Opinion
No. 4-05-00064-CR
Delivered and Filed: February 22, 2006. DO NOT PUBLISH.
Appeal from the 381st Judicial District Court, Starr County, Texas, Trial Court No. 01-CR-315, Honorable John A. Pope III, Judge Presiding. Affirmed.
Sitting: Sarah B. DUNCAN, Justice, Karen ANGELINI, Justice, Sandee Bryan MARION, Justice.
MEMORANDUM OPINION
Trevino was found guilty of attempted sexual assault of a child and was sentenced to ten years imprisonment. Trevino appeals, arguing that he was denied his right to counsel, that the evidence is legally insufficient to support his conviction, and that the trial court erred in denying his motion for continuance, in allowing the admission of expert testimony, and in submitting a jury charge instruction. We affirm the judgment of the trial court.
Background
In June of 2001, seven year-old F.T., Trevino's daughter, refused to visit him. She reported to her mother that Trevino had on previous occasions gotten on top of her, taken off her pants, and kissed her private parts. Trevino was charged with sexually assaulting a child.Right to Counsel
In his first issue, Trevino argues that his right to retain counsel of his own choice, provided by article 1, section 10 of the Texas Constitution, was violated. We disagree. According to the record, initially, Trevino retained a private defense attorney of his own choice, Calixtro Villarreal. However, on November 8, 2002, Villarreal filed a motion to withdraw as counsel, and the motion was granted by the trial court. Finding that Trevino was indigent, the court appointed attorney Omar Escobar to represent Trevino. On June 9, 2003, Trevino failed to appear in court for pre-trial proceedings. With regard to Trevino's absence from the courtroom, the record shows that the following occurred:Eleazar Trevino:
Derly [Trevino] is not presenting himself because since Wednesday he did not have a lawyer. We looked for a lawyer. We talked to five lawyers. Nobody wanted to take care of us. . . . We had some problem with Mr. Escobar that instead of defending him . . . he was accusing him.
Court: . . . Mr. Escobar made a motion to withdraw, but I'm the only one that can approve it. [Trevino] did have a lawyer, and the lawyer is here, and we're ready to proceed. . . ."
Omar Escobar: [Trevino has] a difference opinion with me as to the strategy and as to some of the nature of the testimony of some of the witnesses. We disagreed about that, and that is the nature of the disagreement. At this point, the allegations are now that I have — that I do not wish to defend Mr. Trevino. That, of course, is not the case, Your Honor. We do have significant differences in the defense of this case.The trial judge refused to appoint another attorney to represent Trevino, and Escobar defended Trevino for the remainder of the trial proceedings. On appeal, Trevino argues the following:
If the trial court had investigated in greater detail defense counsel's assertions, the court would have learned that [Trevino] was not satisfied with defense counsel's strategy and could not (and should not) proceed to trial with Mr. Omar Escobar. Differences in strategy to employ at trial . . . destroys an attorney-client relationship. [Trevino] should not have been forced to employ Mr. Omar Escobar.Trevino is correct that he has a constitutional right to employ a counsel of his own choice to defend him. See Wheat v. United States, 486 U.S. 153, 159 (1988) (construing Sixth Amendment to United States Constitution); Jones v. State, 926 S.W.2d 386, 390 (Tex.App.-Fort Worth 1996, pet. ref'd) (construing article I, section 10 of Texas Constitution). Here, however, Trevino did not employ Escobar or any other attorney, after Villarreal withdrew, to represent him. Instead, because he was indigent, an attorney was appointed to represent him. When appointing counsel for an indigent defendant, the trial court has no duty to search for an attorney who will be agreeable to the defendant. Malcom v. State, 628 S.W.2d 790, 791 (Tex.Crim.App. 1982). Appointment of new counsel is a matter solely within the discretion of the trial court. Solis v. State, 792 S.W.2d 95, 100 (Tex.Crim.App. 1990). Once the court has appointed an attorney to represent the indigent defendant, if the defendant is dissatisfied with the appointed attorney, he bears the burden of making the trial court aware of his dissatisfaction with counsel, stating the grounds for the dissatisfaction, and substantiating the grounds. Hill v. State, 686 S.W.2d 184, 187 (Tex.Crim.App. 1985); Malcom, 628 S.W.2d at 791; see also Thomas v. State, 550 S.W.2d 64, 68 (Tex.Crim.App. 1977) (noting that defendant bears the burden of showing adequate cause for the appointment of a different attorney). Trevino argues that the disagreement between himself and Escobar was of "a fatal nature," making "any possibility of continual representation impossible." Nonetheless, Trevino has failed to meet his burden of