Opinion
No. 11-06-00321-CR
Opinion filed July 10, 2008. DO NOT PUBLISH. See Tex. R. App. P. 47.2(b).
On Appeal from the 42nd District Court Taylor County, Texas, Trial Court Cause No. 22,051-A.
Panel consists of: WRIGHT, C.J., McCALL, J., and STRANGE, J.
MEMORANDUM OPINION
The jury convicted Roderick Rene Mirelez of aggravated sexual assault of a child, and the trial court assessed his punishment at confinement for fifteen years. We affirm. In four counts in the indictment, the State alleged that appellant, on or about April 27, 2003, committed the offense of aggravated sexual assault of his girlfriend's seven-year-old daughter by the following various manner and means: by penetrating the victim's sexual organ with his sexual organ, by penetrating the victim's sexual organ with his finger, by penetrating the victim's sexual organ with his tongue, and by causing his sexual organ to penetrate the victim's mouth. In its charge, the trial court submitted the counts in the disjunctive to the jury, and the jury unanimously found appellant guilty of aggravated sexual assault as alleged in the indictment. In his first issue on appeal, appellant challenges the factual sufficiency of the evidence to support the conviction. Appellant contends that there is factually insufficient evidence to support each of the four various manner and means of committing the aggravated sexual assault alleged in the indictment. Appellant argues that his testimony that he did not commit the sexual assault and his specific testimony denying each alleged manner and means, together with the inconsistencies in the victim's testimony and her brother's testimony, result in factually insufficient evidence to support the conviction. To determine if the evidence is factually sufficient, the appellate court reviews all of the evidence in a neutral light. Watson v. State, 204 S.W.3d 404, 414 (Tex.Crim.App. 2006) (overruling in part Zuniga v. State, 144 S.W.3d 477 (Tex.Crim.App. 2004)); Johnson v. State, 23 S.W.3d 1, 10-11 (Tex.Crim.App. 2000); Cain v. State, 958 S.W.2d 404, 407-08 (Tex.Crim.App. 1997); Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). Then, the reviewing court determines whether the evidence supporting the verdict is so weak that the verdict is clearly wrong and manifestly unjust or whether the verdict is against the great weight and preponderance of the conflicting evidence. Watson, 204 S.W.3d at 414-15; Johnson, 23 S.W.3d at 10-11. Because in the charge the trial court did not ask the jury to choose between the four manner and means alleged, we must review the evidence in a neutral light to determine if there is factually sufficient evidence to support each manner and means. The record reflects that the victim was seven at the time the offense was alleged to have occurred and that law enforcement officials were able to date the offense because the victim knew it occurred around the time the apartment complex she lived in had burned on April 27, 2003. The victim testified that she was ten years old at the time of trial. She stated that she "tried to forget some of this." When she was seven, she lived at the 2121 Apartments with her mother, her older brother, her younger sister, her younger brother, and appellant. The victim stated that appellant had sexually assaulted her before the apartments burned down. She testified how appellant would come into her bedroom at night and put his hands "down there" in her "privates." The victim said that the private part was "below" the stomach and that her vagina was the same thing as her private part. Appellant would touch her and then "stick" his hand "inside" of her. The victim stated that "it got worse." Appellant would put his private part in her private part and hurt her. The victim testified that "his male thing" was appellant's private part and that she knew the word "penis." Appellant's penis was what he put inside her private part. When he did this, she tore and bled. When asked if his finger and penis were the only two things appellant put inside her private part, she answered, "No." The victim stated, "He used to put his face down there too." He would put his mouth on her private, and he would put his private part in her mouth. The victim stated that sometimes, if she would roll over "tight" in her blankets or act like she was waking up, appellant would stop. However, he did not always stop. The victim stated that she did not try to stop appellant because she was scared. When her older brother found out, she had him keep it a secret because she did not want appellant to hurt their mother or her. The victim stated that one time she had gone to the doctor because it hurt when she went to the rest room after appellant had touched her. The doctor had asked her if anyone was "messing with" her. She answered "no" because she was afraid that appellant would hurt her mother and her. The victim testified that they moved after the fire and that "it" slowed after that. Her older brother "broke the secret" later after their mother had "kicked" appellant out. She was afraid even then that appellant would "come back" and hurt them. She did not remember telling her older brother about what had happened, and she could not remember what appellant's tattoos looked like or if he had had facial hair. R.I.P. testified that he was the victim's older brother, that she was just "a little bit" younger than him, and that he was eleven years old at the time of trial. R.I.P. stated that he decided to tell their mother what had happened when he saw a little girl on the " America's Most Wanted" television show who had the same thing happen to her. He told because he just "couldn't take it no more." The victim had wanted him to keep it a secret because she was embarrassed. R.I.P. stated that, before the fire when they were living in the apartments with appellant, the victim had told him that appellant was touching her. R.I.P. would spy on appellant to try to protect the victim from appellant. One time when appellant was on top of the victim, R.I.P. saw appellant get up off of her and saw that appellant's penis was "standing up" and coming out of his boxer shorts. R.I.P. stated he saw "this" happen six or seven times. Judy LaFrance testified that she was a certified sexual assault nurse examiner. She had examined the victim when the victim was nine years old, two years after the alleged assault. When LaFrance used anatomically correct dolls with the victim, the victim had no confusion about body parts. The victim told LaFrance that there had been both oral penetration and other penetration of her female sexual organ. LaFrance also performed a physical examination on the victim. The victim had given no history of menstruation, and her exam confirmed that the victim was not having periods. There was no evidence of estrogen production. LaFrance observed and photographed two "well-healed lacerations" in the victim's hymen. LaFrance stated that