No. 05-03-01243-CR
Opinion filed October 25, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 194th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F02-72304-UM. Affirmed.
Before Justices O'NEILL, LANG, and LANG-MIERS.
Opinion By Justice LANG.
Francisco C. Martinez pleaded not guilty to the indictment for the aggravated sexual assault of L.O., a child younger than fourteen. The jury convicted him of the indicted offense and assessed punishment at confinement for life and a fine of $10,000. In four points of error, appellant challenges the jury charges in the guilt/innocence and punishment phases, the references in front of the jury to a "redacted" version of his voluntary statement, and the factual sufficiency of the evidence regarding his identity as the perpetrator. In an additional point of error, appellant contends he received ineffective assistance of counsel. For the reasons that follow, we decide appellant's points of error against him and affirm the trial court's judgment.
I. FACTUAL BACKGROUND
L.O. was an eleven-year-old boy at the time of the alleged offense. He testified that appellant, who was a co-worker and friend of L.O.'s mother, came over to his house uninvited while his mother was absent. Appellant asked to see L.O.'s computer, and they went to L.O.'s room. Appellant asked L.O. to lie on the bed, and appellant rubbed his back. L.O. heard his mother come home, and appellant stopped. Appellant asked L.O.'s mother if he could show L.O. his computer at his apartment. L.O.'s mother agreed, and, while at the apartment, according to L.O., appellant sexually assaulted him. About one year later, L.O. told his mother and others about the assault. II. JURY CHARGE A. Guilt/Innocence Charge
In his second point of error, appellant contends that the trial court reversibly erred in charging the jury on guilt/innocence by its placement of the application paragraph, which followed the elements of the offense and the definitions but came before the abstract instructions on constitutional rights. According to appellant, the placement of the application paragraph effectively precluded instruction on the law applicable to the facts, confused the jury, and was inadequate because it contained a logically inconsistent combination of the application and abstract paragraphs. 1. Applicable Law and Standard of Review
The function of the jury charge is to instruct the jury on the law applicable to the case. Tex. Code Crim. Proc. Ann. art. 36.14 (Vernon Supp. 2004-05) (providing that judge shall deliver to jury "a written charge distinctly setting forth the law applicable to the case"); Dinkins v. State, 894 S.W.2d 330, 339 (Tex.Crim.App. 1995). The charge consists of the abstract portion and the application paragraph or paragraphs. Plata v. State, 926 S.W.2d 300, 302 (Tex.Crim.App. 1996), overruled on other grounds by Malik v. State, 953 S.W.2d 234 (Tex.Crim.App. 1997). The abstract portion "serve[s] as a kind of glossary to help the jury understand the meaning of concepts and terms used in the application paragraphs of the charge." Id. The application paragraph applies the law to the facts, and asks an ultimate question of the jury about whether the defendant is guilty. Id. at 302-03. Appellant did not object to the guilt/innocence charge. Therefore, reversal of his conviction requires that appellant must show that any error caused egregious harm. Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1984). We review any error in the light of the entire jury charge, the state of the evidence, including the contested issues and weight of the probative evidence, the argument of counsel, and any other relevant information revealed by the record as a whole. Abdnor v. State, 871 S.W.2d 726, 733 (Tex.Crim.App. 1994). 2. Discussion
The indictment alleged that appellant intentionally and knowingly caused the contact and penetration of the anus of L.O., a child younger than fourteen years of age, by appellant's sexual organ. See Act of May 26, 1987, 70th Leg., R.S., ch. 573, 1987 Tex. Gen. Laws 2275, 2275, amended by Act of May 28, 2003, 78th Leg., R.S., ch. 528, 2003 Tex. Gen. Laws 1805, 1806 (current version at Tex. Pen. Code Ann. § 22.021(a)(1)(B)(i) (Vernon Supp. 2004-05)); Tex. Pen. Code Ann. Code §§ 22.021(a)(1)(B)(iv), 22.021(a)(2)(B) (Vernon Supp. 2004-05). First, the charge tracked the statutory language. Then, the charge stated definitions and gave the application instructions for the indicted offense. Next, the charge stated the elements of the lesser included offense of indecency with a child, referred to some earlier definitions, and then gave the application instructions for the lesser included offense. The charge then stated the "constitutional rights." Appellant relies on Plata, 926 S.W.2d at 302, to support his