No. 13-05-522-CR
Memorandum Opinion Delivered and Filed August 17, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 206th District Court of Hidalgo County, Texas.
Before Justices HINOJOSA, RODRIGUEZ, and GARZA.
Memorandum Opinion by Justice RODRIGUEZ.
Appellant, Daniel Garza Rodriguez, was charged with aggravated sexual assault of a child and indecency with a child, both felony offenses. See TEX. PEN. CODE ANN. §§ 21.11, 22.021 (Vernon 2003). A jury found appellant guilty of the offense of indecency with a child but not guilty of the offense of aggravated sexual assault. Punishment was assessed at confinement for eight years in the Texas Department of Criminal Justice-Institutional Division. By eight issues, appellant generally complains of the following: (1) charge error; (2) ineffective assistance of counsel; and (3) factually insufficient evidence to convict him. We affirm.
I. Background
In May 2004, appellant's girlfriend spoke with Investigator José Elizondo about allegations of possible sexual abuse of her four-year-old daughter, S.C., by appellant based on events that had occurred seven months prior. After Investigator Elizondo took the mother's statement, the victim was interviewed by Rosie Mendoza, a child forensic interviewer. During the interview, the victim indicated that her "daddy," appellant, had touched her "in the middle" with his finger. Investigator Elizondo watched the interview in another room via closed-circuit television. Shortly afterward, Lorenza Guerrero, a sexual assault nurse examiner employed by McAllen Medical Center, examined and interviewed the victim. Guerrero found no physical evidence of abuse but did not expect to, since the incident in question occurred months before. In addition, based on an investigation into the allegations, Maria Guillen, a case worker for the Texas Department of Family and Protective Services, found that there was reason to believe appellant had sexually abused the victim. Appellant was called to the police station and arrested there. Following a jury trial, appellant was convicted of indecency with a child and acquitted of aggravated sexual assault. This appeal followed. II. Charge Error
By his first and seventh issues, appellant complains of jury charge error in the guilt/innocence phase of trial and in the punishment phase of trial. A. Standard of Review
When we review any alleged charge error, we first determine whether error actually exists in the charge. See Ovalle v. State, 13 S.W.3d 774, 786 (Tex.Crim.App. 2000) (per curiam); Mann v. State, 964 S.W.2d 639, 641 (Tex.Crim.App. 1998); Castaneda v. State, 28 S.W.3d 685, 694 (Tex.App.BCorpus Christi 2000, no pet.). If we determine that the jury charge does contain error, we then determine whether any resulting harm requires reversal. See Ovalle, 13 S.W.3d at 786; Mann, 964 S.W.2d at 641; Castaneda, 28 S.W.3d at 694. B. Jury Unanimity
By his first issue, appellant contends that the jury charge in the guilt/innocence phase of trial contained egregious error because it deprived him of his constitutional right to a unanimous jury verdict. We disagree. Pursuant to the Texas Constitution, jury unanimity is required in all felony cases. TEX. CONST. art. V, § 13; Ngo v. State, 175 S.W.3d 738, 745 (Tex.Crim.App. 2005) (en banc). In addition, jury unanimity is required in all criminal cases by statute. Tex. Code Crim. Proc. Ann. arts. 36.29(a), 37.02 (Vernon 1981 Supp. 2006); 37.03 (Vernon 1981); 45.034-.036 (Vernon 1979 Supp. 2006); Ngo, 175 S.W.3d at 745. Requiring unanimity helps effectuate the "beyond a reasonable doubt" standard of proof. United States v. Gipson, 553 F.2d 453, 457 n. 7 (5th Cir. 1977); Ngo, 175 S.W.3d at 745 n. 23. Relying on Ngo v. State and Francis v. State, appellant appears to assert that he was deprived of his constitutional right to a unanimous verdict because the jury was allegedly charged in the disjunctive, and thereby, permitted to convict him based on any number of alleged acts. See Ngo, 175 S.W.3d at 744; see also Francis v. State, 36 S.W.3d 121, 125 (Tex.Crim.App. 2000) (op. on reh'g) (en banc). In both Ngo and Francis, the jury was charged in the disjunctive. See generally Ngo, 175 S.W.3d 738; Francis, 36 S.W.3d 121. In Ngo, the jury was allowed to convict the defendant of one count of credit card abuse if it found that the defendant committed any one of three charged criminal acts, which occurred at three different times, and in three different ways. Ngo, 175 S.W.3d at 744. The court of criminal appeals concluded that the trial court erred in failing to instruct the jury that it must be unanimous in deciding which one or more of the three disjunctively submitted offenses it found appellant committed. Id. at 749. In Francis, the jury was permitted to find appellant guilty of indecency with a child if it found that the defendant had engaged in sexual contact by touching "the breast or genitals of [the] victim." Francis, 36 S.W.3d at 122. The court of criminal appeals concluded that submission of two separate offenses in the disjunctive was error because it was conceivable that some members of the jury convicted the defendant on the breast-touching offense while other members of the jury convicted him on the genital-touching offense. Id. at 125. Here, the jury charge on the first count read as follows, in relevant part: Now if you find from the evidence beyond a reasonable doubt that on or about OCTOBER 31, 2003 . . . the Defendant, DANIEL RODRIGUEZ, did then and there intentionally or knowingly cause his mouth to contact the sexual organ of . . . the victim, a child younger than 14 years of age, then you will find the Defendant guilty of the offense of AGGRAVATED SEXUAL ASSAULT, as charged in the indictment.
