No. 05-09-01329-CR
Opinion Filed January 20, 2011. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the Criminal District Court No. 6, Dallas County, Texas, Trial Court Cause No. F06-86682-X.
Before Justices RICHTER, FRANCIS, and MYERS.
Opinion By Justice MYERS.
Appellant, Oscar Renard Robinson, was convicted of aggravated sexual assault of a child and sentenced to thirty years in prison. In two issues, he argues he received ineffective assistance of counsel and the evidence is insufficient to sustain the conviction. We affirm.
Background
D.R. testified that, when he was approximately three or four years old, his father, appellant, came to the Dallas apartment that D.R. shared with his mother, Rebecca Anthony, to watch him while she was busy running errands. D.R. was sitting on a futon in the living room. He did not remember whether he was wearing any clothes. Appellant walked over and sat to D.R.'s right. D.R. remembered that appellant was wearing a black t-shirt. The next thing that D.R. recalled was lying on the futon with his knees raised, similar to the position he would have been in if doing a "sit-up," and that appellant draped a towel over D.R.'s knees. Appellant's hands were on D.R.'s knees and he "felt something very strange around" his "anal area." D.R. initially described it as a "male body part," and then said it felt like a penis, but he could not see it because of the towel. D.R. felt "a motion, like around," and then a "pry, like a poke," in his anal area. He said he could feel the poking or prodding inside his anus, that it was "[v]ery uncomfortable," and it hurt. It went in "[a] little bit" at first, "then a lot," and lasted for what "felt like a really long time." D.R. did not recall how long this went on but eventually appellant stopped. He did not say anything. D.R. remembered that "[a]fter a while I stopped crying" and "it went back to normal." D.R. went back to "sitting on the couch again" but continued to feel pain in his anal area. He said that a "very long time" passed before he told his mother about the incident because he was afraid. D.R. did not recall any other occasion when he was sexually assaulted by appellant, and said that "one time" was all he could remember. In April 2006, when he was approximately eleven or twelve years old, D.R. was playing with his step-niece, S, when Anthony entered his bedroom and saw D.R. removing S's pants. Extremely upset over what she had seen, Anthony drove D.R. to her sister's home on Jamaica Street in Dallas, Texas. Meanwhile, S's parents took her to a nearby hospital for a medical examination. After arriving at her sister's residence, Anthony asked D.R. why he was removing S's pants. D.R. was at first reluctant to answer the question, but, according to Anthony, "eventually [D.R.] just said, [`]I was doing what my daddy do [sic] to me.'" Shocked, Anthony asked D.R. about the details of the abuse. With his aunt and sister present, D.R. told Anthony what happened. Anthony subsequently received a telephone call from Child Protective Services (CPS) regarding the incident involving D.R. and S. During this conversation, Anthony told CPS that D.R. had alleged he was sexually abused by appellant. CPS referred the incident involving D.R. and S to the Dallas Police Department's Child Abuse Unit for further investigation. Dallas police detective Arlene Martinez, assigned to the Child Abuse Unit, was informed by CPS that D.R. had alleged sexual abuse, and arrangements were made for a forensic interview. Approximately one week later, Anthony and D.R. went to the Dallas Children's Advocacy Center (DCAC) to meet with a forensic interviewer regarding the abuse allegation. Martinez watched the interview through a one-way mirror. Although she spoke to a CPS case worker before the interview, Martinez testified that she learned all of the information regarding "when the offense was to have occurred" from watching the forensic interview, which lasted thirty to thirty-five minutes. According to Martinez, D.R. was soft-spoken and, at times, tearful and emotional during the interview. While at the DCAC, Anthony gave a handwritten statement to the police dated April 12, 2006, indicating that, on April 2, D.R. told her that appellant "placed a towel over him and messed with . . . his butt." After the interview, Dallas police launched an investigation of D.R.'s abuse allegations. Martinez interviewed various witnesses, including Anthony and the CPS case worker, and referred D.R. to the DCAC for counseling and to the Children's Medical Center (CMC) for a medical examination. A few days after the forensic interview, on April 19, 2006, Anthony brought D.R. to the CMC for a sexual abuse examination. The examination began with a detailed transcription of D.R.'s medical history. After discussing the reason for the referral, a full medical examination was conducted, including a detailed evaluation of the genital and anal area. The doctor who conducted the examination, Dr. Emma Raizman, reported her findings to Dr. Matthew Cox for review. Dr. Cox testified that the medical exam showed no injuries to D.R.'s "genital or anal structures," but he noted that those findings did not either rule out or confirm the possibility of sexual abuse. After reviewing the medical findings, interviewing witnesses, and conferring with her supervisors, Martinez elected not to file charges against D.R. But charges were brought against appellant, and a warrant was issued for his arrest. Issues Ineffective Assistance
