Nos. 01-06-00078-CR, 01-06-00079-CR
Opinion issued April 19, 2007. DO NOT PUBLISH. Tex. R. App. P. 47.2(b).
On Appeal from the 262nd District Court Harris County, Texas, Trial Court Cause Nos. 1028880 1028881.
Panel consists of Justices NUCHIA, KEYES, and HIGLEY.
SAM NUCHIA, Justice.
Appellant, Julio Rivas, was charged by two indictments with sexual assault of a child. A jury found appellant guilty as charged in each indictment and assessed punishment at confinement for 50 years. The trial court ordered that the sentences were to run cumulatively. On appeal, appellant complains that he received ineffective assistance of counsel. We affirm.
BACKGROUND
Appellant came to Texas in 1994, leaving his pregnant wife and two-year-old daughter (the complainant) in Nicaragua. Appellant's wife joined him in 1995, and the two children stayed with their maternal grandmother in Nicaragua. Appellant and his wife separated in 1999, and the children came to Texas in 2000. After living with appellant for about two months, they began living with their mother and stayed with appellant on weekends. The complainant was eight years old when she first came to Texas and was 13 years old at the time of trial. She testified that appellant began to touch her inappropriately two or three weeks after she began living with him. She testified that the inappropriate touching continued after she was with appellant only on weekends and that the touching progressed to oral sex. She testified that this would occur in the bed where she and her younger brother slept with appellant or in the living room. She said that, on one occasion, appellant carried her into the living room, removed her clothes and his, and began kissing her on the neck. He performed oral sex on her and then told her to do the same to him. She used dolls to show their positions, and she described his ejaculation. She said that he then told her to go clean herself. The complainant described another occasion when appellant took her and her brother to Galveston in a van. They spent the night on the beach in the van. She testified that appellant gave her brother a pill, and her brother fell asleep. Appellant then performed oral sex on her. She stated that he tried to penetrate her sexual organ with his, but she complained about the pain and he stopped. He proposed anal sex, but she refused. The complainant further testified about one time when she was in the fourth or fifth grade that appellant picked her up from school and took her to a night club where he worked. She stated that it was during the daytime and that no one else was in the club. She testified that appellant put her on the pool table and performed oral sex on her. She testified that, when she was about 11 years old, there was a period of several months in which she did not see appellant. The next time she saw him, he approached her, and she refused to let him touch her. She said that he did not touch her after that incident. The complainant testified that when she was 12 years old, she had sexual relations on two occasions with her 16-year-old boyfriend. On the second occasion, she began crying because she started remembering what appellant had done to her. Her boyfriend told her that she had to tell her mother. As a result of the complainant's disclosure to her mother, the Department of Family and Protective Services (DFPS) became involved. The complainant was interviewed at the Children's Assessment Center by Lisa Holcomb, a forensic interviewer. About six weeks later, appellant was interviewed by Tim Hagerty, a bilingual investigative caseworker for DFPS. Both Holcomb and Hagerty testified at the trial regarding the content of these interviews. In a single point of error, appellant complains that he received ineffective assistance of counsel during his trial. Appellant explicitly does not challenge the sufficiency of the evidence. DISCUSSION
Standard of Review The standard of review for evaluating claims of ineffective assistance of counsel is set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, (1984). Appellant must show that (1) counsel's performance was so deficient that he was not functioning as acceptable counsel under the Sixth Amendment, and (2) but for the counsel's error, there is a reasonable probability that the result of the proceedings would have been different. Strickland, 466 U.S. at 687, 694, 104 S. Ct. at 2064, 2068; Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App. 1999); Hernandez v. State, 726 S.W.2d 53, 55 (Tex.Crim.App. 1986); Gamble v. State, 916 S.W.2d 92, 93 (Tex.App.-Houston [1st Dist.] 1996, no pet.). A reviewing court is not required to consider these two components in any particular order. Strickland, 466 U.S. at 697, 104 S. Ct. at 2069. If the reviewing court can dispose of the claim of ineffectiveness on the ground that there is an insufficient showing of prejudice, the court may do so without reaching the issue of counsel's performance. Id. It is the defendant's burden to prove ineffective assistance of counsel. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Gamble, 916 S.W.2d at 93. The defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. See Strickland, 466 U.S. at 689, 104 S. Ct. at 2065; Thompson, 9 S.W.3d at 813; Gamble, 916 S.W.2d at 93. Appellant's Claims