argument that the placement of the application paragraph before the explanation of appellant's constitutional rights constitutes error because it suggested that appellant's rights need not be considered when the law was applied to the facts. In Plata, the court of criminal appeals was concerned, not with the placement of paragraphs in the jury charge, but with the absence of a theory, the law of parties, in the application paragraph, which therefore did not authorize a verdict under that theory. Id. at 302. The "logically consistent" combination of paragraphs discussed in Plata refers to the application paragraphs of the charge, which may contain an application paragraph specifying all of the conditions to be met before a conviction under a theory is authorized, or an application paragraph authorizing a conviction under conditions specified by other paragraphs of the jury charge to which the application paragraph necessarily and unambiguously refers, or some logically consistent combination of such paragraphs. Id. at 304. We cannot conclude that Plata supports appellant's contention that the order of the application and constitutional rights paragraphs was error. Moreover, even assuming error, there is no showing that such order constituted egregious harm. The application paragraph followed the elements of the offense. All paragraphs were clearly laid out in the charge. The order is not illogical. We decide the second point adversely to appellant. B. Punishment Charge
In his first point of error, appellant contends the trial court reversibly erred in the charge on punishment by omitting instructions that the jury could not consider evidence of his HIV/AIDS status unless it found proof of this status beyond a reasonable doubt. Appellant's argument is premised on his assertion that HIV/AIDS status is an "extraneous crime or bad act" pursuant to code of criminal procedure article 37.07, section 3(a)(1), which provides in relevant part: Regardless of the plea and whether the punishment be assessed by the judge or the jury, evidence may be offered by the state and the defendant as to any matter the court deems relevant to sentencing, including but not limited to the prior criminal record of the defendant, his general reputation, his character, an opinion regarding his character, the circumstances of the offense for which he is being tried, and, notwithstanding Rules 404 and 405, Texas Rules of Evidence, any other evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt by evidence to have been committed by the defendant or for which he could be held criminally responsible, regardless of whether he has previously been charged with or finally convicted of the crime or act.
Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1) (Vernon Supp. 2004-05). A trial court is required to instruct a jury on punishment that relevant extraneous crimes and bad acts may be considered only if they find beyond a reasonable doubt that the defendant committed those acts. See id. art. 37.07, § 3(a)(1), (b). Even when not requested, failure to give the reasonable-doubt instruction as required is error. Ellison v. State, 86 S.W.3d 226, 227 (Tex.Crim.App. 2002). If the error is not preserved for appeal, it is reviewed for egregious harm. See Almanza, 686 S.W.2d at 171. There was evidence in the punishment phase that appellant had been diagnosed with HIV in 1992. Appellant contends that this is an extraneous offense or bad act. See Rankin v. State, 953 S.W.2d 740, 741 (Tex.Crim.App. 1996) (defining "extraneous offense" as "any act of misconduct, whether resulting in prosecution or not, that is not shown in the charging papers") (emphasis in original omitted). However, we cannot agree that HIV status is an offense or a bad act. See Robinson v. California, 370 U.S. 660, 666-67 (1962) (holding unconstitutional state statute making status as drug addict criminal offense); see also Powell v. Texas, 392 U.S. 514, 533 (1968) (limiting application of Robinson's status analysis to crimes not involving an actus reus, that is, a physical act). Appellant relies on Najera v. State, 955 S.W.2d 698 (Tex.App.-Austin 1997, no pet.), to support his argument that evidence of HIV/AIDS status may be used to show extraneous offenses or conduct. However, in Najera, the issue was whether the State proved, as an aggravating element of sexual assault, that a deadly weapon was used when the alleged deadly weapon was the defendant's "'sexual organ and bodily fluids, that in the manner of its [sic] use and intended use was capable of causing death and serious bodily injury.'" Id. at 700. Thus, HIV was not at issue as a status, an extraneous offense, or bad act in Najera. Appellant also relies on Weeks v. State, 834 S.W.2d 559 (Tex.App.