In addition, the jury charge on the second count read in pertinent part as follows: Now if you find from the evidence beyond a reasonable doubt that on or about OCTOBER 31, 2003 . . . the Defendant, DANIEL RODRIGUEZ, did then and there engage in sexual contact with . . . the victim, a child younger than 17 years and not the spouse of the Defendant, by then and there touching part of the genitals of the victim . . . with intent to arouse or gratify the sexual desire of the Defendant, then you will find the Defendant guilty of the offense of Indecency With A Child as charged in the indictment.
Thus, unlike Ngo and Francis, the jury in this case was not charged in the disjunctive. See Bottenfield v. State, 77 S.W.3d 349, 359 (Tex.App.BFort Worth 2002, pet. ref'd). Instead, the jury charge contained two separate counts, each relating to a separate and distinct offense. See id. Therefore, no charge error existed on this basis. Appellant's reliance on Ngo and Francis is misplaced. See id. Moreover, the jury charge relating to each count did contain an instruction that the verdict must be unanimous. See TEX. CONST. art. V, § 13; Ngo, 175 S.W.3d at 745. Specifically, the jury charge for each count read as follows, in relevant part: When you retire to the jury room, you should first select one of your members as Presiding Juror. It is the Presiding Juror's duty to preside at your deliberations, vote with you, and when you have unanimously agreed on a verdict, to certify to your verdict by using the appropriate form attached thereto, and signing the same as Presiding Juror.
. . .
Your verdict must be unanimous, and after you have reached a unanimous verdict, the Presiding Juror will certify thereto by signing the appropriate form attached to this charge. (Emphasis added.)
Because the jury was in fact instructed that the verdict as to each count must be unanimous, see Tex. Const. art. V, § 13; Ngo, 175 S.W.3d at 745, we conclude that the jury charge did not contain error as alleged by appellant. Therefore, we need not conduct a harm analysis. See Ovalle, 13 S.W.3d at 786; Mann, 964 S.W.2d at 641; Castaneda, 28 S.W.3d at 694. Thus, we overrule appellant's first issue. C. Extraneous Offenses or Bad Acts
Through his seventh issue, appellant asserts that the trial court erred by failing to include a reasonable doubt instruction in the jury charge in the punishment phase of trial relating to extraneous offenses or bad acts. In addition, appellant asserts that the alleged error caused him egregious harm. We disagree. The Texas Code of Criminal Procedure requires a trial court, sua sponte, to instruct a jury during the punishment phase of trial that extraneous or bad act evidence may be considered only if the jury is satisfied beyond a reasonable doubt that the defendant committed said acts. See TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3(a) (Vernon Supp. 2006); see also Ellison v. State, 86 S.W.3d 226, 228 (Tex.Crim.App. 2002); Huizar v. State, 12 S.W.3d 479, 483-84 (Tex.Crim.App. 2000) (op. on reh'g). A trial court's failure to give the reasonable doubt instruction when required to do so is error. Ellison, 86 S.W.3d at 228. Because the trial court did not issue a reasonable doubt instruction regarding the extraneous or bad act evidence at issue during the punishment phase of the trial, we conclude that the trial court erred. See id. Therefore, we must conduct a harm analysis to determine if the error is reversible error. See Ovalle, 13 S.W.3d at 786; Mann, 964 S.W.2d at 641; Castaneda, 28 S.W.3d at 694. However, because appellant failed to object to the charge error, we may only reverse the judgment of the trial court if appellant suffered egregious harm. See Ovalle, 13 S.W.3d at 786; Escobar v. State, 28 S.W.3d 767, 777 (Tex.App.BCorpus Christi 2000, pet. ref'd). Pursuant to Almanza v. State, we examine the degree of harm in light of the entire jury charge, the state of the evidence, the arguments of counsel, and all other relevant information revealed by the trial record as a whole. See Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1984). During the punishment phase of trial, the State generally re-offered all the evidence that it had offered during the guilt/innocence phase, which included the extraneous or bad act evidence at issue; the State did not specifically identify each piece of evidence that it was re-offering. In addition, although the State introduced witness testimony during the punishment phase, the testimony did not relate to the extraneous or bad act evidence at issue. Furthermore, the State did not refer to the extraneous or bad act evidence during its argument. Finally, the charge instructed the jury that appellant could be sentenced to imprisonment for a term of not more than twenty years and not less than two years, in addition to a fine up to $10,000, for the offense of indecency with a child. The jury assessed punishment at eight years' confinement out of the possible twenty years. Accordingly, we conclude that the error of the trial court did not cause appellant to suffer egregious harm. See id.; see also Ovalle, 13 S.W.3d at 786; Escobar, 28 S.W.3d at 777. Thus, we overrule appellant's seventh issue. III. Ineffective Assistance of Counsel
