No. 09-08-00396-CR
Submitted on December 7, 2009.
Opinion Delivered May 26, 2010. DO NOT PUBLISH.
On Appeal from the 258th District Court Polk County, Texas, Trial Cause No. 20,013.
Before McKEITHEN, C.J., GAULTNEY and KREGER, JJ.
CHARLES KREGER Justice.
A jury found Brandon Gene Rushing guilty of two counts of indecency with a child by contact, one count of aggravated sexual assault of a child, and one count of indecency with a child by exposure. See TEX. PEN. CODE ANN. §§ 21.11(a)(1), 21.11(a)(2), 22.021(a)(2)(B) (Vernon Supp. 2009). The jury also found two enhancement paragraphs "true" and assessed punishment at twenty years' confinement for both counts of indecency with a child by contact, a life term for the count of aggravated sexual assault, and ten years' confinement for the count of indecency with a child by exposure. The trial court ordered his sentences to run concurrently. In seven issues, Rushing challenges the legal and factual sufficiency of the evidence to support his indecency with a child by exposure conviction, asserts that his sentences could not be enhanced by his prior court-martial convictions, and contends that he received ineffective assistance of counsel. We overrule Rushing's issues and affirm the trial court's judgment.
EVIDENCE AT TRIAL
H.R., who was ten years old at the time of trial, testified to several instances in which Rushing touched her breasts and genitalia with his hands and his genitals. H.R. also explained that while visiting Rushing in Fort Worth, he performed oral sex on her and digitally penetrated her genitalia. Additionally, following an outing in which they were to go swimming, Rushing penetrated her anus with his male sexual organ. According to H.R., Rushing also had H.R. perform oral sex on him while he was driving his vehicle. H.R. explained that Rushing threatened her if she told anyone and promised her money in exchange for what he did to her. H.R. also testified that while she and her friend, H.D., were at Rushing's house with H.D.'s younger brother, Rushing exposed his male sexual organ to them. While "holding it and going back and forth" with it, Rushing chased H.R. and H.D. H.D. hid underneath a table. H.D.'s younger brother, a toddler at the time, copied Rushing's behavior, and according to H.R, both the toddler and Rushing were laughing. H.D. testified about Rushing exposing his male sexual organ to her and H.R. as well. H.D. explained that Rushing pulled his male sexual organ out of his pants and then "waved it in [H.D.'s] face[;]" she hid under the table while Rushing was laughing. H.D. also stated that her younger brother copied Rushing by doing the same thing, but that Rushing did it first. According to H.D., during another occasion, Rushing asked her to lift her shirt and expose her breasts to him, and when she refused, he chased her and pulled her shirt up anyway. H.D. said that Rushing told her that if she told on him, he would make her "pay" and that "he would make everyone think [H.D.] was a liar." Shawna Farrar, an investigator with the Texas Department of Family and Protective Services ("the Department"), testified that she interviewed H.R., H.D., and Rushing. Farrar, explaining why persons with the Department are asked to interview children in sexual abuse cases, stated that the techniques the Department uses provide children with a sense of security while the child tells what happened. In Farrar's experience, the Department's interviews also yield the child's story from the child's point of view versus the child only answering leading questions. According to Farrar, H.R. provided details of Rushing's sexual abuse with terminology appropriate for H.R.'s age. Additionally, Farrar stated that in her opinion, H.R.'s reactions were consistent with a child suffering from abuse and that H.R.'s responses did not appear coached. Farrar also spoke with H.D. about Rushing; Farrar found H.D.'s responses to be consistent with a child who had undergone inappropriate sexual contact. During her interview with Rushing, Farrar testified that Rushing provided many of the same details of the swimming incident that H.R. provided, absent the sexual abuse. Farrar noted that while she did not recall Rushing ever specifically denying H.R.'s allegations, at one point he asked if there was "any physical evidence" of the sexual abuse. Rushing testified at trial. He denied all of the sexual abuse allegations. With respect to the exposure incident, Rushing stated that he did not expose himself to H.R. or H.D. and that it was H.D's toddler brother who exposed himself. Rushing claimed specifically that H.D. was lying about the incident. LEGAL AND FACTUAL SUFFICIENCY OF THE EVIDENCE
