No. 05-08-00546-CR
Opinion Filed March 26, 2009. DO NOT PUBLISH Tex. R. App. P. 47.
On Appeal from the Criminal District Court No. 4, Dallas County, Texas, Trial Court Cause No. F-07-19611-K.
Before Justices FRANCIS, LANG-MIERS, and MAZZANT. Opinion By Justice LANG-MIERS.
ELIZABETH LANG-MIERS, Justice.
Appellant was convicted of aggravated sexual assault of a child under fourteen years of age and sentenced to fifteen years in prison. On appeal he argues that ineffective assistance of counsel and factual insufficiency of the evidence justify reversal. We affirm the trial court's judgment.
Background
The complainant, K.D., was the first witness called by the State. She testified that she was thirteen years old at the time of the sexual assault and appellant was a friend of her mother. On the evening of May 14, 2007, appellant and his two infant children were at K.D.'s mother's apartment with K.D. and several other people. K.D. testified that some of the people in the apartment were smoking "whack" that night. At bedtime, K.D. took appellant's children to her room and put them to bed with her. In the morning, K.D. awoke and felt someone rubbing her back under her shirt. She turned around and saw that it was appellant. She pushed his hand away and turned around and dozed off again. When she woke up again a short time later, she was lying on her back and appellant was on top of her. Appellant pulled K.D.'s pajama bottoms and underwear down to her knees. He reached inside his pants, pulled out his penis, and penetrated K.D.'s vagina with his penis. K.D. asked him to stop, but he continued and told her to be quiet. When he was finished, appellant lay down next to his children on the bed. K.D. got up and went to school. During her second class, she told the teacher that she needed to make an emergency phone call. She called her mother and told her appellant had raped her. K.D.'s mother came to the school and police interviewed them. As police instructed, K.D. and her mother went to Children's Medical Center in Dallas for a sexual assault examination. On cross examination, K.D. explained that she did not scream out during the rape because she was affected by the whack smoke from the previous night. Appellant's counsel asked her if the whack smoke "could have somehow affected [her] ability to know what was happening," and she responded, "Not really." After K.D. testified, K.D.'s mother testified. She had known appellant for about a month and during that time had consensual sex with him on a couple of occasions. On the morning of May 15, 2007, appellant entered K.D.'s mother's bedroom and had sex with her for about five minutes and then left the room. She heard her daughters leave for school. Shortly after they left, K.D. called her from school and said appellant had raped her. James Nichols, a forensic scientist who works in the DNA section at the Texas Department of Public Safety's crime lab, testified for the State. Nichols performed DNA analysis on a vaginal swab from K.D.'s sexual assault examination. He compared the DNA from the swab to known samples of DNA from K.D. and appellant and determined that "[t]he DNA profile from the sperm fraction of the vaginal swab is consistent with a mixture from the victim and Kevin Egana." Nichols explained to the jury that the most conservative probability that the DNA on the swab actually came from a random person other than appellant was 1 in 683.1 million. To further explain that statistic, Nichols said "you would have to go through" approximately three times the population of the United States to find another person who might be a contributor of the DNA on the vaginal swab that matched appellant's DNA. After the State rested its case, appellant testified in his own defense. According to appellant, he spent the night at K.D.'s mother's apartment on the night of May 14, 2007, and there was "a lot" of drug use at the apartment that night, including people snorting cocaine and smoking whack and marijuana. He had consensual sex with K.D.'s mother the next morning, but denied sexually assaulting K.D. Appellant told the jury that K.D. may have falsely accused him of rape because she was upset that he was having sex with her mother. First Three Issues: Ineffective Assistance of Counsel
In his first three issues, appellant argues that he was denied effective assistance of counsel. To prevail on a claim of ineffective assistance of counsel, appellant must prove by a preponderance of the evidence that his counsel's representation fell below an objective standard of reasonableness and that there is a reasonable probability the result of the proceedings would have been different in the absence of his counsel's errors. Strickland v. Washington, 466 U.S. 668, 687-88 (1984); Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002). An appellate court ordinarily will not declare trial counsel ineffective where there is no record showing counsel had an opportunity to explain himself. See Goodspeed v. State, 187 S.W.3d 390, 392 (Tex.Crim.App. 2005). With regard to allegations of deficient performance, "'trial counsel should ordinarily be afforded an opportunity to explain his actions before being denounced as ineffective.'" Id. (citing Rylander v. State, 101 S.W.3d 107, 111 (Tex.Crim.App. 2003)). "Absent such an opportunity, an appellate court should not find deficient performance unless the