By his second, third, fourth, fifth, and sixth issues, appellant contends that his trial counsel provided ineffective assistance. Specifically, appellant contends his trial counsel was ineffective by (1) failing to ensure that an extraneous offense instruction was included in the jury charge, (2) failing to request that the State elect the alleged incident upon which it was relying for a unanimous verdict, (3) failing to object to testimony regarding the truthfulness of the complaint, (4) failing to object to the State's alleged extinguishment of appellant's constitutional right to be presumed innocent, and (5) allowing a juror who admitted to being biased against appellant to participate on the jury. This Court uses the two-pronged Strickland test to determine whether representation was so inadequate that it violated a defendant's Sixth Amendment right to counsel. See Strickland v. Washington, 466 U.S. 668, 684 (1984); Hernandez v. State, 726 S.W.2d 53, 57 (Tex.Crim.App. 1986) (en banc); Alfano v. State, 780 S.W.2d 494, 495 (Tex.App.BCorpus Christi 1989, no pet.). To establish ineffective assistance of counsel, appellant must show that (1) his trial attorney's representation fell below an objective standard of reasonableness, and (2) there is a reasonable probability that, but for his attorney's errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 687; Hernandez, 726 S.W.2d at 55. Whether or not this test has been met is to be judged on appeal by the totality of the representation, not by isolated acts or omissions. Rodriguez v. State, 899 S.W.2d 658, 665 (Tex.Crim.App. 1995). "In the majority of cases, the record on direct appeal is undeveloped and cannot adequately reflect the motives behind trial counsel's actions." Mallett v. State, 65 S.W.3d 59, 63 (Tex.Crim.App. 2001). Nevertheless, an allegation of ineffective assistance of counsel will only be sustained if it is firmly founded and the record affirmatively demonstrates counsel's alleged ineffectiveness. Guzman v. State, 923 S.W.2d 792, 797 (Tex.App.BCorpus Christi 1996, no pet.). When the record is silent regarding the motivation of counsel's tactical or strategic decisions, there is a strong presumption that counsel acted reasonably. Mallett, 65 S.W.3d at 62-63; see Ortiz v. State, 93 S.W.3d 79, 88-89 (Tex.Crim.App. 2002) (en banc). We will not conclude that the conduct was deficient unless the conduct was so outrageous that no competent attorney would have engaged in it. Garcia v. Garcia, 57 S.W.3d 436, 440 (Tex.Crim.App. 2001). Here, the record does not show trial counsel's reasoning behind the challenged conduct. See Mallett, 65 S.W.3d at 62-63; Ortiz, 93 S.W.3d at 88-89. Because appellant's assertions of ineffective assistance are not firmly founded in the record, and the record does not affirmatively demonstrate the alleged ineffectiveness, see Mallett, 65 S.W.3d at 62-63; Ortiz, 93 S.W.3d at 88-89, we cannot say that trial counsel's performance failed to constitute reasonably effective assistance by falling below an objective standard of reasonableness. See Strickland, 466 U.S. at 687; Hernandez, 726 S.W.2d at 55. Therefore, appellant has failed to satisfy the first prong of the Strickland test, and we need not consider the second prong. See Strickland, 466 U.S. at 687. We overrule appellant's second, third, fourth, fifth, and sixth issues. IV. Factual Sufficiency
By his eighth issue, appellant contends that the evidence offered by the State at trial was factually insufficient to support his conviction. We disagree. A. Standard of Review
In reviewing the factual sufficiency of the evidence, we view the evidence in a neutral light. Drichas v. State, 175 S.W.3d 795, 799 (Tex.Crim.App. 2005) (en banc) (citing Clewis v. State, 922 S.W.2d 126, 134 (Tex.Crim.App. 1996)). There are two ways in which a court may find the evidence to be factually insufficient: (1) the evidence supporting the finding, considered alone, is too weak to support the jury's finding beyond a reasonable doubt; or (2) the contravening evidence is so strong that the State could not have met its burden of proof. Id. (citing Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex.Crim.App. 2004)). We measure the factual sufficiency of the evidence in a jury trial by the elements of the offense as defined by a hypothetically correct jury charge. See Adi v. State, 94 S.W.3d 124, 131 (Tex.App.BCorpus Christi 2002, pet. ref'd) (citing Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App. 1997)). The jury is the sole judge of the facts, the credibility of the witnesses, and the weight to be given the evidence. Beckham v. State, 29 S.W.3d 148, 