Appellant asserts the following seven specific complaints regarding his trial counsel's performance. 1. Trial counsel did not use a peremptory strike on an objectionable venireperson. Venireperson number 31 was a deputy with the Harris County Sheriff's Office. He was seated on the jury. When the trial court asked if there was any objection to the jury as selected, appellant's counsel stated that he had intended to strike number 31. Counsel did not specifically state that he objected to the jury. After some discussion, during which counsel stated that failing to strike number 31 was a mistake, the trial court declared that the jury would remain seated. Appellant does not direct us to any evidence in the record to show that venireperson number 31 was biased or would refuse to consider the evidence in deliberations. 2. Trial counsel did not preserve error after challenging a venireperson for cause. During voir dire, venireperson number 1 said that she had been sexually abused as a child and did not "know if I would be biased or not." She also said that she "probably would be biased." When asked by the trial court if she would base a conviction on something other than the evidence, she answered, "No." Appellant's counsel challenged number 1 for cause, and the trial court denied the challenge. Appellant's counsel exercised a peremptory strike on number 1, but did not request an additional strike to replace the one used on her. Thus, counsel did not preserve a complaint regarding his use of a peremptory strike on venireperson number 1. On appeal, appellant does not claim that any juror, except for venireperson number 31, should have been struck from the jury. 3. Trial counsel did not challenge the admissibility of appellant's written and oral statements to the DFPS investigator. During his interview with Hagerty, appellant first denied the complainant's allegations, then said he could not remember, and finally admitted that he had committed the acts complained of, although he said he did them only once. He wrote a statement in Spanish, which said, as translated by Hagerty, "I Julio Rivas accept having touched my daughter [C] having kissed her and touched her part and kissed and also I accept having tried to get her to touch my part. This happened one time but I accept what she says." Both the original written statement and the English translation were admitted into evidence. Appellant's trial counsel objected that there was no foundation to show that Hagerty was a certified translator. Appellant complains on appeal that counsel did not file a motion to suppress the confession, did not discuss the issue of the statements during voir dire, and did not object to the testimony regarding the oral and written statements. The only basis argued by appellant for excluding these statements was that they were involuntary. 4. Trial counsel did not request a jury instruction regarding the voluntariness of appellant's statements to Hagerty. At trial, when asked if Hagerty had intimidated or threatened him, appellant responded, "Several times. . . . He told me if I do not take what he was telling me I would go to jail and I was not going to see my daughter again." Appellant testified that the video of the interview, which was not offered into evidence by appellant or the State, did not show Hagerty's threat and speculated that the video had been erased or cut. Appellant testified that he felt intimidated by the presence of two police officers: one at the building entrance and one in a room. Appellant's testimony was controverted by Hagerty, who stated that he did not threaten appellant and that there were no police officers in the interview room. Appellant argues that, although he had a right to a hearing, before the statement was admitted into evidence, to determine the voluntariness of the confession, that right was waived by counsel's failure to object to the confession's admission. Appellant further argues that he was entitled to a charge to the jury on the issue of voluntariness, but that counsel did not request such a charge. 