Opinion
No. 05-03-01107-CR.
Opinion Filed April 28, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 195th District Court, Dallas County, Texas, Trial Court Cause No. F00-70310-QN. Affirm.
Before Chief Justice THOMAS and Justices MORRIS and O'NEILL.
OPINION
Appellant Juan Francisco Martinez appeals his conviction for aggravated sexual assault of a child. In ten issues, appellant generally contends (1) the trial court erred in not declaring a mistrial when the prosecutor commented on his right to counsel, (2) the trial court erred in excluding evidence that complainant's uncle had attempted to sexually assault another child family member, (3) the trial court erroneously instructed the jury on the burden of proof, (4) the evidence is legally and factually insufficient to support his conviction, (5) the trial court erred in not declaring a mistrial when the prosecutor struck at appellant over counsel's shoulders, (6) appellant received ineffective assistance of counsel, and (7) the cumulative effect of the above errors requires reversal. For the following reasons, we affirm the trial court's judgment. The grand jury indicted appellant for sexually assaulting his son by causing the contact and penetration of his son's anus with appellant's sexual organ. Complainant was five years old at the time of the offense and eight years old at the time of trial. At trial, complainant testified that one day, when he was using the bathroom, appellant came in, lifted him off the toilet and put a comb in his "butt." Complainant testified he was also assaulted another time in a similar manner. On this occasion, complainant was assaulted with a comb or brush by appellant as well as his mother's brother, Jose, and his mother's cousin, Hugo. Complainant did not expressly testify that appellant had sexually assaulted him by penetrating complainant's anus with appellant's sexual organ. However, complainant did testify that his mother had once caught him trying to put his "dick" inside his younger brother's "butt." Complainant said he did this because his "Daddy showed [him]." Complainant's mother testified that she started noticing a change in complainant's behavior when she began working nights. At that time, complainant began having nightmares and saying bad things about his father. One day, when complainant was five years old, Mother walked in on complainant attempting to put his penis in his younger brother's bottom. Mother asked complainant what he was doing and complainant responded "My father was doing the same thing to me." Complainant specifically told Mother that appellant had put his penis in complainant's anus. Two months later, Mother took the child to a clinic to get examined. Appellant and Mother's brother, Jose, also went to the clinic. At the clinic, Mother overheard a conversation that lead her to suspect Jose was involved in the sexual abuse of complainant. Specifically, in the waiting room, Mother overheard her brother telling appellant that he did not think Mother was going to find out what was "going on," but that she had figured it out. Mother later came to understand that both her brother and her cousin Hugo had also sexually assaulted complainant. Because of the allegations, Mother's relationship with her own family, including her mother had deteriorated. Mother testified she and appellant were married at the time complainant first made his allegations and that they have since divorced. She denied that she made up these allegations after she realized appellant was going to divorce her. Monica Smith, a former police officer, testified that she interviewed complainant when she was an investigator with the child abuse unit of the police force. Complainant gave Smith a detailed account of how appellant penetrated complainant's anus with his penis. However, complainant never mentioned a comb, a brush, or that anyone else had sexually assaulted him. Appellant testified in his own defense and denied commission of the offense. Appellant also called Mother's brother Jose and cousin Hugo who testified the child's allegations regarding them were untrue. After hearing the evidence, the jury found appellant guilty of aggravated sexual assault. We will first address appellant's sixth and seventh issues challenging the legal and factual sufficiency of the evidence. When we review the legal sufficiency of the evidence, we must view the evidence in the light most favorable to the prosecution. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Turner v. State, 805 S.W.2d 423, 427 (Tex.Crim.App. 1991). The inquiry is whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Turner, 805 S.W.2d at 427. The jury, as trier of fact, is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Adelman v. State, 828 S.W.2d 418, 421 (Tex.Crim.App. 1992). As such, the jury may choose to believe or disbelieve all or any part of any witness's testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim.App. 1986); McCray v. State, 861 S.W.2d 405, 407 (Tex. App.