No. 05-09-01246-CR
Opinion issued January 20, 2011. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the 15th Judicial District Court, Grayson County, Texas, Trial Court Cause No. 058502.
Before Justices BRIDGES, FRANCIS, and LANG.
Opinion By Justice BRIDGES.
Appellant Vicente Zamora Comparan appeals his conviction for aggravated sexual assault of a child under six years of age and accompanying sentence. In his first and second issues, appellant contends the evidence was legally and factually insufficient to sustain the verdict. In his third issue, appellant argues he was denied effective assistance of counsel. We affirm.
Background
Approximately two weeks following Thanksgiving, the victim, A.C., made an outcry to her mother, Mrs. Castillo. A.C., who was three years old at the time, told her mother that "little grandpa" had touched her on the "pee pee." Mrs. Castillo, called her own mother and took A.C. to the doctor the next day. Following the doctor's visit, Mrs. Castillo called Mr. Castillo, her husband and A.C.'s father. Mrs. Castillo testified that the outcry was in response to a conversation she had with all three of her children about letting other people touch them in their private places. The police became aware of the allegations against appellant when Mr. Castillo, still distraught, was detained on a speeding violation. The Van Alstyne Police Department became involved, and A.C. was taken to the Children's Advocacy Center in Grayson County, Texas. There, forensic interviewer, Bobbie Wick, spoke to the child. Wick's initial interview with A.C. was recorded. A.C. repeatedly stated "grandpa" touched her "pee pee" and that the touching had been under her clothes. A.C. stated appellant had "hurt" her when he touched her "pee pee." In an effort to confirm which "grandpa" A.C. was referring to, Detective Tim Barnes obtained photographs of A.C.'s two grandfathers and her step-grandfather, appellant. During the second interview with Wick, A.C. identified appellant as her assailant and, once again, stated he had touched her "pee pee." Mr. Castillo testified that, on Thanksgiving day, A.C. was in contact with appellant. Mr. Castillo observed A.C. following appellant around that day and then later observed appellant alone in a car, drinking alcohol. Mrs. Castillo testified that, on Thanksgiving day, she was looking for A.C. and found her with appellant in appellant's car, sitting on his lap. She immediately made A.C. come into the house. When questioned about A.C.'s outcry that took place a few weeks later, Mrs. Castillo stated that A.C. told her that the incident took place outside. Mrs. Castillo explained A.C. told her that "'grandpa touched [her] pee pee.' She [held] her finger like this and she spread her legs and she said, 'He touched me there.'" SANE nurse examiner Catherine Strain testified that, at the age of three, a child's hymen was thin and hypersensitive, making any contact painful. She also explained that digital penetration was the most common sexual assault of a child, and only fourteen percent of confirmed sexual assaults involving penetration yielded physical indications of that penetration. A.C.'s counselor, Jo Kaspar, also testified. Kaspar explained that A.C. exhibited signs of post-traumatic stress disorder. Kaspar also testified that A.C. had reported nightmares involving appellant, which was consistent with a child who had been sexually abused. Officer Kennedy of the Van Alstyne Police Department was one of the officers who executed a warrant and arrested appellant. Kennedy testified that, during his interview of appellant following arrest, appellant stated he might have touched A.C.'s genitals by accident. Finally, appellant testified and denied sitting outside in a car at Thanksgiving or that he had been alone with A.C. A jury convicted appellant of aggravated sexual assault of a child under six years of age and assessed punishment at 99 years in prison. This appeal ensued. Analysis