-Eastland 1992, pet. ref'd). In Weeks, the defendant, who had tested positive for HIV, was convicted of attempted murder by spitting on a prison guard. Id. at 561. The Eastland Court of Appeals rejected the defendant's argument that the State did not prove that his conduct of spitting on the guard was reasonably capable of harming the complainant. In Weeks, as in Najera, HIV was not a status, extraneous offense, or bad act. Accordingly, neither Najera nor Weeks support appellant's argument regarding his HIV/AIDS status as an extraneous offense or bad act. Even assuming that appellant's HIV/AIDS status is extraneous offense evidence pursuant to article 37.07, appellant must show egregious harm from the omission of the reasonable-doubt instruction, not admission of the evidence. Ellison, 86 S.W.3d at 228. Appellant cannot show such harm because his HIV/AIDS status was proved beyond a reasonable doubt by uncontradicted testimony from appellant, his sister, and a prison nurse. Appellant's HIV/AIDS status is victim impact evidence relevant to sentencing. Victim impact evidence serves to show the circumstances of the offense and is relevant to sentencing under article 37.07. See Jones v. State, 963 S.W.2d 177, 183 (Tex.App.-Fort Worth 1998, pet. ref'd) (quoting Murphy v. State, 777 S.W.2d 44, 63 (Tex.Crim.App. 1988)); Brooks v. State, 961 S.W.2d 396, 398-99 (Tex.App.-Houston [1st Dist.] 1997, no pet.). This type of evidence bears on the defendant's personal responsibility and moral guilt and thus is relevant to punishment issues. See Jones, 963 S.W.2d at 182-83 (citing Stavinoha v. State, 808 S.W.2d 76, 78-79 (Tex.Crim.App. 1991), and Miller-El v. State, 782 S.W.2d 892, 897 (Tex.Crim.App. 1990)). Here, L.O.'s parents testified that L.O. had tested negative for HIV during periodic testing since the offense and would continue to be tested in the future. There was testimony that a positive test for HIV more than two years after exposure was rare. Also, there was testimony that appellant knew he was HIV positive and had AIDS. We conclude this evidence related to the circumstances of the offense and was admissible as victim impact evidence. Since appellant's HIV/AIDS status is victim impact evidence, we conclude further that the trial court did not err in failing to give a reasonable-doubt instruction. We decide appellant's first point against him. II. REFERENCES TO "REDACTED" STATEMENT
State's Exhibit 1 was appellant's voluntary written statement in Spanish; State's Exhibit 3 was the English translation of the statement; State's Exhibit 4 was an audiotape of the interviewing detective reading appellant's statement to him in Spanish; and State's Exhibit 5 was the English translation of the audiotape. Appellant's statement that he was diagnosed with HIV in 1992 appears in each of these exhibits. In a pretrial hearing, the trial court ruled that this portion of the statement should be redacted when the exhibits were admitted to the jury. When the exhibits were offered during the guilt/innocence phase, the trial court and the State referred without objection to the "redacted version." State's Exhibits 1A, 3A, and 5A were the redacted versions. In his third point of error, appellant argues that references to a "redacted version" would leave the jury with the firm impression that something was being hidden from them. Appellant argues that such references violate rule of evidence 103(c), which requires that proceedings shall be conducted to the extent practicable "to prevent inadmissible evidence from being suggested to the jury by any means." Tex. R. Evid. 103(c). He argues that the harm is so egregious that he was denied his due process right to a fair trial. See Almanza, 686 S.W.2d at 171. "Redact" means "to select or adapt (as by obscuring or removing sensitive information) for publication or release"; "edit"; and "to obscure or remove (text) from a document prior to publication or release." Merriam-Webster's Collegiate Dictionary 1041 (11th ed. 2003). It is a neutral term. Appellant's claimed harm is that the "something being hidden" from the jury was other sexual offenses by him or an admission in this case. There is nothing in the record upon which such a claim can be based. It is mere speculation. Considering the record as a whole, no egregious harm was shown. We decide appellant's third point adversely to him. III. INEFFECTIVE ASSISTANCE OF COUNSEL
