 740 (Tex.Crim.App. 1999) (same); Zuniga v. State, 144 S.W.3d 477, 481-85 (Tex.Crim.App. 2004) (factual sufficiency); Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996) (same). The standard of review is the same in both direct and circumstantial evidence cases. Kutzner v. State, 994 S.W.2d 180, 184 (Tex.Crim.App. 1999). Although defendant did not testify, and complainant said he never said anything to her during the touching, the intent to arouse or gratify the sexual desire of a person can be inferred from conduct, remarks, or all the surrounding circumstances. See McKenzie v. State, 617 S.W.2d 211, 216 (Tex.Crim.App. [Panel Op.] 1981). The complainant, who was approximately ten years old at trial, testified that her "middle part" and her chest were the parts of her body that no one other than herself should touch. She said defendant, her grandfather, had touched her in her "middle part" every time she spent the night at his house. She said her grandmother would sleep on the floor of the bedroom, and she would sleep in the bed with her grandfather. At night, the complainant wore underwear and pajamas. She said defendant would touch her on top of her underwear and underneath her underwear; defendant did not touch any other part of her body. We conclude the jury was entitled to infer from the evidence that defendant touched complainant with the requisite intent, and the evidence is legally and factually sufficient to support the jury's verdict. EFFECTIVE ASSISTANCE OF COUNSEL
Defendant contends trial counsel was ineffective because counsel allowed inadmissible hearsay evidence to be placed before the jury because counsel failed to object to the State's outcry witnesses. Defendant asserts that, while complainant's stepmother, Gertrude Trinidad, was the "proper" outcry witness, the testimony of Annette Santos was inadmissible because Santos's testimony did not describe an incident different from that described by Trinidad. We review defendant's claim of ineffective assistance of counsel under the established standard of review. See Strickland v. Washington, 466 U.S. 668, 690, 104 S. Ct. 2052, 80 L. Ed.2d 674 (1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App. 1999). There is a strong presumption that trial counsel's conduct fell within the wide range of reasonable professional assistance. Id. To defeat the presumption of reasonable professional assistance, any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Id. Santos is a sexual assault nurse examiner at the Alamo Children's Advocacy Center in San Antonio. Santos described, in general terms, how she conducts an interview with and examination of a child, and she described, in specific terms, the interview and examination she conducted with the complainant. A portion of Santos's testimony consisted of reading the complainant's statements to the jury. Santos's testimony is within the scope of an exception to the hearsay rule for "[s]tatements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment." Tex. R. Evid. 803(4); see also Gregory v. State, 56 S.W.3d 164, 183 (Tex.App.-Houston [14th Dist.] 2001, pet. dism'd) (holding that "Texas courts have allowed non-physicians to testify under the medical diagnosis and treatment exception to hearsay."). Therefore, defendant has not overcome the presumption that trial counsel's not objecting to Santos's testimony was sound strategy. CONCLUSION
We overrule defendant's issues on appeal, and affirm the trial court's judgment.