152 (Tex.App.BHouston [14th Dist.] 2000, pet. ref'd). Therefore, the jury may believe all or part of any witness's testimony. Margraves v. State, 34 S.W.3d 912, 919 (Tex.Crim.App. 2000) (en banc). Reconciliation of any conflicts in the evidence falls within the exclusive province of the jury. Id. In conducting this review, the Court does not engage in a second evaluation of the weight and credibility of the evidence, but only ensures that the jury reached a rational decision. Muniz v. State, 851 S.W.2d 238, 246 (Tex.Crim.App. 1993) (en banc). If there is evidence that establishes guilt beyond a reasonable doubt, and the trier of fact believes that evidence, the appellate court does not sit as a thirteenth juror in reassessing the evidence. See Moreno v. State, 755 S.W.2d 866, 867 (Tex.Crim.App. 1988) (en banc). B. Analysis
In order to prove that appellant committed the offense of indecency with a child under section 21.11(a) of the Texas Penal Code, the State had to prove that appellant engaged in sexual contact with the minor victim, with intent to arouse or gratify the sexual desire of appellant. See TEX. PEN. CODE ANN. § 21.11 (Vernon 2003). Among other things, "sexual contact" within this section means touching the genitals of a child with the aforementioned intent. Id. § 21.11(c). At trial, the victim testified that appellant had "touched [her] in the middle" with his finger one time while in her mother's room. As the State's outcry witness, the victim's mother testified that the victim had asked her the day after the offense allegedly occurred "why had her daddy touched her where he was not supposed to." The victim's mother further testified that the victim had told her that her father had touched her "where he was not supposed to and that he had pinched her and . . . that it hurt." In addition, caseworker Guillen testified that there was reason to believe that the alleged sexual abuse of the victim by appellant did occur. Nurse Guerrero testified that while she was obtaining a history from the victim's mother relating to the victim, the mother stated that she had caught appellant fondling the victim and that the victim had told her that appellant had been touching her. In addition, Guerrero testified that during the examination of the victim, the victim stated the following: "sometimes [appellant] puts his finger on the mouth and pinches [the victim] to [sic] the mouth"; "[appellant] kisses [the victim] on the mouth with his tongue"; "[appellant] touches [the victim] here," indicating the chest area; "[appellant] touches me here and . . . pinches me with his nail," indicating the anal area; "sometimes [appellant] puts his hand under my panties"; and "[appellant] sometimes touches me here with his hand and with his mouth he puts his tongue in here," indicating the genital area. Guerrero further testified that after examining the victim, she found no vaginal injury to the victim; however, she also testified that she would not have expected to find any such injury because the offense in question had occurred seven months before her examination, and all potential injuries would have healed by then. Finally, the State read into evidence the transcription of the victim's interview with Rosie Mendoza of the Child Advocacy Center. During the interview, the victim stated that appellant had "touched [her] where he wasn't supposed to," in the "middle" and that appellant had "pinched" her in the "middle." At first, the victim stated that the incident occurred in her mother's room while they were asleep; later in the interview, she stated that her mother had been cooking when the incident occurred and that her brother had seen appellant touch her. She further testified that this had occurred only one time. Although appellant asserts that there are inconsistencies between the victim's testimony at trial and the victim's statements in the recorded interview with Mendoza, it was in the jury's province to resolve any such conflicts and to determine the weight to give said evidence. See Margraves, 34 S.W.3d at 919; see also Beckham, 29 S.W.3d at 152. Therefore, based on the record evidence and viewing the evidence in a neutral light, as measured against a hypothetically correct jury charge, we conclude the evidence supporting the finding that appellant touched the minor victim with intent to arouse or gratify the sexual desire of appellant, see TEX. PEN. CODE ANN. § 21.11, is not too weak to support the jury's finding of guilt beyond a reasonable doubt and that the contravening evidence is not so strong that the State could not have met its burden of proof. See Drichas, 175 S.W.3d at 799 (citing Zuniga, 144 S.W.3d at 484-85). Thus, we conclude the evidence is factually sufficient to support the jury's finding that appellant committed the offense of indecency with a child. We overrule appellant's eighth issue. V. Conclusion
Accordingly, we affirm the judgment of the trial court.