No. 14-07-00336-CR
Opinion filed December 18, 2008. DO NOT PUBLISH — TEX. R. APP. P. 47.2(b).
On Appeal from the 248th District Court Harris County, Texas, Trial Court Cause No. 1063400.
Panel consists of Justices FROST, SEYMORE, and GUZMAN.
KEM THOMPSON FROST, Justice.
Appellant Carlos Antonio Lopez challenges his conviction for aggravated sexual assault of a child, claiming ineffective assistance of counsel. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Appellant was charged with aggravated sexual assault of a child, appellant's daughter. When he pleaded "guilty" to the charges, the trial court reset the case for a pre-sentence investigation. At the pre-sentence investigation hearing, appellant's daughter, the complainant, testified first about living happily with relatives in El Salvador for ten years. At age eleven, she moved to the United States to live with her parents. Describing her life in the United States, the young complainant recounted the multiple occurrences of sexual abuse she suffered at appellant's hands. She described how both of her parents hit her on numerous occasions. The complainant testified that appellant would threaten her with a whipping if the complainant told anyone about the sexual abuse. The complainant described how, on one occasion after the complainant's mother hit her, appellant sexually abused the complainant and threatened that if she screamed, appellant would tell the complainant's mother that the complainant was bad-mouthing her. Appellant's half-sister testified that she lived with appellant when she was a teenager. The half-sister explained that, on several occasions, appellant touched her in bed, and she began locking her bedroom door and did not want to live with him any longer. Appellant's other two sisters recounted how they encountered sexual abuse and violence at the hands of appellant's father when they were children. Appellant's mother testified that appellant witnessed his father's violence towards her and that appellant's father sexually abused one of her daughters. The trial court found appellant guilty as charged and assessed punishment for life in prison. On appeal, appellant now complains of ineffective assistance of counsel. II. ISSUES AND ANALYSIS
In two issues, appellant complains that he received ineffective assistance of counsel. Both the United States and Texas Constitutions guarantee an accused the right to assistance of counsel. U.S. CONST. amend. VI; TEX. CONST. art. I, § 10; TEX. CODE CRIM. PROC. art. 1.051 (Vernon 2005). This right necessarily includes the right to reasonably effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 80 L. Ed.2d 674 (1984); Ex parte Gonzales, 945 S.W.2d 830, 835 (Tex.Crim.App. 1997). To prove ineffective assistance of counsel, appellant must show that (1) trial counsel's representation fell below an objective standard of reasonableness, based on prevailing professional norms; and (2) there is a reasonable probability that the result of the proceeding would have been different but for trial counsel's deficient performance. Strickland, 466 U.S. at 688-92; 104 S. Ct. at 2064-67. Moreover, appellant bears the burden of proving his claims by a preponderance of the evidence. Jackson v. State, 973 S.W.2d 954, 956 (Tex.Crim.App. 1998). In assessing appellant's claims, we apply a strong presumption that trial counsel was competent. Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999). We presume counsel's actions and decisions were reasonably professional and were motivated by sound trial strategy. See Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994). When, as in this case, there is no proper evidentiary record developed at a hearing on a motion for new trial, it is extremely difficult to show that trial counsel's performance was deficient. See Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002). If there is no hearing or if counsel does not appear at the hearing, an affidavit from trial counsel becomes almost vital to the success of an ineffective-assistance claim. Stults v. State, 23 S.W.3d 198, 208-09 (Tex.App.-Houston [14th Dist.] 2000, pet. ref'd). The Court of Criminal Appeals has stated that it should be a rare case in which an appellate court finds ineffective assistance on a record that is silent as to counsel's trial strategy. See Andrews v. State, 159 S.W.3d 98, 103 (Tex.Crim.App. 2005). On such a silent record, this court can find ineffective assistance of counsel only if 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)). Notably, in his motion for new trial, appellant did not complain that he received ineffective assistance of counsel. A. Did appellant receive ineffective assistance of counsel when his trial counsel failed to object to certain testimony?