In his first issue, appellant argues he received ineffective assistance of counsel because trial counsel (1) failed to object to extraneous offense evidence allegedly offered during Anthony's testimony (that appellant sexually assaulted D.R. on more than one occasion) and to hearsay in Anthony's handwritten statement; and (2) failed to object to the admission of D.R.'s videotaped DCAC interview, "especially since the complainant testified and had already given a damaging account of sexual assault." Appellant also faults trial counsel for failing to secure a rule 702 hearing prior to the trial testimony of Dr. Ashley Lind, a DCAC child abuse expert, in order to "permit inspection of Dr. Lind's file, if any," and challenge the basis for her assertion that the great statistical majority of children who made delayed outcries of sexual abuse were telling the truth. It is appellant's burden to show by a preponderance of the evidence that trial counsel's performance was deficient in that it fell below the prevailing professional norms and the deficiency prejudiced the defendant; in other words, but for the deficiency, there is a reasonable probability that the result of the proceeding would have been different. See Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). We examine the totality of counsel's representation to determine whether appellant received effective assistance but do not judge counsel's strategic decisions in hindsight; rather, we strongly presume counsel's competence. Id. In most cases, a silent record providing no explanation for counsel's actions will not overcome the strong presumption of reasonable assistance, and an application for writ of habeas corpus is often the more appropriate vehicle to raise such claims. See Rylander v. State, 101 S.W.3d 107, 110-11 (Tex. Crim. App. 2003). Furthermore, counsel should ordinarily be given an opportunity to explain his actions before being condemned as incompetent. Id. at 111. The record in this case does not provide us with any explanation of counsel's actions. Although there is a motion for new trial in the clerk's record that alleges appellant "received ineffective assistance of counsel," the motion bears no file-mark indicating the date, time, and place that it was filed, and there is no indication the motion was ever presented to the trial court. Nor does the record show that a hearing was held on the motion. As a result, counsel was not given an opportunity to explain his actions or trial strategy. Thus, as in Thompson, the record provides no discussion of trial counsel's purported errors. It contains no discernible explanation of the motivation behind counsel's actions, nor does it contain any discussion of counsel's trial strategy. Because the record is silent regarding any explanation for counsel's actions, we cannot conclude appellant has met his burden to overcome the strong presumption of reasonable assistance. See Freeman v. State, 125 S.W.3d 505, 506 (Tex. Crim. App. 2003) ("The record in this case is insufficient to support the conclusion [that appellant received ineffective assistance of counsel] because appellant did not develop a record in the trial court for the purpose of establishing this claim."); Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994) (appellate court is not required to indulge in speculation concerning counsel's decision-making processes or to imagine reasons why counsel acted or failed to act in a particular manner). We conclude that the record is insufficient to support appellant's ineffective assistance complaints on direct appeal. We overrule appellant's first issue. Sufficiency of the Evidence
