Nos. 05-04-01419-CR, 05-04-01420-CR
Opinion Filed October 31, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court, No. 2, Dallas County, Texas, Trial Court Cause Nos. F03-37829 and F03-73830. Affirm.
Before Justices FITZGERALD, LANG-MIERS, and MAZZANT.
Opinion By Justice FITZGERALD.
A jury convicted Javier Montanez Moreno of indecency with one child by contact and aggravated sexual assault of a second child. The trial court assessed punishment at twenty-five years' confinement for each of the two offenses. On appeal, Moreno argues there is legally and factually insufficient evidence to support his conviction for aggravated sexual assault. He also complains that the trial of the two offenses included jury charge error and that he received ineffective assistance of counsel. We affirm the trial court's judgment.
This offense forms the basis of trial cause number F03-73829 and appellate cause number 05-04-01419-CR.
This offense forms the basis of trial cause number F03-73830-PI and appellate cause number 05-04-01420-CR.
Background
The child-complainants in this case were sisters, ten and eleven years old at time of trial. The girls testified, describing conduct that purportedly occurred at least a year before trial. At that time, the girls and their mother lived with the girls' grandmother. Their grandmother was engaged to Moreno, and he would spend one or more nights at the house each week. One sister testified that Moreno touched her breasts on a number of occasions. The other sister testified Moreno touched her breasts and that he touched and digitally penetrated her "private part." The State called the outcry witness (a friend of the girls' mother) and the girls' mother; both testified to what the girls had told them about the alleged abuse. Finally, the State called witnesses who testified concerning the investigation of the girls' charges. The testimony of these witnesses provides the basis for Moreno's complaint of ineffective assistance of counsel, and it is discussed in more detail below. When the State rested, the defense called a series of witnesses, including members of Moreno's family and counselors from the girls' school. The girls' grandmother testified that Moreno was never alone with the girls and so could not have abused them. Moreno testified and denied all allegations made by the girls against him. The jury found Moreno guilty on both charges. The trial court assessed his punishment at twenty-five years' imprisonment for each offense. Moreno appeals. Sufficiency of the Evidence of Aggravated Sexual Assault
In the aggravated sexual assault indictment, Moreno was charged with intentionally and knowingly causing the penetration of the female sexual organ of one child-complainant with his finger. The gist of Moreno's sufficiency complaint is that the State did not establish that the child's testimony concerning what she called her "private part" referred to her sexual organ. In a legal sufficiency review, we view all of 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). In a factual sufficiency review, we view all of the evidence in a neutral light, and we determine whether the evidence of appellant's guilt, taken alone, is too weak to support the finding of guilt beyond a reasonable doubt, or the evidence contrary to the verdict is so strong that the beyond-a-reasonable-doubt standard could not have been met. Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex.Crim.App. 2004). The court of criminal appeals has stated that "we cannot expect the child victims of violent crimes to testify with the same clarity and ability as is expected of mature and capable adults." Villalon v. State, 791 S.W.2d 130, 134 (Tex.Crim.App. 1990). Accordingly, Texas cases regularly uphold convictions although the child-complainant's language is childlike rather than technical or sophisticated. See, e.g., id. at 134-35 (reference by child to "where I pee" sufficient, with use of anatomically correct dolls, to identify her sexual organ). "Where the child has sufficiently communicated to the trier of fact that the touching occurred to a part of the body within the [statutory definition], the evidence will be sufficient to support a conviction regardless of the unsophisticated language that the child uses." Williams v. State, 911 S.W.2d 788, 790 (Tex.App.-San Antonio 1995, no pet.). In this case, the child-complainant testified that Moreno touched her skin with his hand. She said Moreno "jiggled" his fingers inside her "private part." She marked an anatomical drawing, indicating Moreno had touched her between her legs. We conclude the evidence in this case was sufficient for a rational trier of fact to have believed that the element of the penetration of the child's sexual organ was established beyond a reasonable doubt. See Villalon, 791 S.W.2d at 135. We further conclude that the evidence of penetration of the child's sexual organ, taken alone, is not too weak to support the finding of guilt beyond a reasonable doubt, and the evidence contrary to the verdict is not so strong that the beyond-a-reasonable-doubt standard could not have been met. See Zuniga, 144 S.W.3d at 484-85. We overrule Moreno's first and second issues in the aggravated sexual assault case. Definition of Reasonable Doubt
