Opinion
NO. 14-14-00973-CR
02-18-2016
JESUS TINOCO, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 177th District Court Harris County, Texas
Trial Court Cause No. 1414348
MEMORANDUM OPINION
Appellant Jesus Tinoco asserts his trial counsel failed to provide effective assistance because trial counsel did not object to a statement the prosecutor made during closing argument about appellant's non-testimonial demeanor during trial. Presuming for the sake of argument that failing to object was deficient conduct, the record shows no prejudice resulted and so appellant's ineffectiveness claim fails. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant is the step-grandfather of the complainant, M.C. When M.C. was nine years' old, she would stay with appellant after school while her parents were working. M.C. was alone with appellant each day for a period of time before C.B., appellant's stepdaughter, arrived home from school. M.C. testified that during this time, appellant regularly made her watch pornography and made inappropriate contact with her sexual organ using his fingers and mouth. M.C. testified that she had no reaction. She did not participate nor did she tell appellant to stop. After about a year of these incidents, M.C. told appellant to stop, and he did.
M.C. did not make outcry at the time of the abuse because she was afraid her mother would be upset and that she might lose her stepfather, who is appellant's stepson. Approximately eleven years after the abuse, however, M.C. made outcry to C.B., a relative, during a night out together. C.B. recently had changed her name, but M.C. had continued to refer to C.B. by her former name. To emphasize the importance of calling C.B. by her new name, C.B. explained to M.C. that C.B. changed her name, in part, because appellant molested her. C.B. explained to M.C. that the abuse occurred when C.B. was between the ages of twelve and fifteen. After listening to C.B.'s disclosure, M.C. disclosed that appellant had abused M.C. as well. M.C. and C.B. told M.C.'s mother about the abuse that night and M.C. and M.C.'s mother filed a police report the next day.
After M.C.'s report, Officer Becky Wilson contacted appellant requesting an interview. Upon learning appellant had retained an attorney, Officer Wilson began to make arrangements with appellant's attorney to interview appellant. Shortly after requesting to interview appellant, Officer Wilson received information that appellant had purchased plane tickets to Mexico and intended to travel to Mexico to avoid criminal charges. Officer Wilson contacted the airline and confirmed appellant had purchased a ticket.
Appellant was charged with aggravated sexual assault of a child. Officer Wilson obtained an arrest warrant the day appellant's flight was scheduled to depart. Officer Wilson notified airport security officers of the warrant for appellant's arrest. Appellant already had boarded the flight and was arrested only after airport security officers requested that the pilot hold the airplane so that the warrant team could board the flight and arrest appellant.
At trial, M.C. and C.B. provided detailed accounts of appellant's abuse. Officer Wilson also testified regarding the details of appellant's arrest on board the flight bound for Mexico. The jury found appellant guilty as charged and sentenced appellant to fifty years' confinement. In his sole issue, appellant asserts his trial counsel was ineffective in failing to object to a statement in the prosecutor's closing argument relating to appellant's non-testimonial demeanor during trial.
INEFFECTIVE -ASSISTANCE-OF-COUNSEL ANALYSIS
We examine ineffective-assistance-of-counsel claims under the standard set forth in Strickland v. Washington. See 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). To prevail on an ineffective-assistance claim, appellant must prove (1) counsel's representation fell below the objective standard of reasonableness, and (2) there is a reasonable probability that but for counsel's deficiency, the result of the proceeding would have been different. Strickland, 466 U.S. at 694; Hernandez v. State, 726 S.W.2d 53, 55 (Tex. Crim. App. 1986). Appellant bears the burden of proving his ineffective-assistance claim by a preponderance of the evidence. Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998).
When the prejudice prong of the Strickland test is dispositive, we need address only that prong on appeal. See My Thi Tieu v. State, 299 S.W.3d 216, 225 (Tex. App.—Houston [14th Dist.] 2009, pet. ref'd). A defendant establishes prejudice by proving a reasonable probability that the result of the proceeding would have been different had counsel's performance been proficient and thus, the defendant was deprived of a fair trial. Strickland, 466 U.S. at 694; Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). A "reasonable probability" is a probability sufficient to undermine confidence in the outcome of the proceeding. Strickland, 466 U.S. at 694; Cox v. State, 389 S.W.3d 817, 819 (Tex. Crim. App. 2012). In evaluating prejudice, appellate courts consider the totality of the evidence. Strickland, 466 U.S. at 695; see Frangias v. State, 413 S.W.3d 212, 218 (Tex. App.—Houston [14th Dist.] 2013, no pet.) (op. on reh'g). This approach is necessary to determine prejudice because a verdict weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support. Strickland, 466 U.S. at 695; Frangias, 413 S.W.3d at 218.
We need not and do not reach the issue of whether trial counsel's performance was deficient.
Citing Doherty v. State, appellant argues that he need not show that there is a reasonable probability the proceeding would have been different but for counsel's deficient performance so long as he establishes the proceeding was "unreliable because of a breakdown in the adversarial process." See 781 S.W.2d 439, 442 (Tex. App.—Houston [1st Dist.] 1989, no writ). But, the only way appellant can prove a breakdown in the adversarial process is by meeting both prongs of the Strickland test. See Andrews v. State, 159 S.W.3d 98, 101 (Tex. Crim. App. 2005) (noting that unless appellant satisfies both prongs of the Strickland test, "it cannot be said that his conviction is rendered unreliable by a breakdown in the adversarial process").
