Opinion
No. 01-08-00173-CR
Opinion Issued July 16, 2009. DO NOT PUBLISH. TEX. R. APP. P. 47.4
On Appeal from the 248th District Court, Harris County, Texas, Trial Court Cause No. 1152889.
Panel consists of Judges KEYES, HANKS, and BLAND.
MEMORANDUM OPINION
The State charged Alejandro Farias Gonzalez with aggravated sexual assault of a child for the rape of his daughter, M.G. TEX. PENAL CODE ANN. § 22.021 (Vernon 2003). A jury found Gonzalez guilty but could not agree on his punishment. The trial court empaneled a new jury to decide punishment, which assessed punishment at forty years' confinement. Gonzalez appeals, contending that his trial counsel failed to render effective assistance in six ways: (1) counsel failed to obtain an investigator to locate witnesses; (2) during the guilt/innocence phase of the trial, counsel failed to object to the admission of, or ask for a redaction of, Gonzalez's video-taped statement to the police; (3) during the punishment phase, counsel failed to object to the lack of notice and admission of extraneous offenses; (4) counsel failed to obtain a free transcript of testimony from the guilt/innocence phase to aid in impeaching witnesses in the second punishment trial; (5) in the punishment trial, counsel failed to object to the State's closing argument about Gonzalez's lack of remorse, which Gonzalez contends constitutes a comment on his failure to testify; and (6) counsel failed to object to the State's closing argument referencing facts not in evidence. After reviewing the record, we affirm the judgment of the trial court.
Background
In August 2006, Gonzalez lived in north Houston with his wife and children, including thirteen-year-old M.G. On the morning of August 1, M.G. went into her parents' bedroom and climbed in bed between them, something she had done regularly since childhood. All three lay in bed for a few minutes, and then M.G.'s mother got up and left the house to do errands. M.G. testified that after her mother left, her father removed her shirt and began sucking and biting her breasts. He removed her shorts and underwear. She crossed her legs to try to prevent him from penetrating her, but he did so, ejaculating inside of her vagina. M.G. got up, dressed, and went across the hall to the room she shared with her younger sister, C.G. C.G. testified that M.G. came into the room and was crying loudly enough to wake C.G. C.G. was concerned because M.G. rarely cries. M.G. told C.G. that she thought their father had tried to rape her, but that she believed it must have been a dream. C.G. wanted to tell their mother, but M.G. told her not to tell anyone. M.G. did not confront her father or tell her mother about what happened. M.G. testified that a few days later, she was in the car with her father, and he pulled her into the front seat. Gonzalez asked M.G. if she remembered what happened. M.G. testified that at this point, she knew the rape had really happened. M.G. told Gonzalez that she remembered, but she did not want to talk about it. She told him that she could call the police or tell her mother. M.G. testified that he told her to go ahead and call the police and acted like he had done nothing wrong. He told her that ever since she was a little girl, he had always thought he would be her first. M.G. testified that, after the rape, her father acted normally except that he bought her a cell phone about a week later and did not buy one for C.G., which was unusual because he always bought them both the same things. C.G. testified that her father and sister were distant after the rape, whereas they had been close before. She also testified that Gonzalez bought M.G. a cell phone but did not buy one for her. In July 2007, M.G. and her parents had an argument about M.G.'s boyfriend. After the argument, M.G.'s older brother, A.G., wanted to talk to M.G. about the situation. He testified that he and M.G. were close, and he was protective of his younger sisters. M.G. went into A.G.'s room, and he began questioning her. She started crying and told A.G. that their father raped her. At first, A.G. was confused and did not understand what M.G. was saying. When he understood what M.G. was saying, A.G. found his father and confronted him about the allegations. Gonzalez denied the allegations at first and was offended that A.G. would accuse him of raping his daughter, but later, he admitted to touching M.G.'s leg. Later, Gonzalez agreed to talk to Houston Police Officer A. Moreno, an investigator in the juvenile sex crimes unit. Police videotaped the interview. In the interview, Gonzalez admitted to groping M.G.'s breasts and trying to kiss them. He stated that he tried to put his penis between M.G.'s legs, but she locked her legs together. He admitted that he touched her legs with his penis and then he ejaculated. In this same interview, Gonzalez also mentioned that he had been unfaithful to his wife. During the punishment phase of the trial, the State elicited much of the same testimony from M.G., C.G., and A.G. Additionally, during the punishment phase, A.G. testified about Gonzalez's tendency to minimize his actions when accused of wrongdoing. As an example, A.G. testified that Gonzalez had been unfaithful to his wife, but whenever she accused him of being unfaithful, he would act hurt that she would accuse him of such a thing. A.G. further testified that, when he was nine years old, he lived with Gonzalez and his mistress in the United States while his mother and sisters lived in Mexico. During that time, A.G. witnessed a fight between Gonzalez and the mistress which resulted in Gonzalez dragging the woman up a set of stairs in a chokehold.Discussion
