No. 05-03-01187-CR
Opinion Filed May 16, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 282nd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F01-41044-S. Affirmed.
Before Justices MORRIS, MOSELEY, and FITZGERALD.
Opinion By Justice MOSELEY.
Robert Stevenson Russell waived a jury trial and entered a non-negotiated nolo contendere plea to the offense of aggravated sexual assault. The trial court found the evidence substantiated Russell's guilt and sentenced him to five years' confinement. Russell appeals his conviction and, in two issues, Russell argues the evidence is factually insufficient to support the conviction and that he received ineffective assistance of counsel. We affirm the trial court's judgment.
Factual Sufficiency
To obtain a conviction for aggravated sexual assault, the State was required to prove beyond a reasonable doubt that Russell intentionally and knowingly caused the penetration of the female sexual organ of a child under the age of fourteen by any means. See Tex. Pen. Code Ann. § 22.021(a)(1)(B)(i), (2)(B) (Vernon Supp. 2004-05). Russell cites Clewis v. State, 922 S.W.2d 126 (Tex.Crim.App. 1996) and Johnson v. State, 23 S.W.3d 1 (Tex.Crim.App. 2000) for the standard of review for his factual sufficiency challenge. However, the standards announced in these cases do not apply when a defendant has voluntarily pled nolo contendere. See Ex Parte Martin, 747 S.W.2d 789, 792-93 (Tex.Crim.App. 1988); Wright v. State, 930 S.W.2d 131, 132 (Tex.App.-Dallas 1996, no pet.); Young v. State, 993 S.W.2d 390, 391 (Tex.App.-Eastland 1999, no pet.). When the defendant pleads nolo contendere, the State must introduce sufficient evidence to support the plea and show the defendant is guilty. Tex. Code Crim. Proc. Ann. art. 1.15 (Vernon 2002). The evidence is sufficient to support a nolo contendere plea if it embraces every essential element of the offense charged. Stone v. State, 919 S.W.2d 424, 427 (Tex.Crim.App. 1996). There is evidence in the record that, at the time of the alleged offense, the complainant, J.B., was twelve years old. She lived with her mother, Jacqueline, and fourteen year-old sister, T.B. Russell is a cousin of the complainant's father. Russell frequently visited the home, even when Jacqueline was not home. One day J.B. was home alone after school when Russell came by the house. She said Russell exposed his penis, pushed her against the bed, and his penis touched her leg. She was able to push him away and lock herself in the bathroom. Russell told her not to tell anyone. A few days later, Russell again came to the home while J.B. was alone. She was getting dressed for drill team practice and wearing a robe. Russell went into her bedroom to fix her computer and she went to the bathroom to dress. She came back to the bedroom to get something and Russell exposed his penis, started walking toward her, and pushed her on to the bed. She told him to stop and tried to push him away, but he shook her and told her to hush. He grabbed her robe so she could not escape and put his index finger in her vagina. Then the doorbell rang. Jacqueline had come home early but could not unlock the door because the top lock had been locked from the inside. Russell moved away and J.B. answered the door. J.B. did not tell her mother what had happened because Russell was nearby. Jacqueline was concerned because J.B. looked nervous and was shaking. Jacqueline saw Russell come out of J.B.'s bedroom "fixing his shirt." Jacqueline and J.B. left to pick up T.B. from school. J.B. was crying and shaking. Jacqueline repeatedly asked her what was wrong, but J.B. refused to answer. Jacqueline threatened to take J.B. to the doctor for an examination. On the way to the doctor, J.B. finally told her mother what Russell had done. Jacqueline returned home and called the police. J.B.'s sister T.B. testified that a few days before the incident with J.B., Russell came up behind her in the kitchen and touched her breasts through her t-shirt. She told him to stop and slapped him. She was afraid of him and did not tell anyone about the incident until her mother asked her if Russell had ever touched her. T.B. said that Russell had touched her breasts at least five times in the past several months. Based on this and other evidence in the record, we conclude the evidence is sufficient to embrace every essential element of the offense. See Stone, 919 S.W.2d at 427. Accordingly, we resolve Russell's first issue against him. Ineffective Assistance
In his second issue, Russell contends he received ineffective assistance of counsel at trial because his trial counsel was unprepared and failed to call certain witnesses at trial. To prevail on a claim of ineffective assistance of counsel, appellant must show by a preponderance of the evidence that counsel's representation fell below an objective standard of reasonableness and there is a reasonable probability the results of the proceedings would have been different in the absence of counsel's errors. Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984); Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002). 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 (Tex.Crim.App. 1999). When faced with a silent record as to defense counsel's strategy, the court will not speculate as to counsel's tactics or reasons for taking or not taking certain actions. Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994). Counsel should ordinarily be provided an opportunity to explain his actions before being condemned as unprofessional or incompetent. Rylander v. State, 101 S.W.3d 107, 111 (Tex.Crim.App. 2003); Bone, 77 S.W.3d at 836. At the hearing on the motion for new trial, one witness, a friend of Russell's, testified that if called, she would have testified that J.B. had a bad reputation for being truthful and law-abiding. Russell's fiancé, who testified at trial, said she was unprepared for cross-examination and was confused as to the dates when she was with Russell. Russell's sister testified that trial counsel did not appear to know what he was doing and was distracted on the morning of trial. She indicated the family and trial counsel first learned that T.B. had filed two cases against Russell on the morning of trial. She said trial counsel knew before trial that T.B.'s father, Vencent, had said that T.B. told him she was unable to tell the prosecutor the truth because Jacqueline was with her the entire time. Vencent was present at trial and was sworn in, but at the last minute he decided not to testify. Russell's mother testified that Vencent was afraid to testify at trial because he might be denied visitation with his daughter. Russell also argues that his trial counsel did not obtain J.B.'s complete medical records and did not file any pre-trial motions. The record does not contain an explanation of trial counsel's strategy of conducting the defense. The record also does not show a reasonable probability that if these witnesses, all closely related to Russell, had been called the result of the proceeding would have been different. Under these circumstances, we conclude Russell has not met his burden of demonstrating by a preponderance of the evidence that counsel's performance was deficient. Nor has he shown that but for counsel's action, the result of his trial would have been different. We resolve Russell's second issue against him. We affirm the trial court's judgment.