Moreno complains the trial court erred by instructing the jury that "[i]t is not required that the prosecution prove guilt beyond all possible doubt; it is required that the prosecution's proof excludes all 'reasonable doubt' concerning the defendant's guilt." Moreno argues this instruction constitutes a definition of reasonable doubt and therefore violates the Texas Court of Criminal Appeals's holding in Paulson v. State, 28 S.W.3d 570, 573 (Tex.Crim.App. 2000). We have previously addressed and rejected this precise argument. See O'Canas v. State, 140 S.W.3d 695, 702 (Tex.App.-Dallas 2003, pet. ref'd). We decline the invitation to decide the issue differently in this case. We overrule Moreno's first issue in the indecency-with-a-child case and his third issue in the aggravated sexual assault case. Ineffective Assistance of Counsel
Moreno complains that he received ineffective assistance of counsel during the guilt-innocence portion of his trial because his counsel failed twice to object to testimony specifically opining that the child-complainants were credible. We disagree. Detective Bobby Wychopen of the Dallas Police Department testified that he was assigned to the Child Exploitation Section of the department. Those officers are assigned to do follow-up investigations when a charge of sexual offense is made by a child against a non-family member. Wychopen investigated the charges made against Moreno by the sisters in this case. Wychopen made arrangements, through the girls' mother, to have the girls brought in for interviews at the Dallas Children's Advocacy Center (the "DCAC"). The DCAC is a non-profit agency that works with the Dallas police to provide a setting for fact-finding interviews of children who may have been abused or may have witnessed a crime. Wychopen testified that he observed the complainants' interviews and that, based on those interviews, he filed the cases against Moreno. The district attorney asked Wychopen why he filed the cases. Wychopen testified he had filed them "[b]ecause, in [his] opinion, the children were being truthful." Counsel for Moreno did not object to this testimony. When Detective Wychopen finished testifying, the State called Lori Langston. Langston testified that she was the lead forensic interviewer at the DCAC. She conducted the interviews of both sisters. Langston testified that she had previously conducted approximately 1700 forensic- or fact-finding-interviews of children. Based on her experience and training, Langston testified there were certain clues that would suggest a child she was interviewing had been coached. Langston was asked whether she had observed any such clues in these two interviews, and she said she had not. The district attorney then asked Langston what the absence of such clues indicated to her, and she responded: "That these children were credible and they provided detailed information." Again, counsel for Moreno did not object. To prevail on his ineffective assistance of counsel claim, Moreno must prove by a preponderance of the evidence that (1) counsel's representation fell below an objective standard of reasonableness, and (2) there is a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687-88, 695 (1984); Hernandez v. State, 988 S.W.2d 770, 772 (Tex.Crim.App. 1999). He must establish that there is, in fact, no plausible professional reason for a specific act or omission. See Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002). In most cases, a silent record which provides no explanation for counsel's actions will not overcome the strong presumption of reasonable assistance. Thompson v. State, 9 S.W.3d 808, 813-14 (Tex.Crim.App. 1999). In this case, Moreno did not raise ineffective assistance of counsel in a motion for new trial. Thus, as in Thompson, the record provides no discernible explanation of the motivation behind counsel's decision not to object to the testimony at issue. This failure could have been the result of strategic design. Consequently, we conclude the record is insufficient to support Moreno's complaint on direct appeal. We overrule his second issue in the indecency-with-a-child case and his fourth issue in the aggravated sexual assault case. Conclusion
We have overruled each of Moreno's issues in both of his appeals. Accordingly, we affirm the trial court's judgments in both appeals.