Opinion
No. 05-03-01116-CR
Filed March 24, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 194th Judicial District Court Dallas County, Texas, Trial Court Cause No. F02-34972-JM. Affirmed.
Before Justices MOSELEY, BRIDGES, and FRANCIS.
OPINION
A jury convicted Brett Jonathan Bednarek of aggravated sexual assault of a child under the age of fourteen and assessed punishment at ninety-nine years in prison. In seven points of error, appellant complains about the legal and factual sufficiency of the evidence to support his conviction, the exclusion of certain evidence, improper closing argument, and ineffective assistance of counsel at trial. We overrule all points of error and affirm the trial court's judgment. On the morning of April 17, 1999, Leticia Ryno awakened to find her three-year-old daughter, Cristy, missing from her Irving apartment. Cristy was last seen at about 1 a.m., sleeping on a couch in the dining area. Ryno called the police, who searched for Cristy. Four days later, two fishermen found Cristy's nude, decomposing body floating in the Trinity River. According to the medical examiner, Cristy died within four to six hours of her last meal, which was at about 10 p.m. April 16. Although an examination showed no injuries or trauma to the body, the medical examiner reported that Cristy died of "homicidal violence," possibly smothering, strangulation, or drowning. Semen was found in the child's vaginal cavity. More than two years later, DNA evidence showed the semen was appellant's. Appellant had been involved with Ryno's roommate, Samantha Frederick, and had been to the Ryno apartment on several occasions in the weeks preceding Cristy's disappearance. In his third and fourth points of error, appellant argues the evidence is legally and factually insufficient to prove that he "penetrated the female sexual organ of Cristy Ryno as alleged in the indictment." The standards of reviewing the legal and factual sufficiency of the evidence are well-established. See Jackson v. Virginia, 443 U.S. 307, 319 (1979) (legal sufficiency); Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex.Crim.App. 2004) (factual sufficiency). To obtain appellant's conviction in this case, the State had to prove appellant intentionally or knowingly caused the contact or penetration of the female sexual organ of Cristy Ryno, a child younger than fourteen and not his spouse. See Tex. Pen. Code Ann. § 22.021(a)(1)(B) (Vernon Supp. 2004-05). Proof of even the slightest penetration of the complainant's sexual organ is sufficient to sustain appellant's conviction. See Nilsson v. State, 477 S.W.2d 592, 595 (Tex.Crim.App. 1972); Malone v. State, 935 S.W.2d 433, 439 (Tex.App.-Tyler 1996, no pet.). Evidence at trial was both legally and factually sufficient to prove that appellant penetrated the child's sexual organ. To begin with, appellant's semen was found inside the child's vaginal cavity. Dr. Jeffrey Barnard, the Dallas County medical examiner, testified that semen inside a vaginal cavity is indicative of sexual assault. Second, Dr. Jamye Coffman, director of the child abuse unit at Cook Children's Medical Center, testified the legal definition of penetration was "anything beyond the labia majora." She testified that for semen to get in the vagina, there would have to be penetration at least to the opening of the vagina. Finally, Dr. Coffman testified that there is not always trauma when a child has been penetrated, and in fact, said there usually is no evidence that a sexual assault has occurred. Despite this evidence, appellant argues that because there was no evidence of trauma to the vagina, there cannot be evidence, beyond a reasonable doubt, of penetration or contact. He argues that scientific principles and "common sense" dictate that a "small female child whose vagina has been penetrated by a grown man's penis is going to show some signs of trauma." Absent a mistake or contamination in the DNA testing process, appellant offers three ways for semen to be in the child's vagina without penetration: (1) appellant masturbated and ejaculated and then put his finger inside the child (which would not be aggravated sexual assault as indicted); (2) the child urinated on a bed in such a way as to "reconstitute" old semen on the sheet, and the seminal fluid entered her body; and (3) appellant ejaculated into a condom when having sex with Samantha (Ryno's roommate), Samantha's boyfriend found the condom, and out of revenge, abducted Cristy and put the semen inside her to frame appellant. These theories, however, have no basis in the evidence presented at trial. According to the evidence, there was more than a minute amount of semen found in the child's vaginal cavity. Moreover, Samantha testified that she never had sex with appellant at the apartment, so there is no source for appellant's semen either on bed sheets, the couch, or in a condom at the apartment. Considering the evidence under the appropriate standards of review, we conclude the evidence was legally and factually sufficient to establish, beyond a reasonable doubt, that appellant penetrated the child's sexual