Diaz v. State

Full title: ALEXANDRO A. DIAZ, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, First District, Houston

Date published: May 27, 2010

Nos. 01-07-00943-CR, 01-07-00944-CR (Tex. App. May. 27, 2010)

Opinion

Nos. 01-07-00943-CR, 01-07-00944-CR

Opinion issued May 27, 2010. DO NOT PUBLISH. TEX. R. APP. P. 47.2(b).

On Appeal from the 248th District Court, Harris County, Texas, Trial Court Cause Nos. 1094476 and 1009574.

Panel consists of Chief Justice RADACK and Justices BLAND and SHARP.

MEMORANDUM OPINION

JIM SHARP, Justice.

Appellant Alexandro A. Diaz was placed on three years deferred adjudication community supervision in 2005 for delivery of cocaine in a drug-free zone.¹ In 2007, he was charged with indecency with a child² and a motion to adjudicate his guilt in the delivery of cocaine cause was filed. A jury convicted him of indecency with a child and assessed his punishment at three years in prison. The following day, the trial court adjudicated appellant's guilt in the delivery of cocaine cause, revoked his community supervision, and sentenced him to seven years in prison, to run consecutively to the three-year sentence. We determine (1) whether the evidence is legally and factually sufficient to support appellant's conviction for indecency with a child, (2) whether the trial court reversibly erred in admitting a statement by appellant's mother at punishment, and (3) whether appellant received ineffective assistance of counsel at his motion to adjudicate hearing.

1 More than one gram but less than four grams. Trial court cause number 1009574; appellate court cause number 01-07-00944-CR. See TEX. HEALTH SAFETY CODE ANN. §§ 481.112(a), (c), 481.102, 481.134 (Vernon Supp. 2009).

2 Trial court cause number 1094476; appellate court cause number 01-07-00943-CR. See TEX. PENAL CODE ANN. § 21.11(a)(1), (c)(1) (Vernon Supp. 2009).

BACKGROUND

During the time that appellant was on deferred adjudication for delivery of cocaine, M.B., the seven-year-old complainant, went to spend the night with her 10-year-old cousin at the cousin's grandmother's house. M.B. called her cousin's grandmother "Grandma Mary" although she was not actually a blood relative. Grandma Mary is appellant's mother. According to the complainant, during that visit, while Grandma Mary and M.B.'s cousin were in another room, appellant picked up M.B., sat her on his lap, and put his hand into her shorts, touching her "middle part" outside her underwear. M.B. was scared but laughed so as not to be "rude," and told appellant to stop. Appellant took his hand out then repeated the gesture. M.B. "scooted away" because she "didn't like it." M.B. did not tell anyone that day because she was "scared," but later, when invited for another sleepover at Grandma Mary's house, she told her mother that she did not want to go. A few months later, after M.B heard her mother discussing appellant with her aunt, she told her mother, in the presence of others, that appellant had "touched" her "in her private part." An examination at the hospital the next day revealed no physical evidence of sexual assault. M.B. was also interviewed on video at the Child Assessment Center. At the trial for the indecency with a child charge, M.B., her mother, and the police officer to whom the incident had been reported testified and the videotaped interview was admitted into evidence. There were some inconsistencies between M.B.'s testimony at trial and her statements in the videotaped interview. Appellant did not present any evidence. At punishment, the State called appellant's community supervision officer and a psychologist from the Children's Assessment Center. Appellant called Grandma Mary, a social worker, a minister, and a teacher who knew appellant, another friend of appellant who vouched for his character and indicated that he would offer appellant a part-time job, and appellant himself. The jury returned a punishment of three years in prison. The day after the verdict on punishment, the trial court held a hearing on the motion to adjudicate the delivery with cocaine cause. Appellant pled true to three violations — committing a new offense, failing to complete his community service hours, and failing to obtain his G.E.D. After adjudicating appellant guilty, the court informed the parties that it had listened to the evidence during the punishment phase of the indecency with a child case just concluded and "of course, will consider all the evidence I've heard." It then asked the parties if there was any additional evidence that they wished it to consider. The State asked the trial court to take judicial notice of the presentence investigation report; the defense asked the court to "remember everything that you heard as to this trial," but offered no further evidence. After hearing arguments — during which the State asked for a fifteen year sentence to run consecutive to the sentence in the indecency with a child cause and appellant asked for the minimum five year sentence to run concurrently — the court assessed punishment at seven years in prison and ordered the sentence to run consecutive to the three year sentence assessed by the jury in the indecency cause.