-Dallas 1993, no pet.). A jury is also permitted to make reasonable inferences from the evidence. See Stahle v. State, 970 S.W.2d 682, 686-87 (Tex. App.-Dallas 1998, pet. ref'd). When reviewing the factual sufficiency of the evidence, we view all the evidence, but not in the light most favorable to the prosecution. See Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim. App. 1996). The question is whether, considering all of the evidence in a neutral light, a jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, No. 539-02 (Tex.Crim.App. April 21, 2004). Evidence can be factually insufficient if (1) the evidence is too weak to support the finding of guilt beyond a reasonable doubt, or (2) contrary evidence exists that is strong enough that the beyond-a-reasonable-doubt standard could not have been met. Id. In the sixth issue, appellant contends the evidence is legally insufficient to support his conviction because complainant never specifically testified that appellant put his penis inside complainant's anus as alleged in the indictment. Appellant concedes complainant's mother and Officer Monica Smith testified that complainant told them appellant penetrated complainant's anus with appellant's sexual organ. He, however, asserts this is not legally sufficient evidence of penetration. However, outcry testimony is substantive evidence and is alone legally sufficient to support a conviction for sexual assault on a child. See Rodriguez v. State, 819 S.W.2d 871, 873-74 (Tex.Crim.App. 1991). We resolve the sixth issue against appellant. In his seventh issue, appellant contends the evidence is factually insufficient to support his conviction. Appellant asserts the evidence is factually insufficient because (1) there was no medical evidence, (2) complainant's allegations were "fantastical," (3) evidence was presented that the child's uncle, Jose, was the real perpetrator, and (4) evidence suggested Mother concocted the allegations to either gain a favorable divorce settlement or to protect her brother, Jose. We have reviewed all the evidence in a neutral light. Having done so, we cannot conclude: (1) the evidence is too weak to support the finding of guilt beyond a reasonable doubt, or (2) the contrary evidence establishes the beyond-a-reasonable-doubt standard could not have rationally been met. See Zuniga, slip op. at 8. We resolve the seventh issue against appellant. In the first and second issues, appellant contends the trial court erred in not declaring a mistrial when the prosecutor commented on his right to counsel thereby violating his rights under the Sixth Amendment and article 38.38 of the code of criminal procedure. The first remark appellant complains of was made during the questioning of Officer Smith. On cross-examination, Smith conceded appellant had voluntarily gone to see her. On redirect, the prosecutor elicited testimony that she was unable to interview appellant at that time because appellant had asked for an attorney. Appellant did not object to this statement. Therefore, appellant's complaint is not preserved for review. See Tex.R.App.P. 33.1(a)(1); Cacy v. State, 901 S.W.3d 691, 698-99 (Tex. App.-El Paso 1995, pet. ref'd). Appellant also complains that the prosecutor remarked on his right to counsel when he questioned appellant. Appellant testified in his own defense that when he heard about the accusations, he often called Officer Smith, but he could not get a hold of her. When he finally reached Smith, he made an appointment and went to see her. On cross-examination, appellant insisted that he cooperated with Smith and wanted to talk to her. The prosecutor stated "but as soon as you get down there, you lawyer up and you don't talk to her; correct?" Appellant did not object. Appellant complains that the prosecutor's comment was an improper remark on his invocation of his right to counsel. Again, appellant's complaint is not preserved for review because he did not object to the prosecutor's question. Tex.R.App.P. 33.1(a)(1); Cacy, 901 S.W.2d at 698-99. Finally, appellant complains of the prosecutor's remark in closing argument asserting appellant had "lawyered up." Once again, appellant did not object and thus did not preserve his complaint for review. Tex.R.App.P. 33.1(a)(1); Cockrell v. State, 933 S.W.2d 73, 89 (Tex.Crim.App. 1996); Cacy, 901 S.W.2d at 698-99. We resolve the first and second issues against appellant. In the third issue, appellant contends the trial court erred in excluding evidence that the child's uncle, Jose, attempted to sexually assault another child family member. On cross-examination of Mother, appellant attempted to elicit testimony that Jose had tried to sexually assault their younger sister. The State objected to the evidence because it was not relevant and because it was hearsay. The trial court sustained the State's objection. In this issue, appellant asserts the trial court abused its discretion in excluding the proffered evidence. Mother's testimony that Jose tried to sexually assault their sister is based on statements her own mother had made to her. Hearsay is a statement other than one made by the declarant while testifying at trial offered in evidence to prove the truth of the matter asserted. See Tex. R. Crim. Evid. 801(d). Because the proffered statements were hearsay, the trial court did not err in excluding them. See Wheatfall v. State, 882 S.W.2d 829, 836-37 (Tex.Crim. App. 1994); Dietz v. State, 123 S.W.3d 528, 531-32 (Tex. App.