Summary
holding trial court did not abuse discretion by designating forensic interviewer instead of child's aunt as outcry witness when child told aunt that the defendant kissed her with an open mouth, without panties on, and child answered no when her aunt asked whether he kissed her only on the mouth, pointing to "her part and behind"
Summary of this case from Daniel v. StateOpinion
No. 05-04-00497-CR
Opinion issued August 11, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 291st District Court, Dallas County, Texas, Trial Court Cause No. F02-74026-NU. Affirmed.
Before Justices BRIDGES, RICHTER, and LANG.
OPINION
Isidro Diaz appeals his aggravated sexual assault conviction. A jury convicted appellant and sentenced him to thirty years' confinement. In two issues, appellant argues the trial court erred in allowing certain testimony, and he received ineffective assistance of counsel. We affirm the trial court's judgment. On October 14, 2002, Maria Flores kept her husband's sister's five-year-old daughter, M.S., overnight. The next day, Flores's three-year-old daughter gave her an open-mouth kiss while M.S. was present. Flores told her daughter not to do that and that it was "nasty," and her daughter laughed. M.S. asked if the little girl's father kissed her like that, and Flores said no. Flores asked M.S. who kissed her like that, and she said, "my poppy." Flores asked if he only kissed M.S. on the mouth. M.S. said no and "pointed to her part and behind." M.S. also said he kissed her without panties on. Flores did not ask any further questions because she did not know whether to believe M.S. Flores called Luz Perez, another of her husband's siblings, and told her about the incident. Perez told Nelly Saavedra, M.S.'s mother, who called CPS and took M.S. to the Dallas Children's Advocacy Center. Although Saavedra asked M.S. about the incident, M.S. would not talk about it. At the advocacy center, Alejandra Torres, a forensic interviewer, interviewed M.S.M.S. told Torres appellant had touched her vagina with his tongue while she was coloring on the couch at home. M.S. said it happened more than once. Appellant was subsequently charged with aggravated sexual assault. M.S., six years old at the time of trial, testified that appellant touched her "tail" or "cola" with his tongue three times. She explained that her "tail" or "cola" is where she "tinkles." A jury convicted appellant, and this appeal followed. In his first issue, appellant argues the trial court erred in allowing Torres to testify as the outcry witness. Specifically, appellant contends that Flores was the proper person to identify as the outcry witness. Article 38.072 of the Texas Code of Criminal Procedure allows admission of certain hearsay testimony in the prosecution of offenses committed against children twelve years of age and younger. See Tex. Code Crim. Proc. Ann. art. 38.072 (Vernon 2005). The outcry statute applies only to statements made (1) by the child against whom the offense was allegedly committed and (2) to the first person, eighteen years of age or older, to whom the child made a statement about the offense. Id. To be a proper outcry statement, the child's statement to the witness must describe the alleged offense in some discernible manner and must be more than a general allusion to sexual abuse. Sims v. State, 12 S.W.3d 499, 500 (Tex.App.-Dallas 1999, pet. ref'd). The trial court has broad discretion in determining the proper outcry witness, and its determination will not be disturbed absent an abuse of discretion. Id. Here, M.S. told Flores her "poppy" kissed her with an open mouth. Flores asked if he only kissed M.S. on the mouth. M.S. said no and "pointed to her part and behind." M.S. also said he kissed her without panties on. Flores did not ask any further questions because she did not know whether to believe M.S. In contrast, M.S. described to Torres exactly how, when, and where appellant touched her vagina with his tongue. M.S. also clearly identified appellant to Torres. The trial court could have reasonably determined that M.S.'s statement to Flores was nothing more than a general allusion that something in the area of sexual abuse was occurring and not a clear description of the offense charged as required by article 38.072. See id. M.S's statements to Torres regarding how, when, and where appellant touched her clearly satisfied the statutory requirements. See id. Accordingly, the trial court did not abuse its discretion in designating Torres as the outcry witness. See id. We overrule appellant's first issue. In his second issue, appellant argues he received ineffective assistance of counsel at the punishment phase of trial when his counsel failed to present evidence that appellant had no prior felony convictions. We evaluate the effectiveness of counsel under the standard enunciated in Strickland v. Washington, 466 U.S. 668 (1984). Hernandez v. State, 988 S.W.2d 770, 770 (Tex.Crim.App. 1999). To prevail on an ineffective assistance of counsel claim, an appellant must show (1) counsel's performance fell below an objective standard of reasonableness, and (2) a reasonable probability exists that, but for trial counsel's errors, the result would have been different. Strickland, 466 U.S. at 687-88, 694. The record must be sufficiently developed to overcome a strong presumption that counsel provided reasonable assistance. Thompson v. State, 9 S.W.3d 808, 813-14 (Tex.Crim.App. 1999). An appellate court looks to the totality of the representation and the particular circumstances of each case in evaluating the effectiveness of counsel. Id. at 813. The record in this case is silent as to trial counsel's strategy in failing to present evidence that appellant had no prior felony convictions. In fact, appellant has failed to point to any evidence that he was actually eligible for probation. Therefore, appellant has failed to rebut the presumption that this was a reasonable decision. See id. at 814. Further, we cannot conclude a reasonable probability exists that, but for trial counsel's failure to act, the result would have been different. See Strickland, 466 U.S. at 687-88, 694. The range of punishment in this case was five to ninety-nine years' confinement, and the jury sentenced appellant to thirty years' confinement, well in excess of the minimum sentence available. Under these circumstances, we cannot conclude appellant received ineffective assistance of counsel. We overrule appellant's second issue. We affirm the trial court's judgment.