SUFFICIENCY

In his first two points of error, appellant challenges the legal and factual sufficiency to support his conviction for indecency with a child. Specifically, appellant argues that the evidence is legally and factually insufficient because the complainant was inconsistent in her testimony and not credible and because there was no physical evidence corroborating the complainant's testimony.

A. Standard of Review

1. Legal Sufficiency In assessing legal sufficiency, this Court must consider the entire trial record to determine whether, viewing the evidence in the light most favorable to the verdict, a rational jury could have found beyond a reasonable doubt that the accused committed all essential elements of the offense. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Burden v. State, 55 S.W.3d 608, 612 (Tex. Crim. App. 2001). We must "evaluate all of the evidence in the record, both direct and circumstantial, whether admissible or inadmissible." Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). In conducting a legal-sufficiency review, we do not reevaluate the weight and credibility of the evidence, but ensure only that the jury reached a rational decision. Muniz v. State, 851 S.W.2d 238, 246 (Tex. Crim. App. 1993). It is the function of the trier of fact to resolve any conflict of fact, to weigh any evidence, and to evaluate the credibility of any witnesses. See Dewberry, 4 S.W.3d at 740; Adelman v. State, 828 S.W.2d 418, 421 (Tex. Crim. App. 1992); see also Matson v. State, 819 S.W.2d 839, 843 (Tex. Crim. App. 1991) (quoting Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988)). We therefore resolve any inconsistencies in the evidence in favor of the verdict, Matson, 819 S.W.2d at 843, and "defer to the jury's credibility and weight determinations." Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006).

2. Factual sufficiency

When conducting a factual-sufficiency review, we view all of the evidence in a neutral light to determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Grotti v. State, 273 S.W.3d 273, 283 (Tex. Crim. App. 2008). We will set the verdict aside only if (1) the evidence is so weak that the verdict is clearly wrong and manifestly unjust or (2) the verdict is against the great weight and preponderance of the evidence. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). Under the first prong of Johnson, we cannot conclude that a conviction is "clearly wrong" or "manifestly unjust" simply because, on the quantum of evidence admitted, we would have voted to acquit had we been on the jury. See Watson v. State, 204 S.W.3d 404, 417 (Tex. Crim. App. 2006). Under the second prong of Johnson, we cannot declare that a conflict in the evidence justifies a new trial simply because we disagree with the jury's resolution of that conflict. Id. Before concluding that evidence is factually insufficient to support a verdict under the second prong of Johnson, we must be able to say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury's verdict. Id. In conducting a factual-sufficiency review, we must be cognizant of the fact that a jury has already passed on the facts and avoid substituting our judgment for that of the jury. Lancon v. State, 253 S.W.3d 699, 704-05 (Tex. Crim. App. 2008). The jury is the sole judge of the credibility of the witnesses and the weight to be given their testimony, and may choose to believe all, some, or none of the testimony presented. Id. at 707. We therefore afford almost complete deference to a jury's determination when that decision is based on an evaluation of credibility. Id. at 705. In our review, we also must discuss the evidence that, according to the appellant, most undermines the jury's verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003). We may not find the evidence factually insufficient simply because we disagree with the verdict, but only because the verdict represents a manifest injustice. Watson, 204 S.W.3d at 414.

B. Analysis

Under both of his sufficiency complaints, appellant contends that his conviction should be reversed because the complainant's testimony was inconsistent and not credible, and the State did not produce physical evidence that would corroborate her testimony. Appellant essentially reurges his jury arguments at guilt-innocence regarding the weight to be given to the complainant's testimony and her credibility, citing to inconsistencies in her testimony such as whether or not her shorts had a button, and to reasons for questioning whether she was credible, such as the timing and circumstances of her outcry. It was within the province of the jury to make weight and credibility determinations and we must give deference to the jury's resolution of those issues. Marshall, 210 S.W.3d at 625; Lancon, 253 S.W.3d at 705. A lack of physical evidence does not render the evidence insufficient; the testimony of a child complainant alone is sufficient to support a conviction for indecency with a child. See TEX. CODE CRIM. PROC. ANN. art. 38.07(a), (b)(1) (Vernon 2005); Navarro v. State, 241 S.W.3d 77, 81 (Tex. App.-Houston [1st Dist.] 2007, pet. denied). Reviewing the evidence in the light most favorable to the verdict, we hold that a rational jury could have found the essential elements of the offense beyond a reasonable doubt. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789. Likewise, viewing all of the evidence in a neutral light, we cannot conclude that the proof of guilt was so weak that the verdict was clearly wrong or manifestly unjust, nor is the verdict against the great weight and preponderance of the evidence, see Watson, 204 S.W.3d at 417, and so hold that the jury was rationally justified in finding guilt beyond a reasonable doubt. See Grotti, 273 S.W.3d at 283. We overrule appellant's first and second points of error in the indecency with a child cause.