-San Antonio 2003, pet. filed). We resolve the third issue against appellant. In the fourth issue, appellant contends the trial court erred in excluding evidence that complainant had been instructed on what to allege. At trial, appellant sought to introduce evidence that complainant had told appellant that complainant's grandmother told complainant what to say to police. The trial court excluded the evidence as constituting improper impeachment. In this issue, appellant complains of the exclusion of complainant's statement. Rule 38.1(h) of the rules of appellate procedure requires an appellant to include in his brief a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record. Tex.R.App.P. 38.1(h); Lagrone v. State, 942 S.W.2d 602, 614 (Tex. Crim App. 1997). In this issue, appellant has provided no substantive legal argument and has cited no authority to show the excluded evidence was admissible. Thus, he presents nothing to review. We resolve the fourth issue against appellant. In his fifth issue, appellant contends the trial court erred in instructing the jury on the meaning of reasonable doubt during voir dire. Appellant did not object to the trial court's remark. Therefore, he presents nothing to review. See Tex.R.App.P. 33.1(a)(1); Billy v. State, 77 S.W.3d 427, 429 (Tex. App.-Dallas 2002, pet. ref'd). We resolve the fifth issue against appellant. In his eighth issue, appellant contends the trial court erred in not declaring a mistrial when the prosecutor struck at appellant over counsel's shoulders. In closing, appellant argued that Mother had fabricated the allegations, including her claim that she had walked in on complainant attempting to assault his younger brother. The prosecutor responded that he did not think Mother was smart enough to concoct that story and that:
If you do, I don't know what to say. I kind of feel like Jeff Foxworthy, you might be a redneck. If you believe that, you might be a defense lawyer. Okay?Appellant did not object to the complained-of argument. Therefore, he has not preserved his complaint for appellate review. See Tex.R.App.P. 33.1(a)(1); Cockrell, 933 S.W.2d at 89. We resolve the eighth issue against appellant. In his ninth issue, appellant asserts he received ineffective assistance of counsel. To prevail on an ineffective assistance of counsel claim, an appellant must show (1) counsel's performance fell below an objective standard of reasonableness, and (2) a reasonable probability exists that but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). The record must be sufficiently developed to overcome the strong presumption of reasonable assistance. See Thompson v. State 9 S.W.3d 808, 813-14 (Tex.Crim.App. 1999). Generally, a silent record which provides no explanation for counsel's actions will not overcome the strong presumption of reasonable assistance. See Rylander v. State, 101 S.W.3d 107, 110-11 (Tex.Crim. App. 2003). Further, trial counsel should ordinarily be given an opportunity to explain his actions before being denounced as ineffective. Bone v. State, 77 S.W.3d 828, 836 (Tex. 2002). In this issue, appellant contends his trial counsel was ineffective for not objecting to (1) the prosecutor's remarks about his invocation of his right to counsel, (2) the trial court's remarks concerning reasonable doubt, and (3) the prosecutor's argument striking at appellant over counsel's shoulders. The record before us contains no evidence concerning counsel's reasons for failing to make the above objections and counsel has not been given the opportunity to explain his actions. See Rylander, 101 S.W.3d at 111. Appellant has not met his burden to show counsel's actions fell below an objective standard of reasonableness. See id. We resolve the ninth issue against appellant. In the tenth issue, appellant contends the cumulative effect of the above errors warrants a reversal. Having found no error, appellant's complaint is without merit. Turner v. State, 87 S.W.3d 111, 118 (Tex.Crim.App. 2002); Brown v. State, 92 S.W.3d 655, 669 (Tex. App.-Dallas 2002), aff'd, 122 S.W.3d 794 (Tex.Crim.App. 2003), cert. denied, ___ S. Ct ___, 2004 WL 193882 (2004). We resolve appellant's tenth issue against him. We affirm the trial court's judgment.