In his second issue, appellant argues the evidence is factually insufficient to support his conviction for aggravated sexual assault of a child under the age of fourteen. The court of criminal appeals' recent decision in Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010) (plurality op.), overruled Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996), and concluded the Jackson v. Virginia standard is the only standard a reviewing court should apply in determining whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt. Brooks, 323 S.W.3d at 894-95. Under that standard, we examine the evidence in the light most favorable to the judgment and determine whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Brooks, 323 S.W.3d at 899-900; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We defer to the jury's determinations of the witnesses' credibility and the weight to be given their testimony because the jury is the sole judge of those matters. Brooks, 323 S.W.3d at 899-900; Laster v. State, 275 S.W.3d 512, 517-18 (Tex. Crim. App. 2009). A person commits aggravated sexual assault if he intentionally or knowingly causes the penetration of the anus or sexual organ of child younger than fourteen by any means. Tex. Penal Code Ann. § 22.021(a)(1)(B)(i), (2)(B) (West Supp. 2009). The complainant's testimony alone can establish penetration. Garcia v. State, 563 S.W.3d 925, 928 (Tex. Crim. App. [Panel Op.] 1978). A child complainant's testimony alone will support an aggravated sexual assault conviction. Tear v. State, 74 S.W.3d 555, 560 (Tex. App.-Dallas 2002, pet. ref'd). The slightest penetration will suffice to support the indictment. See Vernon v. State, 841 S.W.2d 407, 409 (Tex. Crim. App. 1992). We do not sit as a thirteenth juror to reevaluate a witness's testimony merely because the witness used unsophisticated language or had a limited vocabulary. See Villalon v. State, 791 S.W.2d 130, 134 (Tex. Crim. App. 1990). Appellant argues the evidence in this case is insufficient because there were no eyewitnesses, no immediate outcry, and no medical evidence to corroborate the complainant's allegations. Appellant also cites multiple alleged discrepancies in the trial testimony, including D.R.'s age at the time of the offense, the physical location of the offense, the position of D.R. during the offense, and whether appellant wore clothing during the offense. Regarding the lack of corroborating medical evidence, there is no requirement that a victim's testimony be corroborated by medical or physical evidence. See Newby v. State, 252 S.W.3d 431, 437 (Tex. App.-Houston [14th Dist. 2008, pet. ref'd) (citing Garcia, 563 S.W.2d at 928). Furthermore, Dr. Cox testified that it was "uncommon to identify permanent injuries" in children as a result of a sexual assault. Among the reasons were that the sexual assault did not permanently injure tissues, the nature and type of tissues involved, the ability of tissues to heal and stretch, and the time frame of the contact in relation to the examination. Dr. Cox also explained that an examination indicating normal genital and anal structures did not necessarily rule out or confirm the occurrence of sexual abuse. Turning to the lack of an immediate outcry in this case, Dr. Lind of the DCAC cited statistics indicating that seventy-five percent of children who were sexually abused delayed their outcry by at least one year. She also noted that children often harbor fear, guilt, and confusion regarding the abuse, and this can contribute to a delay in making an outcry. Other contributing factors include whether the offender was part of the complainant's family, the complainant's gender, and whether the offender was of the same sex as the complainant. Moreover, Dr. Lind noted that abused children sometimes outcry only after they are caught engaging in sexual activity. We defer to the trier of fact's determinations of witnesses' credibility and the weight to be given their testimony. See Brooks, 323 S.W.3d at 899-900; Laster, 275 S.W.3d at 517-18. As for the lack of eyewitnesses to the offense, we have already noted that a child's testimony alone is sufficient to support a conviction for aggravated sexual assault of a child. Tear, 74 S.W.3d at 560. In addition, a child victim's outcry statement alone can be sufficient to support a conviction for aggravated sexual assault. Id. Appellant's contention regarding the lack of an eyewitness to the offense is without merit. As for alleged inconsistencies in trial testimony, it was the role of the trier of fact to reconcile conflicts, contradictions, and inconsistencies in the evidence, and to judge the credibility of witnesses. See Brooks, 323 S.W.3d at 899-900; Laster, 275 S.W.3d at 517-18. Appellant's arguments rest on evidentiary weight and credibility determinations that are reserved for the trier of fact. The trier of fact was entitled to resolve those evidentiary weight and credibility determinations in the State's favor, and to reject appellant's evidence. Therefore, after reviewing the evidence in this case under the appropriate standard of review, we conclude it is sufficient to support the conviction. We overrule appellant's second issue. We affirm the trial court's judgment.