"BOLSTERING"

In his third point of error, appellant complains that the trial court erred in overruling his objection in the following exchange during the cross-examination of the appellant's mother in the punishment phase of the indecency with a child trial:

[State's Witness]: I mean [M.B.] is such a truth teller that you figure.

[Defense Counsel]: Your honor, I object. She is stating that her [ sic] child is a truth teller.

[Court]: The objection is overruled.

On appeal, appellant complains that his mother's statement was improper bolstering³ of the complainant and that the trial court erred in admitting the statement. Appellant does not explain how, or even contend, that error was harmful, but asks that his conviction be reversed.⁴ The record reveals that a prior statement by appellant's mother at punishment also testified to the truthful nature of the complainant.⁵ Appellant made no objection to this statement. Accordingly, any error in the later admission of his mother's subsequent testimony regarding the complainant's truthfulness is rendered harmless. See Anderson v. State, 717 S.W.2d 622, 628 (Tex. Crim. App. 1986) (holding that admission of inadmissible evidence is render harmless when evidence proving same fact is admitted elsewhere without objection). We note also that there is no evidence in the record that the admittance of such statement had a "substantial and injurious effect or influence in determining the jury's verdict." See King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997); see also TEX. R. APP. P. 44.2(b). The statement occurred at punishment — after the jury had already determined that the complainant was credible and had so indicated by returning a verdict of guilt. Appellant's mother also went on to testify before the jury that she did not think that the complainant "must be telling the truth" in her outcry even though the complainant had been truthful in the past and that she did not believe that any offense had occurred. In the context of the entire punishment hearing and the sentence assessed, ⁶ no harm is shown. We overrule appellant's third point of error in the indecency with a child cause.

INEFFECTIVE ASSISTANCE OF COUNSEL

In his sole point of error pertaining to his delivery of cocaine conviction, appellant asserts that his trial counsel was ineffective at his motion to adjudicate hearing because counsel failed to present any punishment evidence after the trial court adjudicated him guilty.

A. Standard of Review for Contentions of Ineffective Assistance of Counsel

The United States Constitution, the Texas Constitution, and a Texas statute guarantee an accused the right to reasonably effective assistance of counsel. See U.S. CONST. amend. VI; TEX. CONST. art. I, § 10; TEX. CODE CRIM. PROC. ANN. art. 1.051 (Vernon Supp. 2009); Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2063 (1984); Ex parte Gonzales, 945 S.W.2d 830, 835 (Tex. Crim. App. 1997). To prove ineffective assistance of counsel, an appellant must show that (1) trial counsel's representation fell below an objective standard of reasonableness, based on prevailing professional norms, and (2) there is a reasonable probability that the result of the proceeding would have been different but for trial counsel's deficient performance. See Strickland, 466 U.S. at 687-95, 104 S. Ct. at 2064-69; Hernandez v. State, 726 S.W.2d 53, 55-57 (Tex. Crim. App. 1986) (applying Strickland test to review of claim of ineffective assistance of counsel under Texas statutes and constitutional provisions). Under Strickland, the appellant "must prove, by a preponderance of the evidence, that there is, in fact, no plausible professional reason for a specific act or omission." Bone v. State, 77 S.W.3d 828, 836 (Tex. Crim. App. 2002). The appellant must also show a reasonable probability that, but for counsel's error, the result of the proceeding would have been different. Id. at 833. Judicial scrutiny of counsel's performance must be highly deferential, and the defendant must overcome the presumption that, under the circumstances of the case, the challenged action might be considered sound trial strategy. Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. We apply a strong presumption that trial counsel was competent and presume that counsel's actions and decisions were reasonably professional and motivated by sound trial strategy. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). In the majority of cases, the record on direct appeal will be insufficient for an appellant to demonstrate deficient performance under the first part of the Strickland standard because the reasonableness of counsel's choices often involves facts not appearing in the appellate record and the record does not adequately reflect the motives behind trial counsel's actions. Rylander v. State, 101 S.W.3d 107, 110-11 (Tex. Crim. App. 2003).