In appellant's first issue, he complains that he received ineffective assistance of counsel because his trial counsel should have objected in response to the following aspects of the complainant's trial testimony: her happy life in El Salvador without her parents; how her parents did not visit her in El Salvador after they moved to the United States; that her parents required her to do chores and that appellant would hit her if she did not do them; that she received bruises from her parents; that school officials and authorities took her parents to court to stop the beatings; and that her mother would have killed her for telling school officials about the beatings. Appellant also complains his trial counsel should have objected to his half-sister's testimony that appellant touched her when she was fifteen years old. According to appellant, he received no notice of the extraneous-offense evidence of ongoing physical abuse and that none of the complained-of testimony was relevant or admissible under Texas Rules of Evidence 404(b), 403, or 401. As a result, appellant asserts, the cumulative effect of the evidence, when his trial counsel should have objected its admissibility, amounted to error depriving him of effective assistance of counsel. To prevail in his argument, appellant must show not only that his trial counsel's failure to object was error, but also that this error was of such a magnitude as to "undermine confidence in the outcome." See Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. When an appellant claims his trial counsel failed to object to the introduction of extraneous-offense evidence, a claim of ineffective assistance of counsel must fail unless the evidence was inadmissible and admission of the evidence probably affected the outcome of the trial. Cooper v. State, 707 S.W.2d 686, 688 (Tex.App.-Houston [1st Dist.] 1986, pet. ref'd). Failure to object to admissible evidence is not deemed ineffective assistance of counsel. See Johnson v. State, 987 S.W.2d 79, 86 (Tex.App.-Houston [14th Dist.] 1998, pet. ref'd). In this case, the complainant's character evidence, such as her statement about her life in El Salvador or with her parents, was admissible to offer a brief glimpse into her background. See Salazar v. State, 90 S.W.3d 330, 335-36 (Tex.Crim.App. 2002) (concluding no abuse of discretion occurred in allowing evidence of a "glimpse" into a complainant's background and life); Jagaroo v. State, 180 S.W.3d 793, 799 (Tex.App.-Houston [14th Dist.] 2005, pet. ref'd) (holding trial counsel was not ineffective for failing to object to victim impact testimony when admission of evidence in the punishment phase of trial was relevant to sentencing). As for the complainant's testimony regarding the ongoing physical abuse she endured, such testimony was admissible because it was clearly intertwined with the circumstances of the charged offense as evidenced by appellant's threatening to whip her or using the complainant's fear of her mother as a way to take advantage of her sexually. See Johnson, 987 S.W.2d at 86 (holding trial counsel was not ineffective for failing to object to victim impact testimony during the punishment phase when such testimony related to a circumstance of the offense); see also TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3(a) (Vernon 2006) (permitting evidence to be offered as to any matter deemed relevant to sentencing, including the circumstances of the offense for which an accused is being tried). Finally, although the half-sister's testimony may arguably be objectionable as extraneous-offense evidence, the record in this case is silent as to why appellant's trial counsel failed to object; therefore, the record is insufficient to overcome the strong presumption that counsel's actions were part of a strategic plan. See Tong v. State, 25 S.W.3d 707, 713 n. 9 (Tex.Crim.App. 2000). On the record before us, appellant has not rebutted the strong presumption that his trial counsel's failure to object to the testimony was a matter of trial strategy. See Jagaroo, 180 S.W.3d at 799. Accordingly, because appellant has not satisfied the first prong of Strickland's test, we overrule appellant's first issue. B. Did appellant receive ineffective assistance of counsel for his trial counsel's failure to secure expert testimony?
In his second issue, appellant complains that he received ineffective assistance of counsel because his trial counsel should have secured psychological expert evidence to show appellant suffered from the effects of his own father's sexual abuse, which he claims is his only "defense." The record is silent as to trial counsel's decision-making regarding any such mitigation evidence. Nothing in the record addresses whether an expert's testimony as to the sexual abuse, if any, during appellant's childhood would have benefitted appellant or had any effect on the outcome of the proceeding. See LaHood v. State, 171 S.W.3d 613, 623 (Tex.App.-Houston [14th Dist.] 2005, pet. ref'd); Teixeira v. State, 89 S.W.3d 190, 193-94 (Tex.App.-Texarkana 2002, pet. ref'd). If trial counsel's actions in not presenting an expert may have been the result of a tactical decision, and the record contains no specific explanation for counsel's decision, this court cannot conclude counsel was ineffective. On the record before us, appellant has failed to demonstrate that his trial counsel's actions fell below an objective standard of reasonableness in failing to seek expert evidence in this matter. See Rylander v. State, 101 S.W.3d 107, 111 (Tex.Crim.App. 2003). Therefore, appellant has not satisfied Strickland's first prong. See id. Accordingly, we overrule appellant's second issue. Having overruled appellant's two issues, we affirm the judgment of the trial court.