organ. Accordingly, we overrule the third and fourth points of error. In his first and second points of error, appellant argues reversal is required because the State failed to prove that Dallas County was the proper venue for this offense. In particular, he argues there was no evidence as to where Cristy was sexually assaulted. It is presumed that venue is proven in the trial court unless the record affirmatively shows otherwise or venue was made an issue at trial. Tex.R.App.P. 44.2(c)(1). Appellant does not point us to a place in the record where he disputed venue nor did our review of the record reflect any such objection. To the extent he seeks to rely on his plea of not guilty to raise the issue, he is incorrect. See Holdridge v. State, 707 S.W.2d 18, 20-21 (Tex.Crim.App. 1986) (per curiam). Because appellant failed to dispute venue before the trial court and the record does not affirmatively refute proper venue, we presume valid venue. See Tex.R.App.P. 44.2(c)(1). We overrule the first and second points of error. In his fifth point of error, appellant argues the trial court abused its discretion in excluding the testimony of two witnesses, Teena Klinger and Jeff Gouge, concerning statements made to them by Steven Silversmith. He argues the evidence was admissible as statements against Silversmith's penal interests as provided in evidentiary rule 803(24). Rule 803(24) provides an exception to the rule against hearsay statements as follows: Statement Against Interest. A statement which was at the time of its making so far . . . tended to subject the declarant to . . . criminal liability . . . that a reasonable person in declarant's position would not have made the statement unless believing it to be true. In criminal cases, a statement tending to expose the declarant to criminal liability is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement. Tex. R. Evid. 803(24). Any determination regarding the admissibility of a statement in accordance with rule 803(24) requires a two-step inquiry. First, the trial court must determine whether the statement in question tends to expose the declarant to criminal liability. Bingham v. State, 987 S.W.2d 54, 57 (Tex.Crim.App. 1999). Second, the trial court must determine if there are corroborating circumstances that clearly indicate the trustworthiness of the statement. Id. We review a trial court's decision to admit or exclude evidence of a hearsay statement under rule 803(24) under an abuse of discretion standard. Id. After reviewing the statements, we conclude the evidence did not show that either statement would expose Silversmith to criminal liability. At the time of Cristi's disappearance, Silversmith and his girlfriend, Samantha Frederick, lived in an apartment with Leticia Ryno, Ryno's boyfriend, and Ryno's two children, Cristy and Tiffany. In a hearing outside the presence of the jury, Klinger testified that Silversmith was her stepbrother. She testified that after Cristy disappeared, she and Silversmith were driving around and he directed her to a park near the Trinity River. Silversmith began crying and told her that was the place that Cristy had been murdered. According to Klinger, Silversmith wanted to get out of the car and look for evidence but he did not. Klinger could not say with any certainty whether this event happened before or after Cristy's body was discovered. We cannot conclude Silversmith's alleged statements to Klinger would expose him to criminal liability in light of the fact that Klinger could not say whether the statements were made before Cristy's body was found. If the statements were made after Cristy's body was found, then Silversmith could have gotten his information from the media coverage of the event. Under these circumstances, we cannot conclude the trial court abused its discretion in excluding this evidence. At the same hearing, Gouge testified that he had known Silversmith for about two years in 1999. He testified that the day before Cristy's body was found, Silversmith visited him at his apartment. The following testimony was developed:
[DEFENSE ATTORNEY]: Okay. So April 20th Mr. Silversmith comes over to your apartment, and it's yourself and who else?
[GOUGE]: Shane Loftis.
[DEFENSE ATTORNEY]: And what happened — what happened? I mean, does — does he knock on the door? Does he walk in?
[GOUGE]: He knocks on the door and I was in my bed — in my bedroom laying on my bed. And Shane answered the door. And Steve comes right in and comes back to my room and looks right at me and goes, you're next. And I said, what's going on. He goes, oh, I'm just kidding for now. And he goes, we're passing out fliers for Cristy. And they had — there was a baby down Williamson County that had just been found. I said, hey, you think that baby in Williamson County is Cristy's. And he goes, no, they'll find her body in the Trinity. I said, what do you mean. He goes, well, no one really knows, but that's where they'll find it.
[DEFENSE ATTORNEY]: Did he lead you to believe that her body had already been found?
[GOUGE]: That's the way it came across to me.
[DEFENSE ATTORNEY]: What do you mean by that?