During closing argument, the prosecutor made the following statement:
And I love this kind of trial, and I love dealing with these kind of men because these men exercise so much control over these victims. They have them alone to themselves. They can do whatever they want. They can scare them. They can get them to shut up and tell no one. They have complete control over the situation. These men are all alike.Appellant argues that his trial counsel was ineffective in failing to object to the prosecutor's statement about his alleged inability to look the witnesses in the eye during trial. We presume for the sake of argument that the prosecutor's statement was impermissible and that trial counsel was deficient in failing to object to the statement.
And then when I indict him and drag him into a courtroom and put his victims up there and have them look him in the eye and say, "This is what - - this is what you did to me. Acknowledge it"; and when that happens, they shrink into nothing. His big balls that he's so proud of go up in smoke and he can't even bring himself to look at them in the eye when they say, "This is what you did to me."
Appellant explains that the credibility of M.C. and C.B. was central to the trial because there was no physical evidence of any abuse and M.C. and C.B. did not allege abuse until years after they claim it occurred. Appellant asserts he was harmed by the prosecutor's statement because it bolstered the credibility of M.C. and C.B.
M.C. and C.B. provided detailed testimony about their experiences, which had many similarities. In particular, the testimony of M.C. and C.B. revealed that appellant had a pattern of abusive behavior. M.C. and C.B. described similar experiences of abuse even though M.C. testified that she had not disclosed the details of the abuse to either C.B. or M.C.'s mother because "[i]t was just a touchy subject, a real sensitive subject for me; and I was already embarrassed as it is." According to M.C., the first time she provided details of the abuse was when she spoke with Officer Wilson. The similarities between the testimony of M.C. and C.B. related to the acts appellant performed most frequently and the limits appellant apparently self-imposed. For example, appellant did not threaten either M.C. or C.B., nor did he penetrate their sexual organs with his sexual organ.
M.C. and C.B. testified consistently throughout trial and provided logical, consistent responses to questions posed to them on cross-examination. M.C. and C.B. were consistent even regarding the details of the abuse and their reasons for failing to disclose the abuse earlier. M.C. and C.B. bolstered their own credibility by acknowledging appellant had good qualities. C.B. testified that appellant had provided for her and that she had a good childhood until the abuse began. M.C. testified about appellant's role supporting her step-grandmother. M.C. also testified regarding the personal risks she faced in disclosing the abuse. M.C. testified she had an "awesome" relationship with her stepfather and feared she would lose him due to either her mother's reaction to her disclosure or due to his reaction to the disclosure.
The jury did not hear about any motive for M.C. or C.B. to fabricate the abuse. To the contrary, both M.C. and C.B. risked loss or damage to close relationships they had with the rest of their family by disclosing the abuse. The record does not reveal strong attacks on the credibility of either M.C. or C.B. Appellant's strongest attack on C.B.'s credibility was pointing out that she disclosed the abuse only after learning appellant was not her biological father. Appellant's strongest attack on M.C.'s credibility was in asking whether she fabricated the allegations to strengthen her relationship with C.B. Appellant asked M.C. and C.B. about their delay in reporting the abuse to police. C.B. testified that her family did not support her reporting the abuse and noted that appellant provided important financial support to her mother. C.B. testified that she did not feel strong enough to report appellant without the support of her family. M.C. testified that she was afraid of the impact her disclosure would have on her relationship with her stepfather.
Appellant's actions in boarding a flight to Mexico shortly after the police sought an interview further bolstered the credibility of the allegations against him. In addition to the compelling testimony from M.C. and C.B., Officer Wilson testified she had information that appellant boarded the flight in an attempt to flee to Mexico to avoid criminal charges. See Cawley v. State, 310 S.W.2d 340, 342 (Tex. Crim. App. 1957) (noting flight is some evidence of guilt).
The jury had an opportunity to assess the credibility of M.C. and C.B. throughout their extensive testimony and cross-examination. The jury also had the opportunity to observe appellant's reaction to the testimony first-hand throughout the course of the trial. The prosecutor made a brief comment on appellant's reaction to the testimony during closing argument. Although highlighting appellant's reaction to the testimony may have been improper, the prosecutor made the improper statement amidst largely self-congratulatory remarks. It is unclear whether the prosecutor was making a direct reference to appellant's demeanor during this trial; the prosecutor's use of a vague plural pronoun suggests he may have been speaking generally about trials involving sexual-abuse charges. Thus, although we presume the prosecutor's statement was improper, the nature of the prosecutor's statement and the context of the remarks mitigates its potential to cause prejudice.
In light of the extensive testimony and cross-examination of C.B. and M.C., the strength of the evidence against appellant, and the nature of the prosecutor's comment, we cannot conclude there is a reasonable probability that, but for an objection to the prosecutor's statements, the results of the proceeding would have been different. See West v. State, 474 S.W.3d 785, 793-94 (Tex. App.—Houston [14th Dist.] 2014, no pet.) (holding appellant failed to show prejudice when record contained ample evidence of guilt). Accordingly, appellant has not met his burden to prove he suffered prejudice from any presumed deficiency in trial counsel's failure to object to the prosecutor's comments during closing argument. We overrule appellant's sole issue.
CONCLUSION
Appellant's ineffective-assistance-of-counsel arguments provide no basis for appellate relief. Accordingly, we affirm the trial court's judgment.
/s/ Kem Thompson Frost
Chief Justice Panel consists of Chief Justice Frost and Justices Christopher and Donovan.
Do Not Publish — TEX. R. APP. P. 47.2(b).