substantiating his claim. The record reflects that Escobar represented Trevino competently and vigorously, providing adequate representation. See Malcom, 628 S.W.2d at 791-92 (holding that alleged irreparable animosity between the accused and his defense attorney did not prevent that attorney from providing adequate representation to that client). We, therefore, overrule this issue. Denial of the Motion for Continuance Trevino next argues that the trial court erred when it failed to grant a continuance and proceeded to trial notwithstanding his absence, in violation of article 33.03 of the Texas Code of Criminal Procedure. Article 33.03 provides that, "when the defendant voluntarily absents himself after pleading to the indictment or information, or after the jury has been selected when trial is before a jury, the trial may proceed to its conclusion." Tex. Code Crim. Proc. Ann. art. 33.03 (Vernon 1989). We review a trial court's finding that the defendant has voluntarily absented himself from a trial under an abuse of discretion standard. See Moore v. State, 670 S.W.2d 259, 261 (Tex.Crim.App. 1984). The validity of a trial court's decision that the defendant's absence was voluntary will generally have to be determined in hindsight. Id. "Absent any evidence from the defendant to refute the trial court's determination that his absence was voluntary, we will not disturb the trial court's finding." Id. The record reflects that Trevino appeared with his defense counsel for jury selection on May 30, 2003. However, Trevino failed to appear in court on June 9, 2003, when the trial on the merits was to begin. Trevino argues that his absence from the trial was involuntary because (1) Escobar had stated that Trevino "had fatal differences with him regarding the defense strategy of his case" and he "did not want Escobar to represent him at trial"; (2) Trevino's brother testified that Trevino "was seeking new counsel since current counsel was accusing him and not helping him with a defense strategy"; and (3) Trevino's "absence was involuntary due to sense and belief of hopelessness because [Trevino] did not have counsel of his own choosing." Although Trevino has presented evidence why he did not wish to attend the trial, he has failed to present any evidence to show that his absence was involuntary. Everything that Trevino points to reaffirms the trial court's conclusion that Trevino was absent due to his own voluntary act. In addition, the record reveals that because one of the jurors was ill and unable to be present at the trial on June 9, 2003, the trial court reset the case to June 11, 2003. However, Trevino still failed to appear on the reset date, without showing that his absence was involuntary. Because the trial court did not abuse its discretion, we overrule this issue. Expert Testimony A. Testimony Regarding Credibility Trevino next argues that the trial court committed error when it allowed the testimony of an expert witness, Gregorio Pina, III, M.D. We disagree. First, Trevino asserts that the trial court abused its discretion when it allowed the testimony of Dr. Pina regarding the truthfulness of F.T. because "Dr. Pina gave an opinion that impermissibly entered the province of the jury beyond assisting the trier of fact." Second, Trevino argues that the trial court erred in allowing Dr. Pina to bolster the testimony of F.T. The Texas Rules of Appellate Procedure require an appellant's brief to contain "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) (emphasis added). Although Trevino argues that Dr. Pina's testimony pertained to truthfulness and bolstering, Trevino has failed to show where exactly in the reporter's record the errors allegedly occurred. Thus, he has waived this issue by failing to adequately brief it. Even if Trevino had adequately briefed this issue, he failed to preserve error for appeal. At trial, Dr. Pina, a licensed psychologist testified regarding his evaluations and treatment of sexually abused children. According to Dr. Pina, in July of 1998 and in June of 2001, he met with F.T. when she was referred to him by Child Protective Services. After Dr. Pina described his meetings with F.T., the State asked him what diagnosis he arrived at in his medical evaluation. When the defense attorney objected, the court sustained the objection. Subsequently, the following occurred during cross examination of Dr. Pina:
Defense: Doctor Pina, everything that you've said here with regard to reports, this has been examinations or whatever you've received has been from other persons; is that correct?
Dr. Pina: That's not true. I gathered the symptoms from the child and from the mother and evaluated reports from police departments to see if there was consistency across symptoms and story across people and across time.
Defense: Your Honor, that's all I have.
Then, during the redirect examination by the State:
State: Was there consistency, sir, in F.T.'s story?