5. Trial counsel did not object properly to testimony of unadjudicated offenses against the complainant and his ex-wife. The State elicited, without objection, the testimony of the complainant about multiple occasions on which she was sexually assaulted by appellant. The State had given notice that it would introduce such evidence in its case in chief to show the state of mind of appellant and the complainant and the previous and subsequent relationship between appellant and the complainant. The State also elicited, without prior notice to appellant, testimony from appellant's ex-wife regarding sexual relations between her and appellant. When the prosecutor asked, "As a husband, did he request sex?", the following exchange occurred: [APPELLANT'S COUNSEL]: Your Honor, is this relevant? This trial is not about husband and wife." THE COURT: Is that an objection? It is overruled. Let's make a proper legal objection. . . . [APPELLANT'S COUNSEL]: Yes, Your Honor. [PROSECUTOR]: What sort of sex drive did Julio have? [APPELLANT'S COUNSEL]: Your Honor, I would object again. THE COURT: Overruled. The State then questioned her regarding the nature and frequency of the sexual acts performed. On cross-examination, appellant's counsel elicited testimony from appellant's ex-wife that appellant forced her to engage in sexual acts that she did not enjoy and to which she objected. Appellant does not contend that the elicited testimony was irrelevant, only that it was prejudicial. Appellant does not attempt to show that it was unfairly prejudicial. See Tex. R. Evid. 403 (providing for the exclusion of relevant evidence on ground that it is unfairly prejudicial). 6. Trial counsel failed to request that the State elect which offense it would rely on for conviction in each of the causes. Each of the indictments alleged a single sex act. Appellant contends that the State presented evidence of more than the two acts alleged in the indictments and complains that appellant's counsel did not request that the State elect which offenses it relied on for conviction. Appellant asserts that "counsel's failure to request an election implicates appellant's constitutional right to a unanimous jury verdict." Although the complainant testified generally about the nature and frequency of the sexual assaults, she testified about only one instance of the offense specified in the indictment for cause number 1028880. Therefore, for that offense, there was nothing to elect. The complainant testified about three instances of the offense specified in the indictment for cause number 1028881, but in its closing argument, the State referenced only the offense that occurred in the night club. Arguably, the State should have made an election among these offenses. However, on appeal, appellant does not contend that such an election would have probably caused a different result. 7. Trial counsel did not object to hearsay testimony regarding the complainant's out-of-court statements and did not object to the lack of a reliability hearing as required under article 38.072 of the Code of Criminal Procedure. Under article 38.072, the hearsay statements of a child abuse victim, if the abuse was committed against a child 12 years of age or younger, may be admitted into evidence if certain requirements are met, including a finding by the trial court, "in a hearing conducted outside the presence of the jury, that the statement is reliable based on the time, content, and circumstances of the statement." Tex. Code Crim. Proc. Ann. art. 38.072 (b)(2) (Vernon 2005). Appellant argues that, because trial counsel did not request such a hearing, he waived this error. When Holcomb was asked to testify regarding the complainant's statement, trial counsel's objection, "Your Honor, object to hearsay" was overruled. This objection was sufficient to preserve appellant's complaint regarding the admission of the complainant's out-of-court statement to Holcomb. See Long v. State, 800 S.W.2d 545, 548 (Tex.Crim.App. 1990) (holding that objection to hearsay was sufficient to preserve complaint regarding admission of child victim's outcry statement). Because appellant objected to the hearsay testimony, the State had the burden to show that the evidence was admissible under article 38.072 or some other exception to the hearsay rule. Id.; see also Hayden v. State, 928 S.W.2d 229, 231 (Tex.App.-Houston [14th Dist.] 1996, pet. ref'd) ("The burden is on the state as the proponent of the hearsay evidence to establish compliance with the mandatory provisions of article 38.072 in order for the testimony to be rendered admissible."). Thus, appellant's trial counsel did not waive error regarding the hearsay testimony of Holcomb. Appellant, however, has not urged this hearsay complaint on appeal. CONCLUSION
Although appellant cites case law to support his contention that each of trial counsel's purported omissions is reversible error, he does not argue that, but for trial counsel's errors, there is a reasonable probability that the result of the trial would have been different. Appellant merely states that the appellate record "is sufficient for this court to make a decision on the merits." Furthermore, appellant does not direct us to any evidence in the record to rebut the presumption that trial counsel's actions were sound trial strategy. Because appellant has made no showing regarding the second component of the Strickland standard, we overrule his sole point of error. Accordingly, we affirm the judgment.