Opinion
No. 13-02-453-CR
Memorandum Opinion delivered and filed August 5, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On appeal from the 404th District Court of Cameron County, Texas.
Before Chief Justice VALDEZ and Justices HINOJOSA and CASTILLO.
MEMORANDUM OPINION
Appellant, Jesus David Sanchez, was convicted of aggravated sexual assault of a child. In two issues, appellant contends (1) the trial court erred in allowing numerous witnesses to testify as "outcry" witnesses under article 38.072 of the code of criminal procedure, and (2) trial counsel provided ineffective assistance of counsel. We affirm. As this is a memorandum opinion and the parties are familiar with the facts, we will not recite them here except as necessary to advise the parties of this Court's decision and the basic reasons for it. See Tex.R.App.P. 47.4. Out-of-court statements offered at trial to prove the truth of the matter asserted are inadmissible hearsay unless the statements fall within a hearsay exception found in the statutes or rules of evidence. See Tex. R. Evid. 802. Appellant's first issue is premised on article 38.072 of the code of criminal procedure, which provides an exception to the hearsay rule, allowing testimony regarding a child abuse victim's initial outcry statement made to the first person eighteen years of age or older, other than the defendant, to whom the child made a statement about the offense. See Tex. Code Crim. Proc. Ann. art. 38.072 (Vernon Supp. 2004). In this case, the State designated the complainant's mother, Leticia Romero, as its only "outcry" witness. First, appellant failed to make trial objections premised on the "outcry" exception regarding any witness other than Ana Gabert, the complainant's probation officer. Therefore, any alleged errors regarding outcry testimony from any witness other than Gabert were waived and appellant's complaints were not preserved for appellate review. See Tex.R.App.P. 33.1; Strong v. State, No. 13-02-542-CR, 2004 Tex. App. LEXIS 5107, *24 (Tex. App.-Corpus Christi June 10, 2004, no pet. h.); Martinez v. State, 822 S.W.2d 276, 278-79 (Tex. App.-Corpus Christi 1991, no pet.). With respect to Gabert's testimony, appellant objected on grounds that she had not been properly identified as an outcry witness. Yet the State did not offer Gabert's testimony as outcry testimony. Instead, the State contended that Gabert's testimony was admissible to show a prior consistent statement by the complainant given that appellant had vigorously attacked the complainant's truthfulness and credibility in cross-examination. The record fails to clearly reflect the trial court's reasoning in admitting Gabert's testimony. We conclude the trial court did not err in admitting Gabert's testimony. Where there were attempts to impeach the credibility of the complainant, testimony from Gabert would not constitute hearsay because it related a prior consistent statement made by the complainant, who was subject to cross-examination and whose prior statement rebutted a charge of motive or recent fabrication. See Tex. R. Evid. 801(e)(1)(B); Long v. State, 821 S.W.2d 216, 217 (Tex.Crim.App. 1991) (citing Grogan v. State, 713 S.W.2d 705, 710 (Tex. App.-Dallas 1986, no pet.)). Moreover, the content of Gabert's testimony was admitted elsewhere in the record through direct testimony from the complainant. Further, even if the trial court had abused its discretion in admitting Gabert's testimony, we conclude that any such error did not affect appellant's substantial rights. Error may not be predicated on a ruling admitting or excluding evidence unless a substantial right of the party is affected. See Tex. R. Evid. 103(a); Tex.R.App.P. 44.2(b). An appellant's substantial rights are implicated "when the error had a substantial and injurious effect or influence in determining the jury's verdict." King v. State, 953 S.W.2d 266, 276 (Tex.Crim.App. 1997). A conviction should not be overturned for such error if the Court, after examining the record as a whole, has fair assurance the error did not influence the jury, or had but a slight effect. Johnson v. State, 967 S.W.2d 410, 417 (Tex.Crim.App. 1998). After reviewing the record as a whole, we cannot conclude that the admission of the complained of testimony had a substantial and injurious influence on the verdict. The victim's mother testified that the complainant told her that appellant would take the complainant to the store and, while driving, sit her "on top of him and he would unzip his pants and make her sit and make her drive, supposedly teach her how to drive." The record reflects that both appellant and the complainant, who was nineteen years old at the time of trial, provided conflicting testimony regarding the alleged incidents of abuse. The jury was the sole judge of the weight and credibility of witness testimony. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000); Garza v. State, 82 S.W.3d 791, 793 (Tex. App.-Corpus Christi 2002, no pet.). We overrule appellant's first issue. In his second issue, appellant contends that trial counsel provided ineffective assistance of counsel because he failed to object to the foregoing hearsay testimony and because he failed to adequately question the venire members regarding their knowledge of the complainant. In short, one of the complainant's former teachers served on the jury. Strickland v. Washington, 466 U.S. 668 (1984), sets forth the proper standard of review for effectiveness of counsel. See Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App. 1999); Hernandez v. State, 988 S.W.2d 770, 772 (Tex.Crim.App. 1999). Strickland requires a two-part inquiry. The defendant must first show that counsel's performance was deficient, i.e., that his assistance fell below an objective standard of reasonableness. Thompson, 9 S.W.3d at 812. Second, the defendant must further prove that there is a reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different. Id. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. The determination regarding whether a defendant received effective assistance of counsel must be made according to the facts of each case. Id. An appellate court looks to the totality of the representation and the particular circumstances of the case in evaluating the effectiveness of counsel. Id. The appellant bears the burden of proving by a preponderance of the evidence that counsel was ineffective. Id. at 813. There is a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. Strickland, 466 U.S. at 689; see Davis v. State, 930 S.W.2d 765, 767 (Tex. App.-Houston [1st Dist.] 1996, pet. ref'd). To defeat the presumption of reasonable professional assistance, "any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness." McFarland v. State, 928 S.W.2d 482, 500 (Tex.Crim. App. 1996) (per curiam). Given the standard of review for effectiveness of counsel, appellant has not met his burden to prove that trial counsel's representation fell below an objective standard of reasonableness. In the instant case, the record does not address counsel's rationale regarding the complained-of actions. Thus, the record is not sufficient to rebut Strickland 's presumption that the challenged actions of trial counsel were the result of "sound trial strategy." See Strickland, 466 U.S. at 689. Moreover, given the record evidence, appellant has failed to show there is a reasonable probability that but for counsel's allegedly deficient performance, the result of the proceeding would have been different. Id. As discussed previously, the verdict was supported by direct testimony from the complainant. In terms of appellant's allegations regarding an inadequate voir dire, we note that the contested juror, who had previously taught the complainant and, at the time of trial, served as coach to the complainants' brother, notified the court and counsel as soon as he realized that he knew the complainant. He was questioned by both the State and appellant's trial counsel, and repeatedly stated that he could be fair and impartial despite his knowledge of the complainant. After the trial court allowed this juror to remain on the jury, trial counsel specifically objected to proceeding with trial. Under these facts, we cannot conclude that trial counsel offered ineffective assistance of counsel. See, e.g., Moody v. State, 923 S.W.2d 689, 693 (Tex. App.-Tyler 1996, no pet.) (refusing to find ineffective assistance of counsel where venire member knew complainant). Appellant's second issue is overruled. The judgment of the trial court is affirmed.