estrogen production would have made the victim's hymen "very elasticized." Both lacerations were consistent with the victim's history. There were no injuries to the victim's outer genitalia, which was also consistent with the victim's history and the well-healed lacerations of her hymen. Appellant testified that he had never penetrated the victim's female sexual organ with his male sexual organ, his finger, or his tongue and that he had never caused his male sexual organ to penetrate the victim's female sexual organ. Appellant repeatedly and adamantly denied all the allegations in the indictment. Appellant testified in detail how and why he did not talk to the investigating officer about these allegations. Appellant maintained his innocence, stated that he had had no reason to deny any allegations prior to trial because he had not committed the alleged acts, and testified that the reason he had not returned the investigating officer's phone calls was because he was innocent and his attorney had advised him not to answer any question unless counsel was present. Appellant stated that the inconsistencies between his testimony and the testimony of the State's witnesses were due to "some conspiracy" against him and maintained that the other witnesses were either wrong or lying. The jury, as the finder of fact, was the sole judge of the weight and credibility of the witnesses' testimony. TEX. CODE CRIM. PROC. ANN. art. 36.13 (Vernon 2007), art. 38.04 (Vernon 1979). We review the factfinder's weighing of the evidence and cannot substitute our judgment for that of the factfinder. Cain, 958 S.W.2d at 407; Clewis, 922 S.W.2d at 133. Due deference must be given to the factfinder's determination, particularly concerning the weight and credibility of the evidence. Johnson, 23 S.W.3d at 9; Jones v. State, 944 S.W.2d 642 (Tex.Crim.App. 1996). This court has the authority to disagree with the factfinder's determination "only when the record clearly indicates such a step is necessary to arrest the occurrence of a manifest injustice." Johnson, 23 S.W.3d at 9. After reviewing the record in a neutral light, we find that the evidence is factually sufficient. A reasonable jury could have reconciled the victim's testimony (that she did not tell her brother what had happened and that her brother just figured it out) with her brother's testimony (that the victim had told him what had happened) and found appellant guilty as charged. Likewise, a reasonable jury could have rejected appellant's claim of innocence and convicted him of the offense based upon the evidence presented by the State. The evidence supporting the verdict is not so weak that the verdict is clearly wrong and manifestly unjust, and the verdict is not against the great weight and preponderance of the conflicting evidence. The first issue is overruled. Next, appellant contends that the trial court erred by dismissing a prospective juror who had neither been challenged for cause nor struck by appellant or the State. Appellant contends that Prospective Juror No. 13 was improperly excluded, resulting in Prospective Juror No. 35 being sworn in on the panel to appellant's detriment. Appellant raised this contention in an amended motion for new trial. At the hearing on his motion, appellate counsel called trial counsel as a witness. Trial counsel testified that he did not strike the prospective juror. Trial counsel stated that neither side had challenged the prospective juror for cause. Trial counsel explained that he had turned his strike list in to the trial court and never saw the State's strike list. When Prospective Juror No. 13 did not serve, trial counsel assumed that the State had struck him. After the original motion for new trial was filed, trial counsel saw the State's strike list and concluded that the State had not struck Prospective Juror No. 13 because there was a line drawn through the numeral thirteen but not all the way through the name. Trial counsel concluded that Prospective Juror No. 13 was "cut inadvertently." The trial court stated at the hearing that its practice was not to look at each strike list and compare them but to have each attorney call out the strikes in chambers. The trial court would then note the strikes on a list and read the remaining names to the attorneys as the names of those who would be serving on the jury. The trial court noted that the parties had their strike list with them in chambers during this process and that the attorneys could view any strike list. The trial court stated that he marked through Prospective Juror No. 13's name and put an "S" beside the name because the State read the number off as a prospective juror it wished to strike. The record before this court does not support appellant's contentions. The second issue is overruled. In his last issue, appellant contends that he was denied the effective assistance of counsel at trial. Appellant bases this claim on his assertion in his second issue that a prospective juror was improperly excused and on trial counsel's failure to object to the State's cross-examination of him concerning his post-arrest silence and his right against self-incrimination. In order to determine whether appellant's trial counsel rendered ineffective assistance at trial, we must first determine whether appellant has shown that counsel's representation fell below an objective standard of reasonableness and, if so, then determine whether there is a reasonable probability that the result would have been different but for counsel's errors. Wiggins v. Smith, 539 U.S. 510, 520 (2003); Strickland v. Washington, 466 U.S. 668, 690 (1984); Andrews v. State, 159 S.W.3d 98, 101 (Tex.Crim.App. 2005); Hernandez v. State, 988 S.W.2d 770 (Tex.Crim.App. 1999). We must indulge a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance, and appellant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002); Stafford v. State, 813 S.W.2d 503, 508-09 (Tex.Crim.App. 1991). We have already determined that the record does not support the contention that the prospective juror was improperly dismissed. Therefore, appellant has not established that trial counsel's representation fell below an objective standard of reasonableness with regard to jury selection. As to appellant's other objections, appellant has not overcome the presumption that trial counsel's actions were based upon sound trial strategy. Appellant consistently claimed that he was innocent. His insistence that he had no need to deny or to confront the allegations before trial was consistent with his claim of innocence. In fact, appellant explained that he had had no "need" to express his innocence prior to the time of trial because he was innocent. The record supports the presumption that, under the facts of this case, trial counsel was proceeding with appellant's claims of innocence as part of his sound trial strategy. The third issue is overruled. The judgment of the trial court is affirmed.