Opinion
No. 04-19-00888-CR
12-02-2020
Johnny HERNANDEZ, Appellant v. The STATE of Texas, Appellee
MEMORANDUM OPINION
From the 187th Judicial District Court, Bexar County, Texas
Trial Court No. 2019CR3297
Honorable Stephanie R. Boyd, Judge Presiding Opinion by: Irene Rios, Justice Sitting: Rebeca C. Martinez, Justice Irene Rios, Justice Beth Watkins, Justice AFFIRMED
Appellant Johnny Hernandez appeals his conviction for indecency with a child by contact. We affirm the trial court's judgment.
BACKGROUND
In February of 2018, Hernandez's then-ten-year-old daughter, A.H., told her mother that Hernandez touched her "on [her] private part" during an overnight visit. On March 26, 2019, a Bexar County grand jury charged Hernandez with one count of indecency with a child under 17 by contact. After hearing the evidence, including testimony from A.H., a jury convicted Hernandez as charged in the indictment. On December 10, 2019, the trial court sentenced Hernandez to eight years' imprisonment. Hernandez now appeals his conviction.
ANALYSIS
Hernandez challenges the sufficiency of the evidence supporting his conviction. He also argues his trial attorneys provided ineffective assistance of counsel.
Sufficiency of the Evidence
Standard of Review
In reviewing a complaint that the evidence presented at trial is legally insufficient to support a jury's guilty verdict, we must determine whether any rational trier of fact could have found beyond a reasonable doubt the essential elements of the charged offense. See Adames v. State, 353 S.W.3d 854, 860 (Tex. Crim. App. 2011) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). We view the evidence in the light most favorable to the jury's guilty verdict and resolve all reasonable inferences from the evidence in its favor. Tate v. State, 500 S.W.3d 410, 413 (Tex. Crim. App. 2016).
The jury has the sole responsibility "to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (quoting Jackson, 443 U.S. at 318-19). "Because the jury is the sole judge of witness credibility and determines the weight to be given to testimony, we must defer to [] its determinations." Hines v. State, 383 S.W.3d 615, 623 (Tex. App.—San Antonio 2012, pet. ref'd). "If any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, we must affirm the trial court's judgment." Hernandez v. State, 198 S.W.3d 257, 260 (Tex. App.—San Antonio 2006, pet. ref'd).
Applicable Law
A person commits indecency with a child under 17 years of age if he, inter alia, "engages in sexual contact with the child or causes the child to engage in sexual contact[.]" TEX. PENAL CODE ANN. § 21.11(a)(1). The Texas Penal Code defines sexual contact with a child as, inter alia, "any touching by a person, including touching through clothing, of the anus, breast, or any part of the genitals of a child" if that touching is "committed with the intent to arouse or gratify the sexual desire of any person." Id. § 21.11(c)(1). Here, the indictment alleged that Hernandez "intentionally and knowingly engage[d] in sexual contact with [A.H.]" by touching her genitals.
Application
Hernandez does not identify any specific element of the offense that he contends is unsupported by the evidence. Instead, he challenges the credibility of the testimony offered by A.H. and her mother and claims A.H.'s medical records do not support a finding that A.H. was molested. He also notes that he "ha[s] no prior felony convictions" and that "[h]is mother and brother testified as to his good law-abiding character." As noted above, however, the jury is the sole judge of the credibility of the witnesses and the weight to be given to the evidence, and we must defer to its determinations on those issues. See Hines, 383 S.W.3d at 623.
A.H. testified that Hernandez put his hand in her shorts "on [her] private part" while they were lying in bed together. She specifically identified her "private part" as "[t]he part I go pee with." See Clark v. State, 558 S.W.2d 887, 889 (Tex. Crim. App. 1977) ("Where the child has sufficiently communicated to the trier of fact that the touching occurred to a part of the body within the definition of [the applicable statute], the evidence will be sufficient to support a conviction regardless of the unsophisticated language that the child uses."). She stated that when she tried to remove Hernandez's hand, he forced it "under [her] clothes on [her] skin" and "started to rub [her] private part." A.H. also testified that Hernandez "hump[ed]" her and that she heard him groaning during the act. Based on this testimony, a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. TEX. PEN. CODE § 21.11; Hernandez, 198 S.W.3d at 260. We therefore overrule Hernandez's first issue.
Ineffective Assistance of Counsel
Standard of Review and Applicable Law
"To prevail on a claim of ineffective assistance of counsel, the [appellant] must show that counsel's performance was deficient and that the deficient performance prejudiced the defense." Prine v. State, 537 S.W.3d 113, 116 (Tex. Crim. App. 2017) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). To make a showing of deficient performance, the appellant must demonstrate that his attorney's conduct fell below an objective standard of reasonableness to the extent that it "undermined the proper functioning of the adversarial process." Id. at 116-17. In reviewing such a claim, we must apply highly deferential scrutiny to trial counsel's performance. Mata v. State, 226 S.W.3d 425, 428 (Tex. Crim. App. 2007). The appellant bears the burden to overcome a strong presumption that his attorney's conduct was "within the wide range of reasonable professional assistance." Prine, 537 S.W.3d at 117 (internal quotation marks omitted).
