Opinion
No. 05-03-01518-CR
Opinion Issued April 25, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the Criminal District Court No. 4, Dallas County, Texas, Trial Court Cause No. F02-51713-K. Affirmed.
OPINION
In appellant Jose Saenzpardo's appeal of his sentence of fifty years' imprisonment and a $5,000 fine following his plea of no contest before the trial court to aggravated sexual assault, he raises only one issue: that his trial counsel was ineffective for failing to object to the State's outcry witness. Concluding appellant has not presented a record sufficient to carry his burden of proving his trial counsel was ineffective, we affirm the judgment. Appellant was charged with aggravated sexual assault on M.S., a child younger than fourteen years, by both contact and penetration of her female sexual organ by appellant's sexual organ. See Tex. Pen. Code Ann. § 22.021(a)(1)(B)(iii), (2)(B) (Vernon Supp. 2004-05). The offense was alleged to have occurred on June 1, 2001. After being admonished by the trial court, appellant waived a jury and pleaded no contest before the trial court to the offense of aggravated sexual assault. The following facts were developed through the State's evidence. Appellant's wife, Ophelia, moved to the United States in 2001, joining appellant, who was already working here. They were later joined by their two older daughters, one of whom was M.S. The family lived together in an apartment in Dallas. In June 2002, when M.S. began bleeding from her vaginal area after riding her bicycle, Ophelia took M.S. to the doctor. The doctor discovered M.S. had vaginal warts. Both appellant and Ophelia also had warts. During a nurse's interview with M.S., the nurse learned M.S. had been sexually abused. M.S. later told Ophelia that appellant had gotten on top of her and that he would "drop her panties" and put his penis in her vaginal part. M.S. testified at trial. M.S. referred to her vaginal area as her "mejilla." M.S. testified that appellant touched her mejilla; however, she did not know what part of appellant's body touched hers. Through a detective for the Dallas Police Department, appellant's confession, which had been translated into English, was admitted into evidence, without objection. In that confession, appellant admitted to putting his penis "on top of M.S.'s sexual organ." On appeal, appellant claims trial counsel was ineffective in not objecting to Ophelia being the State's outcry witness. Appellant contends that Ophelia was not the first person over the age of eighteen to whom M.S. described the offense. Appellant claims the nurse was that person. Appellant further claims that without the outcry evidence from Ophelia, the evidence would have been insufficient under article 1.15 of the Texas Code of Criminal Procedure to support appellant's no contest plea. Because we conclude the record on appeal does not support appellant's claim, we further conclude appellant has failed in his burden to show ineffective assistance of counsel. Appellant's burden on appeal is well established. To prevail on appeal on an ineffective assistance claim under both the federal and state constitutions, appellant must show that his trial counsel's performance was deficient and that such deficient performance prejudiced his defense to such a degree he was deprived of a fair trial. Strickland v. Washington, 466 U.S. 668, 688-92 (1984); Hernandez v. State, 726 S.W.2d 53, 57 (Tex.Crim.App. 1986). As an appellate court, we must examine the totality of counsel's representation in determining whether trial counsel was ineffective. See Wilkerson v. State, 726 S.W.2d 542, 548 (Tex.Crim.App. 1986). Appellant has the sole burden of showing his counsel's performance was deficient. See Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002). Appellant must do so by a preponderance of the evidence. See Moore v. State, 694 S.W.2d 528, 531 (Tex.Crim.App. 1985). And, moreover, the appellate record must support appellant's claim of ineffective assistance. See Johnson v. State, 691 S.W.2d 619, 627 (Tex.Crim.App. 1984). Before "being condemned as unprofessional and incompetent," defense counsel should be given an opportunity to explain his or her actions. See Bone, 77 S.W.3d at 836. Appellant's motion for new trial filed in this case did not raise the issue of ineffective assistance of counsel nor do we have before us any other post-trial evidence of counsel's trial strategy. Absent a properly developed record, an ineffective assistance claim must be denied as speculative, and, further, such a claim cannot be built upon "retrospective speculation." See id. at 835. To prevail on appeal on an ineffective assistance of counsel claim, an appellant must present a record which affirmatively demonstrates the claimed ineffectiveness. See id. Appellant has not presented us with such a record in this case. The record before us is silent about trial counsel's strategy or why he did not object to Ophelia's outcry testimony. Normally, a silent record cannot defeat the strong presumption of effective assistance of counsel. See Thompson v. State, 9 S.W.3d 808, 813-14 (Tex.Crim.App. 1999); Weeks v. State, 894 S.W.2d 390, 392-93 (Tex.App.-Dallas 1994, no pet.). But see Andrews v. State, No. PD-0993-03, 2005 WL 658979, at *4 (Tex.Crim.App. Mar 23, 2005) (reversing a conviction "in a rare case" on the basis of ineffective assistance of counsel when trial counsel did not object to a misstatement of law by the prosecutor during argument). In Andrews, the same prosecutor who filed a motion to cumulate the sentences in four counts of sexual abuse later argued to the jury, "You give him 20 years in each case, it's still just 20 years. It's still not 80. You can give different amounts if you want. You can give 20, 10, 10, five, it's still just 20." Id. at *4. Trial counsel did not object to the prosecutor's misstatement of the law. The trial court later granted the State's motion to cumulate the sentences and imposed a combined prison sentence of seventy-eight years. Id. at *1. Concluding the argument "left the jury with the incorrect impression that the appellant's sentences could not be stacked and that the appellant would serve no more than twenty years in prison for all four counts," the court found the record contained all the information it needed to conclude "there could be no reasonable trial strategy in failing to object" to the prosecutor's misstatement of the law. Id. at *1, 3. The court stated:
Under the extremely unusual circumstances of this case, the record contains all the information that we need to make a decision. Trial counsel failed to object to the prosecutor's misstatement of the law regarding whether the appellant's sentences could be stacked, even though he knew that the State had filed a motion to cumulate the sentences. There can be no reasonable trial strategy in failing to correct this false impression that was harmful to the appellant.Id. at *3. Such is not the case here. Failing to object to a misstatement of the law that is detrimental to one's client, and when the harm is so clearly presented by the record on appeal, is quite different from failing to object to evidence as a matter of trial strategy. Andrews is distinguishable, and thus not controlling here. Unlike Andrews, the record before us does not contain all the information we need to make a decision. Appellant contends that without the outcry testimony, the evidence would have been insufficient because M.S. did not know what part of her father's body made contact with her sexual organ. Appellant recognizes that his confession states he placed his penis "on top of [complainant's] vagina, but he suggests "[i]t is possible" appellant placed his penis "above the child's sexual organ, without making contact," thus the evidence would be insufficient. We disagree. In determining sufficiency under article 1.15, we look to the evidence and reasonable inferences or logical deductions therefrom-not to possibilities. A reasonable inference from appellant's confession that he put his penis "on top of" M.S.'s vagina is that appellant's sexual organ made contact with M.S.'s sexual organ, and the record reflects that M.S. had vaginal warts. Thus the evidence, even without Ophelia's outcry testimony, would have been sufficient under article 1.15 to support appellant's no contest plea. Having concluded appellant has not met his burden of showing trial counsel was ineffective, we resolve appellant's issue against him. We affirm the trial court's judgment.
The nurse told Ophelia that her own daughter had experienced the same type of sexual abuse.