Dr. Pina: There was consistency —
Defense: Your honor, I'm going to object. This is going to — this is going into what we've objected to already. It's asking him to make a determination as to the allegation and whether it is consistent with any particular allegation, Your Honor. That's what the purpose of the question is.
State: I'm asking if there is consistency from different — from different reports she's made to different people. If the same thing she told her mother, the same thing she told police, the same thing she told Doctor Pina.
Defense: And I believe this also —
State: I'm asking for —
Court: Let's not interrupt each other. Are you through, Mr. Rivas?
State: Yes, sir. I'm just asking if there is consistency among the statements that he is aware of.
Court: My problem is, you asked him question concerning the limitation of his examination, and he responded differently. And now Mr. Rivas is trying to delve into that aspect to determine the consistency of what he reviewed is what I'm looking at.
Defense: Your Honor, I have not — respectfully, I don't think I've opened the door. What I simply asked him was whether everything he has learned has been from other persons. That's what I'm asking. With regards to consistency, the real problem here is the bolstering aspect of this. If she has been — she has been consistent, it really goes to her testimony. And I think that's the real problem here, and I've already raised the objection on a previous occasion about this.
Court: I'm going to overrule your objection. Go ahead, Mr. — can you respond to that, Doctor?
Dr. Pina: Actually, I forgot — with all the talking. Could I ask the question again?
Court: No, you can't ask the question — oh, you want him to ask the question?
Dr. Pina: Yes, sir.
Court: Go ahead.
State: Doctor, do you know if F.T. has been consistent in her story to different people she has spoken to that you know of?
Court: Now that, I misunderstood now. Is that what you're relating to?
Defense: That's correct, Your Honor.
Court: That gets into truthfulness, sir. I'm going to sustain the objection.
Defense: No further questions.Reviewing this record, it is clear that Trevino did not obtain an adverse ruling on his objections. See Moff v. State, 131 S.W.3d 485, 489 (Tex.Crim.App. 2004) (explaining that "the complaining party must have obtained an adverse ruling from the trial judge, or objected to the judge's refusal to rule, to preserve error in the admission of the evidence"). After the State asked Dr. Pina about consistency in F.T.'s story, Trevino objected, and the trial court overruled the objection. However, because Dr. Pina asked for the question to be repeated, the State asked the same question again. Before Dr. Pina could answer, the trial court reconsidered and sustained Trevino's objection. Thus, Trevino did not obtain an adverse ruling, nor did he move for a mistrial. As such, he failed to preserve error for appeal. See Tex.R.App.P. 33.1(a); Moff, 131 S.W.3d at 489; Martinez v. State, 98 S.W.3d 189, 193 (Tex.Crim.App. 2003). Trevino also argues that the trial court erred in allowing "the State to present an expert witness to testify concerning the dynamics of child sexual abuse." However, the record shows that when the State moved to have Dr. Pina declared an expert in the area of child psychology, defense counsel stated, "Your Honor, I have no objection to that." As such, Trevino failed to preserve error for appeal. See Tex.R.App.P. 33.1. Likewise, Trevino argues that Dr. Pina's testimony was inadmissible because it was prejudicial and inflammatory in nature. However, Trevino never objected on those grounds at trial. Thus, the issue is waived. Id.