Gonzalez alleges that his trial counsel was ineffective. To prevail on a claim of ineffective assistance of counsel, the defendant must show that (1) his counsel's performance was deficient and (2) a reasonable probability exists that the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). The first prong of Strickland requires the defendant to show that counsel's performance fell below an objective standard of reasonableness. Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App. 1999). Thus, the defendant must prove objectively, by a preponderance of the evidence, that his counsel's representation fell below professional standards. Mitchell v. State, 68 S.W.3d 640, 642 (Tex.Crim.App. 2002). The second prong requires the defendant to show a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different absent the deficient performance. See Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; see also Thompson, 9 S.W.3d at 812. In reviewing counsel's performance, we examine the entire representation to determine the effectiveness of counsel, indulging a strong presumption that the attorney's performance falls within the wide range of reasonable professional assistance or trial strategy. Thompson, 9 S.W.3d at 813. Furthermore, a claim of ineffective assistance must be firmly supported in the record. Id. (citing McFarland v. State, 928 S.W.2d 482, 500 (Tex.Crim.App. 1996)). Gonzalez challenges counsel's actions during both the guilt-innocence and punishment phase of the trial. Strickland governs claims of ineffective assistance during the punishment phase. Hernandez v. State, 988 S.W.2d 770, 772 (Tex.Crim.App. 1999). The record here is silent as to counsel's trial strategy. Where the record does not offer an explanation for trial counsel's actions, the reviewing court presumes that counsel made all significant decisions in the exercise of reasonable professional judgment. Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994); Broussard v. State, 68 S.W.3d 197, 199 (Tex.App.-Houston [1st Dist.] 2002, pet. ref'd). Without testimony from trial counsel, we cannot meaningfully address trial counsel's strategic reasons for the actions that Gonzalez alleges constitute ineffective assistance. See Davis v. State, 930 S.W.2d 765, 769 (Tex.App.-Houston [1st Dist.] 1996, pet. ref'd). Even if counsel's actions could not be characterized as reasonable trial strategy, Gonzalez must satisfy the second prong of Strickland, that the outcome probably would have been different. Gonzalez first contends that trial counsel rendered ineffective assistance by failing to use an investigator to find favorable defense witnesses. Counsel asked for investigative funds in the trial court, but the trial record does not show a ruling on that motion. The record contains no evidence as to whether trial counsel used an investigator. Trial counsel applied for subpoenas for eleven different witnesses and, in fact, called Gonzalez's brother as a witness at the punishment hearing. Gonzalez does not point to any available favorable witnesses. Gonzalez, thus, has not established that any particular witnesses were available to testify who would benefited his defense and that counsel failed to call them. See Ex parte White, 160 S.W.3d 46, 52 (Tex.Crim.App. 2004). We therefore hold that Gonzalez failed to meet his burden to show that counsel was ineffective on this ground. Second, Gonzalez complains about counsel's failure during the guilt-innocence phase to object to the admission of, or request a redaction of, the video-tape and transcript of his statement to Officer Moreno, in which Gonzalez admitted that he had been unfaithful to his wife. Even if counsel's failure to object fell below a reasonable professional standard, under the second prong of Strickland, Gonzalez fails to explain how the outcome of his trial would have been different but for the admission of this evidence. Given the testimony of all three of his children regarding Gonzalez's assault of M.G., Gonzalez's admission that he was unfaithful to his wife is unlikely to have affected the jury's determination of Gonzalez's guilt. Gonzalez likewise complains that trial counsel failed to object to the admission of "several bigamy offenses" that the State did not give notice of its intent to introduce during the punishment phase. At the punishment hearing, the trial court admitted two extraneous offenses: a misdemeanor assault and a misdemeanor offense of driving while intoxicated. The State notified Gonzales of its intent to introduce these offenses, and he stipulated to both of them. The State introduced no other extraneous offenses. We thus hold that the record