In his fourth point of error, appellant contends his counsel was ineffective: (1) because of having allowed the State to admit evidence of his HIV/AIDS status during the guilt/innocence phase by allowing the publication to the jury of the unredacted versions of the statement, and (2) failing to request an instruction requiring proof beyond a reasonable doubt or a limiting instruction for use of the evidence of extraneous offenses or conduct in the guilt/innocence and punishment phases. To prevail on a claim of ineffective assistance of counsel, appellant must show that the act or omission of his counsel fell below the wide range of reasonable professional assistance, and that but for the deficiency, there is a reasonable probability the outcome would have been different. Strickland v. Washington, 466 U.S. 668, 690-91 (1984). Trial counsel is given wide discretion in using his professional judgment regarding decisions which may not produce a successful outcome. Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999). The review of defense counsel's representation is highly deferential and presumes that counsel's actions or omissions fell within a wide range of reasonable professional assistance. Mallett v. State, 65 S.W.3d 59, 63 (Tex.Crim.App. 2001). Although a single egregious error by trial counsel may be sufficient to constitute ineffective assistance, such an error must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson, 9 S.W.3d at 814. When the record is silent on the motivations underlying counsel's tactical decisions, the appellant usually cannot overcome the strong presumption that counsel's conduct was reasonable. Mallett, 65 S.W.3d at 63. Appellant's first alleged error by counsel is premised on his argument that the unredacted versions of his statement were admitted before the jury during the guilt/innocence phase and that the jury heard evidence that he was infected with HIV. However, the record shows that appellant's counsel requested that State's Exhibits 1, 3, 4, and 5 be redacted and not shown to the jury, and the court agreed. These exhibits were admitted subject to the trial court's prior ruling regarding the redaction. Although the record does not show that the audiotape (State's Exhibit 4) was redacted, nothing in the record shows that it was played to the jury. In addition, appellant's record references show that the other exhibits were admitted, but only the redacted versions were read to the jury. After the jury retired, the State indicated that the redacted versions would be provided to the jury if it requested the exhibits during deliberations. The record does not reflect that the jury requested any exhibits. Although unredacted versions of appellant's statement were admitted, nothing in the record shows that they were used or published to the jury. Therefore, we can see nothing in the record which shows that the jury heard that appellant was infected with HIV during the guilt/innocence phase. Even assuming any error in allowing the State to introduce the unredacted statement, appellant cannot meet the Strickland standard by showing that, by failing to object to admission of State's Exhibits 1,3, 4, and 5, trial counsel's representation fell below an objective standard of reasonableness under prevailing professional norms and that there was reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. See Strickland, 466 U.S. at 690-91. Appellant contends next that counsel was ineffective by not obtaining instructions requiring findings of proof beyond a reasonable doubt or a limiting instruction before considering the evidence of extraneous offenses or conduct on both guilt/innocence and punishment. Because the guilt/innocence charge did not include any extraneous offense or conduct, counsel was not ineffective for failing to obtain any instructions. Because we have already concluded that appellant's HIV/AIDS status was not an extraneous offense or conduct as to punishment, we conclude further that any failure to obtain a reasonable-doubt instruction does not support a claim of ineffective assistance. See id. Appellant's fourth point is decided against him. IV. FACTUAL SUFFICIENCY
In his fifth point of error, appellant contends that the evidence regarding his identity as the perpetrator is factually insufficient to support his conviction. A. Applicable Law and Standard of Review
In reviewing the factual sufficiency of evidence to support a verdict, we must answer one question: "Considering all of the evidence in a neutral light, was a jury rationally justified in finding guilt beyond a reasonable doubt?" Zuniga v. State, No. 539-02, 2004 WL 840786, at *7 (Tex.Crim.App. Apr. 21, 2004). We determine the factual sufficiency of evidence by (1) considering if the evidence supporting the verdict is by itself too weak to support the conviction beyond a reasonable doubt and (2) weighing the evidence supporting and contrary to the verdict to determine if the beyond-a-reasonable-doubt standard could not have been met. Id. In conducting this review, we must not "substantially intrude upon" the fact finder's role as the sole judge of the evidence's weight and the testimony's credibility. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000); see Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979). We must defer to the jury's decisions on credibility and weight. Swearingen v. State, 101 S.W.3d 89, 97 (Tex.Crim.App. 2003). B. Discussion