Rushing contends in his first issue that the evidence is legally and factually insufficient to support his indecency with a child by exposure conviction. In reviewing the legal sufficiency of the evidence, an appellate court reviews all of the evidence in a light most favorable to the verdict, and must decide if any rational trier of fact could find the essential elements of the crime beyond a reasonable doubt. Evans v. State, 202 S.W.3d 158, 161 (Tex. Crim. App. 2006). The trier of fact is the sole judge of the facts proven and of the weight to be given the testimony, unless otherwise provided by law. TEX. CODE CRIM. PROC. ANN. art. 36.13 (Vernon 2007), art. 38.04 (Vernon 1979); see also Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008) ("Appellate courts should afford almost complete deference to a jury's decision when that decision is based upon an evaluation of credibility."). When conducting a factual sufficiency review, a court views the evidence in a neutral light and asks whether the evidence supporting the verdict is so weak, or the verdict is so against the great weight and preponderance of the evidence, as to render the verdict manifestly unjust. Grotti v. State, 273 S.W.3d 273, 283 (Tex. Crim. App. 2008). A person commits the offense of indecency with a child by exposure if, the person, with the intent to arouse or gratify the sexual desire of any person, exposes any part of the person's genitals to a child under the age of seventeen. TEX. PEN. CODE ANN. § 21.11(a)(2)(A) (Vernon Supp. 2009). Rushing claims "there is no evidence to show that [he] acted to arouse or gratify anyone's sexual desire." However, the "specific intent to arouse or gratify the sexual desire of any person can be inferred from the defendant's conduct, his remarks and all surrounding circumstances." McKenzie v. State, 617 S.W.2d 211, 216 (Tex. Crim. App. 1981); see also Connell v. State, 233 S.W.3d 460, 467 (Tex. App.-Fort Worth 2007, no pet.). "An oral expression of intent is not required[.]" Connell, 233 S.W.3d at 467 (citing C.F. v. State, 897 S.W.2d 464, 472 (Tex. App.-El Paso 1995, no writ)). Additionally, a complainant's testimony alone is sufficient to support a conviction for indecency with a child. TEX. CODE CRIM. PROC. ANN. art. 38.07 (Vernon 2005) (providing that requirement that victim inform another person within one year does not apply to a victim under seventeen at the time of the offense); Connell, 233 S.W.3d at 466. Both H.R. and H.D. testified that Rushing waved his male sexual organ around while in their presence. H.D. added that he waved it in her face and she hid underneath a table. Moreover, both H.R. and H.D. explained other incidents in which Rushing engaged in inappropriate sexual contact with them. Viewing all of the evidence in the light most favorable to the verdict, we conclude that a rational trier of fact could have found beyond a reasonable doubt that Rushing acted with the intent to arouse or gratify his sexual desire. See Evans, 202 S.W.3d at 161. In addition to all the testimony regarding Rushing's other sexual contact, the jury heard both the children's versions of the exposure incident and Rushing's explanation of the incident. The jury could have believed the children's versions. Having considered all of the evidence presented, we cannot conclude it is so weak, nor the contrary evidence so overwhelming, that the verdict is clearly wrong and manifestly unjust. See Grotti, 273 S.W.3d at 283. Accordingly, we hold the evidence is legally and factually sufficient to support Rushing's indecency with a child by exposure conviction, and we overrule his first issue. COURT-MARTIAL CONVICTIONS USED FOR ENHANCEMENT