To meet this burden, the appellant must show that the record "affirmatively demonstrate[s] trial counsel's alleged ineffectiveness." Mata, 226 S.W.3d at 430. The Texas Court of Criminal Appeals has noted that the record in a direct appeal is often insufficient to present an ineffective assistance claim, either because "[t]he very ineffectiveness claimed . . . prevent[ed] the record from containing the information necessary to substantiate such a claim" or because the trial court record "does not reflect counsel's reasons for doing or failing to do actions of which the defendant complains." Ex parte Torres, 943 S.W.2d 469, 475 (Tex. Crim. App. 1997). Additionally, trial counsel "should ordinarily be afforded an opportunity to explain his actions before being denounced as ineffective." Menefield v. State, 363 S.W.3d 591, 593 (Tex. Crim. App. 2012) (internal quotation marks omitted). If trial counsel is not given that opportunity, then the reviewing court "should not find deficient performance unless the challenged conduct was 'so outrageous that no competent attorney would have engaged in it.'" Id. (quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001)). We may not find trial counsel's performance deficient "if any reasonably sound strategic motivation can be imagined." Lopez v. State, 343 S.W.3d 137, 142-43 (Tex. Crim. App. 2011).
Application
Hernandez contends his trial attorneys' performance was deficient because they did not: (1) challenge Juror Number 14, who self-identified as a volunteer with Child Advocates of San Antonio during voir dire and then subsequently served on the jury; (2) object to purported "bolstering" testimony by a detective who investigated A.H.'s outcry; or (3) object to a portion of the State's closing argument. Hernandez did not file a motion for new trial or otherwise attempt to develop a record to support his claim of ineffective assistance. See Freeman v. State, 125 S.W.3d 505, 506-07 (Tex. Crim. App. 2003). As a result, the record is silent as to Hernandez's attorneys' reasons for failing to take the actions Hernandez argues were required here. See Lopez, 343 S.W.3d at 143-44. To prevail on his claim of ineffective assistance, Hernandez must therefore show the challenged conduct was so outrageous that no competent attorney would have engaged in it. See Menefield, 363 S.W.3d at 593.
Hernandez first complains that his attorneys should have challenged Juror Number 14 because during voir dire, she stated, "I'm a CASA. Does that make a difference to you?" She did not, however, say anything to indicate this status would bias her against Hernandez or otherwise influence her view of the evidence. See Notias v. State, 491 S.W.3d 371, 378 (Tex. App.—Houston [1st Dist.] 2016, no pet.). To the contrary, the record shows both the State and the defense questioned the entire panel, including Juror Number 14, about whether they could render a verdict based solely on the evidence presented at trial, and Juror Number 14 did not indicate an unwillingness or inability to do so. Under these circumstances, Hernandez has not shown that no competent attorney would have decided not to challenge Juror Number 14. See Menefield, 363 S.W.3d at 593; Notias, 491 S.W.3d at 378.
Hernandez next complains that his attorneys should have objected to the testimony of San Antonio Police Department Detective David Bierman. He contends Detective Bierman improperly bolstered his own testimony by stating he only files about a quarter of the child sex assault cases he investigates with the district attorney's office for prosecution. An appellant who claims ineffective assistance based on a failure to object "must demonstrate that if trial counsel had objected, the trial court would have committed error by overruling the objection." Gauna v. State, 534 S.W.3d 7, 12 (Tex. App.—San Antonio 2017, no pet.). Hernandez has not presented any argument about whether the trial court would have erred by overruling an objection to Detective Bierman's purported bolstering. See id. Moreover, as the State notes, our sister court recently explained that "[w]hether 'bolstering' remains a valid objection is in doubt.'" Prestiano v. State, 581 S.W.3d 935, 945 (Tex. App.—Houston [1st Dist.] 2019, pet. ref'd) (citing Rivas v. State, 275 S.W.3d 880, 886-87 (Tex. Crim. App. 2009)). For these reasons, Hernandez has not shown his trial counsel rendered ineffective assistance by failing to object to Detective Bierman's testimony. Gauna, 534 S.W.3d at 12.
Finally, Hernandez argues his attorneys should have objected to the prosecutor's statement during closing argument that Hernandez "molested his daughter's vagina." He contends that because there was no evidence of penetration in this case, the State's phrasing was "inflammatory" and "place[d] matters before the jury that are outside the record and prejudicial to the accused." As the State notes, however, Hernandez appears to have conflated the terms "molestation" and "penetration." Cf. Ex parte Nagle, 48 S.W.3d 213, 218 (Tex. App.—San Antonio 2000, no pet.) (distinguishing between penetration and molestation "by other means"). Because Hernandez has not shown the challenged statement was unsupported by the evidence, he also has not shown the trial court would have erred by overruling an objection to the State's closing argument. See Gauna, 534 S.W.3d at 12. We therefore reject Hernandez's assertion that his trial counsel rendered ineffective assistance by failing to object to the State's closing argument. See id.
We overrule Hernandez's second issue.
CONCLUSION
We affirm the trial court's judgment of conviction.
Irene Rios, Justice Do Not Publish