challenged conduct was 'so outrageous that no competent attorney would have engaged in it.'" Id. Appellant specifically argues that his counsel was ineffective because he failed to object to when K.D.'s mother testified that K.D. told her she was "raped by" appellant. Appellant contends that his counsel was obligated to object to K.D.'s mother's testimony for four reasons: "(1) [K.D.] was too old to trigger the outcry statute, (2) the State provided improper notice [of outcry witness testimony], (3) the State failed to obtain a finding regarding reliability, and (4) [K.D.]'s mother was not the proper outcry witness." He also argues that his counsel was ineffective because he did not object when the State introduced into evidence notes from K.D.'s sexual assault examination at Children's Hospital, which also indicated that K.D. said she was "raped" by appellant. In response, the State argues that appellant's counsel was not ineffective and that appellant has not met his burden of proving that his counsel was ineffective. Appellant did not file a motion for new trial or introduce any evidence relating to his counsel's reasoning or rationale for not objecting to the statements. Moreover, even if appellant's counsel erred by failing to object to the statements in question, we cannot conclude that appellant was harmed because the statements were cumulative of K.D.'s own testimony. See, e.g., Matz v. State, 21 S.W.3d 911, 912-13 (Tex.App.-Fort Worth 2000, pet. ref'd) (even if trial court erred in admitting hearsay statements made by victim in videotaped interview played for jury, error was harmless because statements were cumulative of victim's testimony at trial). We conclude that appellant has not met his burden of proving by a preponderance of the evidence that his counsel was ineffective or that there is a reasonable probability the result of his trial would have been different if his counsel had objected to the evidence appellant contends required an objection. We overrule appellant's first three issues. Fourth Issue: Factual Sufficiency of the Evidence
In his fourth issue appellant argues that the evidence is factually insufficient to support the jury's verdict. In a factual sufficiency review, we begin by assuming that the evidence is legally sufficient under Jackson. Laster v. State, 275 S.W.3d 512, 518 (Tex.Crim.App. 2009) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). We consider all of the evidence in a neutral light and determine whether, although legally sufficient, (1) the evidence supporting the conviction is too weak to support the fact-finder's verdict or, (2) considering conflicting evidence, the fact-finder's verdict is against the great weight and preponderance of the evidence. Id. We are not free to override the verdict simply because we disagree with it and instead may find the evidence factually insufficient only when necessary to prevent manifest injustice. Id. Appellant first argues that the evidence is factually insufficient to support the jury's verdict because K.D. "was under the influence of 'whack,' which induced her to falsely perceive that she had been sexually assaulted." We disagree. Appellant testified unequivocally that appellant held her down, pulled her pajama bottoms and underwear down, and put his penis in her vagina. During cross-examination, she denied that the second-hand whack smoke from the previous night affected her ability to know what was happening. Her testimony alone, when viewed in a neutral light, is factually sufficient to support the verdict. See, e.g., Carty v. State, 178 S.W.3d 297, 303 (Tex.App.-Houston [1st Dist.] 2005, pet. ref'd) (testimony of child victim alone factually sufficient to support conviction for sexual assault). The only contrary evidence is appellant's own testimony denying that he raped K.D., and it was the sole province of the jury to resolve any conflicts in the evidence. See Schmidt v. State, 232 S.W.3d 66, 68 (Tex.Crim.App. 2007) ("It is the sole province of the jury to weigh the credibility of the witnesses and testimony."); see also Jones v. State, 984 S.W.2d 254, 258 (Tex.Crim.App. 1998) (jury may believe or disbelieve all or part of any witness's testimony). Appellant also argues that the probative value of the DNA evidence in this case was "limited" because "[t]he State's expert was forced to admit that the probability that another person was the contributor of the semen was based merely on a mathematical estimate, as it would be impossible to actually examine every possible contributor." We disagree with appellant's contention that the probative value of the DNA evidence was limited. DNA evidence is, by its very nature, largely based on statistics and probabilities. And the DNA evidence in this case is strong. Cf. Hinojosa v. State, 4 S.W.3d 240, 245 (Tex.Crim.App. 1999) ("Despite one in 19,900,000 odds, appellant's DNA profile matched the semen found in the victim. . . . [T]hese impressive statistics support the jury's conclusion that appellant, as opposed to some unidentified 'suspect' also sharing the same DNA profile, sexually assaulted, kidnapped, and killed [the victim]."). Having reviewed all of the evidence in a neutral light, we conclude that the evidence is factually sufficient to support the verdict. We overrule appellant's fourth issue. Conclusion
We overrule appellant's four issues and affirm the trial court's judgment.