In his second and third issues, Rushing argues that the trial court erred in permitting the State to use Rushing's previous court-martial convictions for enhancement purposes. We disagree. Section 12.42(c)(2)(B)(v) of the Texas Penal Code imposes a mandatory life sentence for a defendant previously convicted of an offense "under the laws of another state containing elements that are substantially similar to the elements of an offense listed in Subparagraph (i), (ii), (iii), or (iv)." TEX. PEN. CODE ANN. § 12.42(c)(2)(B)(v) (Vernon 2003). "By enacting section 12.42(c)(2), the legislature mandated a life sentence for anyone who is convicted of the sexual assault of a child a second time." Williams v. State, 10 S.W.3d 370, 372 (Tex. App.-Tyler 1999, pet. ref'd). The Texas Court of Criminal Appeals has held that properly proved-up court-martial proceedings are deemed final convictions and are admissible in courts of record. See Johnson v. State, 432 S.W.2d 98, 100 (Tex. Crim. App. 1968); see also Nelson v. State, 765 S.W.2d 401, 408 (Tex. Crim. App. 1989) (Teague, J., concurring). Rushing contends that the State cannot use section 12.42(c)(2)(B)(v) to enhance his sentence because enhancement under the statute only arises upon the State's showing of prior convictions for certain offenses under Texas law or similar offenses "under the laws of another state." See TEX. PEN. CODE ANN. § 12.42(c)(2). While Rushing does not argue that his prior court-martial convictions are not similar offenses to those included in the enhancement statute, Rushing claims that his court-martial convictions cannot be used because the Uniform Code of Military Justice ("UCMJ") is not "state law" and section 12.42(c)(2)(B)(v) does not specifically include convictions of similar offenses under the UCMJ. See 10 U.S.C.A. §§ 801- 946 (West 1998 Supp. 2009). As support for his proposition, Rushing cites to other Texas statutes that expressly reference the UCMJ within the statutes' text. Rushing argues that because section 12.42(c)(2)(B)(v) does not expressly reference the UCMJ, the Texas legislature intentionally excluded convictions under the UCMJ and his prior court-martial convictions cannot be used to enhance his sentence in this instance. Although section 12.42(c)(2)(B)(v) does not expressly reference a conviction under the UCMJ, it includes similar convictions "under the laws of another state." See TEX. PEN. CODE ANN. § 12.42(c)(2)(B)(v). The Texas Government Code defines "state" as "any state, district, commonwealth, territory, and insular possession of the United States and any area subject to the legislative authority of the United States of America." TEX. GOV'T CODE ANN. § 311.005(7) (Vernon 2005). The United States Congress enacted the UCMJ and thus, the UCMJ is subject to the legislative authority of the United States. See 10 U.S.C.A. §§ 801- 946. Moreover, "[t]he legislature has an interest in removing habitual sexual predators of children from society and in protecting the children of this State. This basis is rational and sufficient for the legislature to require a mandatory life sentence for being convicted twice of sexually assaulting a child." Williams, 10 S.W.3d at 372-73. Our sister court in San Antonio has held that a prior conviction in a military proceeding can be used for enhancement purposes under section 12.42(c)(2)(B)(v), and we agree. Wieghat v. State, 76 S.W.3d 49, 52-53 (Tex. App.-San Antonio 2002, no pet.). We conclude that the trial court did not err in allowing the State to seek enhancement of Rushing's punishment with his prior court-martial convictions. Accordingly, we overrule Rushing's second and third issues. INEFFECTIVE ASSISTANCE OF COUNSEL
In his fourth, fifth, sixth, and seventh issues, Rushing argues that he was denied effective counsel at trial. We apply a two-pronged test to ineffective assistance of counsel claims. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.E.2d 674 (1984); Garza v. State, 213 S.W.3d 338, 347-48 (Tex. Crim. App. 2007); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). To establish ineffective assistance of counsel, the appellate must show by a preponderance of the evidence that his counsel's representation fell below the standard of prevailing professional norms and that there is a reasonable probability that, but for counsel's deficiency, the result of the trial would have been different. Strickland, 466 U.S. 688, 694; Garza, 213 S.W.3d at 347-48; Thompson, 9 S.W.3d at 812. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Thompson, 9 S.W.3d at 812. But, as Garza explained, our review of ineffective assistance claims is "highly deferential" to trial counsel as we presume "that counsel's actions fell within the wide range of reasonable and professional assistance." 213 S.W.3d at 348. When, as in the instant case, there has been no post-trial evidentiary proceeding during which trial counsel is afforded the opportunity to present evidence of the strategic bases, if any, for his trial decisions, it is extremely difficult for a defendant to meet his burden of showing counsel performed deficiently. See Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002); Stults v. State, 23 S.W.3d 198, 208-09 (Tex. App.-Houston [14th Dist.] 2000, pet. ref'd). Absent such evidence, appellate courts are not at liberty to find trial counsel's conduct ineffective unless the challenged conduct was '"so outrageous that no competent attorney would have engaged in it.'" Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005) (quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001)). Additionally, any Strickland claim must be '"firmly founded in the record' and 'the record must affirmatively demonstrate' the meritorious nature of the claim." Id. (quoting Thompson, 9 S.W.3d at 813, 814) (declining to speculate on counsel's failure to object to hearsay in light of a silent record). While acknowledging the absence of any post-trial evidentiary record in this case to support his claims on appeal, Rushing contends that we should find that his trial counsel was ineffective as a matter of law based on a myriad of alleged errors by trial counsel during the course of the trial, based primarily on trial counsel's failure to object to certain testimony during trial. Initially, Rushing complains that trial counsel failed to object to Farrar's testimony opining that H.R.'s and H.D.'s demeanor during their interviews were consistent with children who have been sexually abused and did not show indications that their stories had been coached. Rushing complains that trial counsel should have objected to such testimony as improper bolstering for the children's truthfulness. However, expert testimony that a child complainant exhibits symptoms consistent with sexual abuse or that the child did not exhibit indications of coaching or manipulation has been held not to constitute an opinion on the child's truthfulness, which is not admissible. See Schutz v. State, 957 S.W.2d 52, 73 (Tex. Crim. App. 1997); Cohn v. State, 849 S.W.2d 817, 818-19 (Tex. Crim. App. 1993); Reynolds v. State, 227 S.W.3d 355, 365, 366 (Tex. App.-Texarkana 2007, no pet.). Further, Rushing makes several additional arguments as the basis for his claim of ineffectiveness of counsel; namely, that his trial counsel failed to object to (1) the State's asking Farrar leading questions, (2) H.R.'s alleged hearsay testimony, (3) a venire member's response during voir dire to a question regarding a sexual abuse victim's ability to quickly heal, and (4) Farrar's testimony regarding Rushing's reason to not take a polygraph test. Faced with complaints about a trial counsel's alleged deficiencies in a trial, we do not judge counsel's strategic decisions in hindsight. Thompson, 9 S.W.3d at 813. Trial counsel's decisions are viewed with great deference when trial counsel's reasons for not undertaking a suggested strategy do not appear in the record. Goodspeed, 187 S.W.3d at 392. Here, Rushing did not file a motion for new trial. Trial counsel's decisions may have been grounded on a reasonable appreciation of a reasonable trial strategy given the specific facts and circumstances attendant to this trial. On this record, we cannot conclude that that the performance of Rushing's trial attorney was deficient. See Bone, 77 S.W.3d at 833 (noting that in the majority of cases on a direct appeal, the trial court record is not sufficiently developed to adequately reflect the failings of trial counsel). Moreover, having reviewed the record, we cannot conclude that the challenged conduct was "'so outrageous that no competent attorney would have engaged in it.'" Goodspeed, 187 S.W.3d at 392 (quoting Garcia, 57 S.W.3d at 440). We conclude Rushing's ineffectiveness claims are without merit and thus, we overrule Rushing's fourth, fifth, sixth, and seventh issues. CONCLUSION
Having overruled each of Rushing's seven issues, we affirm the trial court's judgment. AFFIRMED.