Lesser-Included Offense
In his final issue, Trevino argues that the State is bound by the allegations found in the indictment and must prove those allegations. Here, the indictment alleges that Trevino was charged with sexual assault of a child by causing the penetration of F.T.'s sexual organ by his mouth and tongue. The jury, however, did not convict him on this charge; instead, it convicted him of attempted sexual assault of a child "by means of attempting to penetrate his mouth or tongue into the sexual organ of F.T.," a lesser-included offense which had been submitted to the jury at the State's request. Trevino argues that the State is bound by the allegations in the indictment, and as such, Trevino could not be convicted of the lesser-included offense not charged in the indictment. And, according to Trevino, because there was no evidence of penetration presented at trial, the evidence was legally insufficient to support a conviction for sexual assault of a child, the crime alleged in the indictment. In Hampton v. State, 109 S.W.3d 437, 439 (Tex.Crim.App. 2003), the court of criminal appeals addressed when the State is entitled to a jury instruction on a lesser-included offense. In Hampton, the indictment alleged that the defendant had committed aggravated sexual assault. Id. at 438. The jury instead convicted him of sexual assault, a lesser-included offense, which had been submitted to the jury at the State's request. Id. On appeal, the appellant argued that the trial court erred in instructing the jury on the lesser-included offense. Id. at 439. In determining whether the trial court erred, the court applied a two-prong test:We have held that a two-prong test must be met before a jury charge instruction on a lesser-included offense must be given: (1) the lesser-included offense must be included within the proof necessary to establish the offense charged; and (2) some evidence must exist in the record that if the defendant is guilty, he is guilty only of the lesser offense.Id. at 440. Both prongs of the test must be met, regardless of whether submission of the lesser-included offense is requested by the defendant or the State. Id. Here, the first prong is satisfied because attempted sexual assault of a child is within the proof necessary to establish sexual assault of a child. Pursuant to article 37.09(4) of the Texas Code of Criminal Procedure, an offense is a lesser-included offense if "it consists of an attempt to commit the offense charged." Tex. Code Crim. Proc. Ann. art. 37.09(4) (Vernon 1981); Braun v. State, No. 05-03-01526-CR, 2004 WL 2802506, at *5 (Tex.App.-Dallas 2004, pet. ref'd) (holding that attempted sexual assault is lesser-included offense of sexual assault). With regard to the second prong, we must consider "whether there is some evidence that would permit a rational jury to find that the defendant is guilty only of the lesser offense, i.e. there must be some evidence from which a jury could rationally acquit the defendant of the greater offense while convicting him of the lesser." Hampton, 109 S.W.3d at 440. The second prong is satisfied here as well. At trial, there was some evidence that Trevino did not penetrate F.T.'s "female sexual organ" as charged in the indictment. Thus, there was some evidence from which a jury could rationally acquit Trevino of sexual assault as charged in the indictment. And, F.T. testified that Trevino lowered her pants and then kissed and licked her private parts. F.T.'s mother corroborated F.T.'s testimony. As such, there is also some evidence that would permit a rational jury to find that Trevino was guilty only of the lesser-included offense. Having concluded that the trial court properly allowed a jury instruction on the lesser-included offense of attempted sexual assault, we now consider whether evidence was legally sufficient to support Trevino's conviction of attempted sexual assault of a child. When conducting a legal sufficiency-of-the-evidence review as prescribed by Jackson v. Virginia, 443 U.S. 307, 319 (1979), we do not weigh the evidence tending to establish guilt against the evidence tending to establish innocence, nor do we assess the credibility of witnesses on each side. Ex parte Elizondo, 947 S.W.2d 202, 205 (Tex.Crim.App. 1996). We view the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319; Mosley v. State, 983 S.W.2d 249, 254 (Tex.Crim.App. 1998). A person commits the offense of attempted sexual assault of a child younger than seventeen years if, with the specific intent to intentionally or knowingly causes the penetration of the sexual organ of that child by any means, does an act amounting to more than mere preparation that tends but fails to effect the commission of the intended offense. See Tex. Pen. Code Ann. §§ 15.01(a), 22.011(a)(2)(A) (Vernon 2003). The testimony of a child sexual abuse victim alone is sufficient to support a conviction for attempted sexual assault. See Tex. Code Crim. Proc. Ann. art. 38.07 (Vernon 2005) (requirement that victim inform another person of alleged sexual offense does not apply if the victim was seventeen years or younger at time of alleged offense). And, courts give wide latitude to testimony given by a child victim of sexual abuse. See Villalon v. State, 791 S.W.2d 130, 134 (Tex.Crim.App. 1990). The victim's description of what happened need not be precise, nor is the victim expected to express herself at that same level of sophistication as an adult. See id. Moreover, there is no requirement that the victim's testimony of sexual penetration be corroborated by medical or physical evidence. Kemple v. State, 725 S.W.2d 483, 485 (Tex.App.-Corpus Christi 1987, no pet.). At trial, F.T. testified about one of the visits she had with her father:
I was asleep. I was laying down, and he would get on top of me. . . . He would go ahead and lower my pants. He would lick my bottom. . . . The front. Sometimes the back . . . it would hurt very much because I was raw or sore. . . . I told [my mother] that he had hurt me, and I was sore, and I couldn't sit down.F.T.'s testimony was corroborated by her mother, who testified that during one weekend in June of 2001, F.T. refused to stay with her father, Trevino, explaining that Trevino "was kissing [her] intimate parts below" and that he would "get on top of [F.T.], he would kiss her on the mouth, on the lips." Accordingly, viewing the evidence in the light most favorable to the verdict, we hold that the evidence is legally sufficient.