B. Analysis

In this point of error, appellant contends that his trial counsel was ineffective at his motion to adjudicate hearing because counsel did not call witnesses to testify or otherwise put on mitigating evidence at the motion to adjudicate hearing after the trial court adjudicated him guilty. We note that the trial court twice⁷ informed the parties that it would consider at the motion to adjudicate hearing all evidence admitted at the punishment phase of the indecency with a child case — presumably to indicate to the parties that there was no need to repeat the punishment evidence at the motion to adjudicate hearing. Thus all of the testimony offered at the punishment phase of the indecency with a child case was before the trial court for its consideration prior to assessing the sentence in the delivery of cocaine case. This was sufficient to meet the requirement that appellant have an opportunity to present mitigating evidence prior to sentencing. See Hardeman v. State, 1 S.W.3d 689, 691 (Tex. Crim. App. 1999) (holding that appellant must have opportunity to present evidence of mitigation, but it is "immaterial that the presentation of the evidence [of mitigation] occurred before the actual words of adjudication."). Appellant argues that trial counsel could have called him and his mother to testify at the motion to adjudicate hearing regarding appellant's efforts to complete community service, his completion of two drug programs, and his willingness to attend and complete all sex offender programs. However, the trial court had already heard from appellant and his mother two days earlier regarding his ability and willingness to comply with conditions of community service, her willingness to help him, and his efforts to complete his community service hours. Appellant's mother also testified that she did not know if appellant was doing the programs that he was required to do while on community supervision — therefore she could not have provided testimony regarding either community service hours or the drug programs. Appellant's community supervision officer testified that appellant had completed the two drug programs. Thus all the testimony that appellant argues should have been presented to the trial court at the motion to adjudicate hearing was already before the court. Also before the court were other portions of appellant's testimony and that of his mother that were not helpful to appellant, such as statements from appellant that he did not want probation as he was not clear that it could help him and that he could not see the benefits of being on probation, and a statement from his mother that she had allowed him to claim to the community service department that he was living with her while on community supervision, even though he was actually living elsewhere. Appellant relies on Milburn v. State for his contention that the failure of his trial counsel to call him or his mother to testify at the motion to adjudicate was ineffective. See Milburn v. State, 15 S.W.3d 267 (Tex. App.-Houston [14th Dist.] 2000, pet. ref'd). However, Milburn involved a jury trial where the trial counsel presented no witnesses for the jury's consideration despite their availability to testify and present favorable evidence and counsel had wholly failed to investigate or evaluate potential favorable witness testimony. Id. at 269-70. Thus, in Milburn, because of counsel's lack of preparation, the jury had nothing before it to counter the State's negative punishment testimony. In the case before us, trial counsel actually presented testimony to the trial court on the very matters that appellant now asserts should have been presented, and the trial court took such evidence into consideration. This case is not like Milburn — trial counsel clearly investigated, evaluated witnesses, and presented their favorable testimony before the court for its consideration. While counsel did not actually recall the witnesses to repeat their testimony two days later, such action does not clearly fall below an objective standard of reasonableness under the circumstances of this case where the trial court had already affirmatively stated that it was considering such evidence in its decision on the motion to adjudicate. If trial counsel had put the witnesses on the stand a second time and required the trial court to listen to a repeat of the testimony it had just heard, in spite of the court's statement that it would consider such evidence, such action might have been viewed adversely by the court and had negative consequences for appellant. It also would have opened the door to further damaging statements from both witnesses unnecessarily as the favorable evidence they could have offered was already before the trial court. There is also no evidence in the record that, had trial counsel put appellant and his mother back on the stand to repeat their prior testimony, the trial court would have likely assessed a lower sentence. We hold that neither prong of Strickland has been met, and we overrule appellant's sole point of error in his delivery of cocaine cause.

Conclusion

We affirm the judgments of the trial court in each cause number.