[GOUGE]: Well, I mean, how would anybody know where it was unless they placed it there? It didn't occur to me at the time, but the next day I saw it on the news they had found the body in the Trinity, and I was thinking — the story was from some people around that it was the press — you know, they were just holding it back from the family. That's what Steve had said, they're holding it back from the press for the families and stuff.
[DEFENSE ATTORNEY]: Okay. What do you mean by that? You need to be more clear what to mean by that.
[GOUGE]: He said that they've known about it. He told us they knew about it for a few days and they hadn't told the public because of family members and stuff like that.
[DEFENSE ATTORNEY]: He said they knew about what?
[GOUGE]: Before the body — where Cristy's body was.
[DEFENSE ATTORNEY]: Who — who knew?
[GOUGE]: The police.
[DEFENSE ATTORNEY]: Okay. The police knew where the body was, and what else? They were holding back from the public?
[GOUGE]: Yeah.
[DEFENSE ATTORNEY]: And where was the body? What did he say?
[GOUGE]: He said they'd find her body in the Trinity. And the very next day on the news I saw they found the body in the Trinity.On cross-examination, the prosecutor handed Gouge the written statement he gave to police and asked him to refresh his memory. Gouge then testified that Silversmith "said that they had found the body in the Trinity." Gouge testified that Silversmith's comment was made "[a]s a statement of fact, that the police already knew about it, they've known about for several days. They just weren't releasing it because of friends and family." Gouge testified that Silversmith did not say how he knew this information. The following day when Cristy's body was found, Gouge e-mailed Channel 8 news. Having reviewed this testimony, it appears that Gouge testified that Silversmith told him one of two things: (1) that Cristy's body would be found in the Trinity River or (2) Cristy's body had been found by the police who were withholding the information. While Gouge was certain in his testimony that Silversmith made one of these statements before Cristy was found, we cannot conclude either statement would expose Silversmith to criminal liability. Neither was an admission of a crime but was more akin to speculating on where the body would be found or claiming to have inside information from the police on their investigation. Under these circumstances, we conclude the trial court did not abuse its discretion in excluding Gouge's testimony. We overrule the fifth point of error. In his sixth point of error, appellant contends the trial court erred by allowing the prosecutor to essentially argue at punishment that he murdered Cristy, when he was charged only with aggravated sexual assault. In his brief, appellant identifies five portions of the prosecutors' arguments as objectionable. However, appellant did not object to any of these arguments. To preserve improper jury argument for appellate review, a defendant must object and pursue the objection to an adverse ruling; otherwise, he forfeits his right to complain about the argument on appeal. See Cockrell v. State, 933 S.W.2d 73, 89 (Tex.Crim.App. 1996) ("Before a defendant will be permitted to complain on appeal about an erroneous jury argument or that an instruction to disregard could not have cured an erroneous jury argument, he will have to show he objected and pursued his objection to an adverse ruling."). Because appellant did not object, he has forfeited his right to complain. We overrule the sixth point of error. In his seventh point of error, appellant contends he was denied effective assistance of counsel when defense counsel failed to object to the prosecutors' punishment argument. Appellant asserts he was not charged with murder, yet the prosecutors "continually made this the focus of their argument." To prevail on his claim, appellant must show by a preponderance of the evidence that (1) trial counsel's performance was deficient in that it fell below the prevailing norms and (2) the deficiency prejudiced appellant; that is, but for the deficiency, there is a reasonable probability that the result of the proceeding would have been different. McFarland v. State, 928 S.W.2d 482, 500 (Tex.Crim.App. 1996) (citing Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1974)). We do not inquire into counsel's strategy unless such a strategy does not have a plausible basis. Johnson v. State, 614 S.W.2d 148, 152 (Tex.Crim.App. [Panel Op.] 1981). The record must be sufficiently developed to overcome the strong presumption that counsel provided reasonable assistance. Thompson v. State, 9 S.W.3d 808, 813-14 (Tex.Crim.App. 1999). In most cases, a silent record which provides no explanation for counsel's actions will not overcome this strong presumption. See Rylander v. State, 101 S.W.3d 107, 110-11 (Tex.Crim.App. 2003); Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002); Thompson, 9 S.W.3d at 813-14. Here, the record provides no explanation for counsel's actions and therefore does not overcome the strong presumption of reasonable assistance. Thompson, 9 S.W.3d at 813-14. Appellant has not met the first prong of Strickland in this case because he has not shown counsel's performance was deficient. We overrule the seventh point of error. We affirm the trial court's judgment.