does not support a claim that the State introduced "bigamy" offenses during the punishment phase. Gonzalez next contends that trial counsel was ineffective because she failed to obtain a transcript of the testimony during the guilt-innocence phase for the purpose of impeaching witnesses during the second punishment trial. Gonzalez asserts that, during the guilt-innocence phase of trial, M.G. testified that she scratched and bit Gonzalez while he was raping her, but she did not include those facts in her testimony during the punishment phase of the second trial. Gonzalez also contends that trial counsel should have impeached C.G. because during guilt-innocence she testified that she believed Gonzalez had raped M.G. because of the way that M.G. and Gonzalez behaved after the crime, but during punishment, C.G. said she believed M.G. because M.G. acted as if the rape was real. The record here is silent as to whether or not counsel ordered a trial transcript. Gonzalez has also failed to show it was not reasonable trial strategy for counsel to fail to cross-examine M.G. and C.G. on these statements, as the statements are not notably in contradiction of other testimony. See Heiman v. State, 923 S.W.2d 622, 627 (Tex.App.-Houston [1st Dist.] 1995, pet. ref'd) (holding that it was sound trial strategy to refrain from attacking victim's character with evidence of past sexual behavior because jury might have found strategy repugnant, especially because appellant was victim's father); Hines v. State, 144 S.W.3d 90, 95 (Tex.App.-Fort Worth 2004, no pet.) (holding that it was sound trial strategy for counsel to avoid attacking victim by impeaching her with a prior video-taped statement and to avoid keeping victim on the stand longer than necessary). Next, Gonzalez contends that trial counsel failed to object to the State's comment in its closing argument in the punishment hearing regarding Gonzalez's lack of remorse. During closing argument, the prosecutor said,Remorse. And in this case, there is a complete and utter lack of remorse. He doesn't have any remorse for what he did. I hope you've been watching him throughout the trial because he's had the same blank stare, this look on his face that he has now. As each of his children took the stand, he didn't look upset. He didn't look sad. He's not remorseful about what he did. He tells Officer Moreno, Oh, I felt very bad. I asked my family for forgiveness, but you heard from [M.G.], you heard from [A.G.], that never happened. He never asked them for forgiveness.Gonzalez contends that the prosecutor's statement constitutes a comment on his failure to testify. The State violates a defendant's Fifth Amendment right against compelled self-incrimination by referring to a defendant's invocation of his right not to testify. Canales v. State, 98 S.W.3d 690, 695 (Tex.Crim.App. 2003); Emigh v. State, 916 S.W.2d 71, 73 (Tex.App.-Houston [1st Dist.] 1996, no writ). To be improper, a comment must clearly refer to the defendant's failure to testify. Canales, 98 S.W.3d at 695. The nature of the comment must be either "manifestly intended" or of such a character that it would "necessarily and naturally" direct the jury's attention to the defendant's silence. Id. A comment that, at best, is indirect or allusive does not violate the defendant's Fifth Amendment rights. Id. Here, the prosecutor's statement about remorse does not amount to a comment on Gonzalez's failure to testify. The prosecutor specifically referenced Gonzalez's body language and facial expressions during the trial. He also referred to M.G. and A.G.'s testimony that Gonzalez had never expressed remorse to either of them, and Gonzalez's contradictory statement to Officer Moreno that he was sorry. This left the jury with some basis to determine whether or not Gonzalez was remorseful on the testimony admitted. Thus, we conclude that Gonzalez's counsel's failure to object to the State's argument did not fall below a reasonable professional standard. Finally, Gonzalez contends that his counsel was ineffective because she failed to object to the State's closing argument during punishment about M.G.'s future wedding day. The prosecutor argued,
One day, hopefully, she'll meet the man of her dreams, get married, walk down the aisle . . . [S]he won't have her father giving her away at the wedding. She'll just think about how he raped her. One day maybe she'll have kids of her own, a daughter of her own to look after, and she'll never feel truly safe leaving her alone with her husband because of what happened to her as a little girl.Gonzalez complains that the prosecutor argued about facts not in evidence, and his argument is purely speculative and highly prejudicial because it plays to the emotions of the jury. The prosecutor's argument, however, was based on evidence introduced at the punishment phase from a clinical psychologist that child rape victims have difficulty in their future relationships with a spouse. Gonzalez does not show that the prosecutor's punishment argument was not a reasonable inference from the evidence presented, or that any defense objection to this argument would have been successful.