Appellant argues that four "factors" make it likely that the complainant confused appellant with the actual perpetrator: (1) the complainant's failure to identify appellant in court; (2) the one-year delay in accusing appellant; (3) "pseudo-sexual acting out" by complainant; and (4) absence of HIV infection in L.O. Regarding the first "factor" claimed by appellant, there was testimony that, in pretrial interviews, L.O. implicated "Paco," which was appellant's nickname, in the sexual assault. When asked at trial who touched him inappropriately, L.O. answered, "Francisco." L.O. was asked if he saw him in the room. He answered, "Yes." The State asked, "Can you point to him real fast and just tell me what he's wearing?" The record states, "(Witness complies.)" L.O. identified "Francisco" as his mother's friend and co-worker. Nothing in the record shows that the complainant did not point to appellant, nor did appellant object to the identification procedure. L.O. described the sexual assault by appellant. In addition, the complainant's mother identified appellant in court as "Francisco" and stated that his nickname was "Paco." She was asked to point to him. The record indicates she did, and counsel stated, "May the record reflect the witness has identified the defendant in open court." L.O.'s mother described her conversation with appellant on the day of the offense. Although the record does not definitively show that L.O. pointed out appellant, such as by describing his clothing or testimony similar to "let the record reflect" that L.O. identified appellant in open court, even though L.O. was asked to do so, the record shows that the jury would have seen L.O. point at appellant and identify him as the perpetrator. L.O.'s mother's testimony, including her pointing to appellant and her testimony regarding "Francisco" and "Paco," also supports L.O.'s identification evidence. In Rohlfing v. State, 612 S.W.2d 598, 601 n. 2 (Tex.Crim.App. 1981), the court of criminal appeals applied a "totality of the circumstances" test to determine that the jury was adequately apprised that the State's witnesses referred to appellant as the perpetrator of the offense. Here, L.O.'s and his mother's testimony identified appellant as the perpetrator. Also, the indictment and the charge on guilt/innocence listed "Francisco C. Martinez" as the defendant, and the jury's verdict states that it found "the defendant" guilty of the offense "as charged in the indictment." See id. at 601. Accordingly, the record does not show any confusion or misidentification by the jury. See id. (reviewing witnesses' testimony and jury verdict to determine identification issue); Miller v. State, 667 S.W.2d 773, 775-76 (Tex.Crim.App. 1984) (applying "totality of the circumstances" test). Now, we consider, in turn, the evidence regarding the other three "factors" as to identity. As to the second "factor," the one-year delay in accusing appellant, the record reflects evidence that L.O. waited "so long" to tell someone what happened because "he just didn't want to" and that it is very common for boys to delay their outcry or "not even to tell at all." The third "factor" was L.O.'s "pseudo-sexual acting out." In his statement, appellant denied initiating the encounter, denied contact or penetration, and stated that L.O. told him "he liked it." However, L.O. testified that appellant initiated the sexual encounter and hurt him. L.O.'s testimony supported the allegations in the indictment. As to the fourth and final "factor," the absence of evidence of HIV infection in L.O., because we have determined that the jury heard no evidence regarding appellant's HIV status during the guilt/innocence phase, that "factor" can have no application to the evaluation of the evidence of identity. After reviewing and weighing the evidence supporting the judgment and the evidence contrary to the judgment under the Zuniga standard, including appellant's four "factors" respecting identity, we cannot conclude that the contrary proof is so strong that the State did not meet the beyond-a-reasonable-doubt standard. Further, we cannot conclude the evidence is too weak to support a finding of guilt beyond a reasonable doubt. Any inconsistencies in the testimony go to the witnesses' credibility, and the fact finder decided those issues against appellant. We conclude the evidence was factually sufficient to support appellant's conviction. We resolve appellant's fifth issue against him. V. CONCLUSION
Having decided appellant's five points against him, we affirm the trial court's judgment.