We address his first and second issues, noting the Texas Court of Criminal Appeals has overruled Clewis v. State, holding the Jackson v. Virginia standard is the only standard a reviewing court is to 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. See Brooks v. State, 323 S.W.3d 893, 894-95 (Tex. Crim. App. 2010) (plurality op.). Therefore, we will address appellant's issues under the Jackson v. Virginia standard. In reviewing a challenge to the sufficiency of the evidence, we examine all the evidence in the light most favorable to the verdict 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 894-95. We are required to defer to the jury's credibility and weight determinations because the jury is the sole judge of the witnesses' credibility and the weight to be given their testimony. See Jackson, 443 U.S. at 326 ("a court faced with a record of historical facts that supports conflicting inferences must presume-even if it does not affirmatively appear in the record-that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution"). The State was required to prove beyond a reasonable doubt that appellant intentionally or knowingly caused the penetration of the anus or sexual organ of a child by any means. Tex. Penal Code Ann. § 22.021 (a)(1)(B)(i) (West Supp. 2010). Here, the evidence demonstrates Mr. Castillo saw appellant, sitting outside in his car on Thanksgiving day, drinking. Mrs. Castillo also confirmed she found appellant outside, in his car, with A.C. on his lap before she asked A.C. to come inside. Mrs. Castillo stated A.C. said appellant touched her "pee pee." Wick testified that A.C. told her the touching had been under her clothes and that it "hurt." The jury also heard from the SANE nurse examiner that, at the age of three, a child's hymen was thin and hypersensitive, making any contact painful. Further, the nurse examiner explained that digital penetration was the most common form of penetration. In addition, Kaspar testified that A.C. had reported nightmares involving appellant, which was consistent with a child who had been sexually abused. Finally, the jury heard that, in a prior statement to police, appellant stated he might have touched A.C.'s genitals by accident. We conclude the evidence was sufficient to support appellant's conviction. Jackson, 443 U.S. at 319 (1979); Brooks, 323 S.W.3d at 894-95. We overrule appellant's first and second issues. In his third issue, appellant contends he received ineffective assistance of counsel when his trial attorney: (1) failed to request the trial court instruct the jury to consider the lesser included offense of indecency with a child and (2) failed to object to jury argument by the prosecutor. A claim of ineffective assistance of counsel is reviewed under the Strickland test. Hernandez v. State, 988 S.W.2d 770, 770 (Tex. Crim. App. 1999) (citing Strickland v. Washington, 466 U.S. 668 (1984)). In determining whether counsel rendered ineffective assistance, an appellate court considers two factors: (1) whether counsel's performance fell below an objective standard of reasonableness and (2) whether, but for counsel's deficient performance, the result of the proceeding would have been different. Thompson v. State, 9 S.W.3d 808, 812 (Tex Crim. App. 1999). Appellant bears the burden of proving his counsel was ineffective by a preponderance of the evidence. Id. at 813. There is a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002); Thompson, 9 S.W.3d at 813. To defeat this presumption, appellant must prove that there was no plausible professional reason for a specific act or omission. Bone, 77 S.W.3d at 836. Any allegations of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson, 9 S.W.3d at 813 (citing McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996)). Thus, a reviewing court will rarely be able to fairly evaluate the merits of an ineffective assistance claim on direct appeal because the record on direct appeal is not developed adequately to reflect the reasons for defense counsel's actions at trial. Mata v. State, 226 S.W.3d 425, 430 (Tex. Crim. App. 2007). Here, we do not have an adequate record to review appellant's claim of ineffectiveness. See id.; Thompson, 9 S.W.3d at 813-15. Appellant must prove that there is no possible strategic reason for counsel's actions and trial counsel should be given the opportunity to explain his actions before being denounced as "ineffective." Bone, 77 S.W.3d at 836. The record before us is devoid of evidence from trial counsel himself and is "simply undeveloped and cannot adequately reflect the failings of trial counsel." Thompson, 9 S.W.3d at 814 (citing Jackson v. State, 973 S.W.2d 954, 957 (Tex. Crim. App. 1998)). The record is silent as to why appellant's trial counsel: (1) failed to request the trial court instruct the jury to consider the lesser included offense of indecency with a child and (2) failed to object to the alleged improper jury argument by the prosecutor. Therefore, appellant has failed to rebut the presumption that counsel's decisions were reasonable, and we overrule appellant's third issue. Bone, 77 S.W.3d at 833; Thompson, 9 S.W.3d at 813-14. Having overruled all of appellant's issues, we affirm the judgment of the trial court.