No. 05-03-00396-CR.
Opinion Filed February 20, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 401st Judicial District Court Collin County, Texas, Trial Court Cause No. 401-80694-02. Affirm.
Before Justices WHITTINGTON, WRIGHT, and LANG.
Opinion By Justice WRIGHT.
Juan Padron Pena appeals his conviction for indecency with a child. After the jury found appellant guilty, it assessed punishment at twenty years' confinement and a $10,000 fine. In two issues, appellant contends (1) he did not receive the effective assistance of counsel at trial; and (2) the evidence is factually insufficient to support his conviction. We overrule appellant's issues and affirm the trial court's judgment.
Background
V.P., who turned fifteen-years-old the week before trial, testified that when she was eleven- or twelve-years-old, she was sleeping in the living room with her mother, three brothers, and appellant, her grandfather. She was on a mattress on the floor with one of her brothers, her other two brothers were on a second mattress, and her mother and grandfather were each on a couch. During the night, she awoke with her hand on appellant's penis and it felt "gooey." When appellant noticed V.P. was awake, he moved her hand away. Several months later, V.P. was in the kitchen when appellant came up behind her and put his hand on her breast. V.P. told her mother, who in turn told V.P.'s aunt. A short time later, V.P.'s aunt notified law enforcement. After police officers interviewed V.P. and appellant, he was charged with two counts of indecency with a child. After hearing this and other evidence, the jury found appellant guilty of the incident involving V.P.'s hand on appellant's penis, and not guilty of the incident involving touching her breast. This appeal followed. Ineffective Assistance of Counsel
In his first issue, appellant contends he did not receive the effective assistance of counsel at trial. In particular, appellant complains of counsel's failure to (1) cross-examine V.P.; and (2) provide him with sufficient information to make an intelligent decision regarding whether to plead guilty or not guilty. To prevail on his claim, appellant must show counsel's representation fell below an objective standard of reasonableness, and there is a reasonable probability the results of the proceedings would have been different in the absence of counsel's errors. Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984); Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim. App. 2002). Appellant has the burden of proving ineffective assistance of counsel by a preponderance of the evidence. Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999). The record must be sufficiently developed to overcome a strong presumption that counsel provided reasonable assistance. See id. at 813-14. Here, although appellant filed a pro se motion for new trial on ineffective assistance of counsel grounds, the trial court did not conduct a hearing on the motion. Thus, although the record shows counsel did not cross-examine V.P. pursuant to appellant's instructions, the record does not show whether or to what extent counsel attempted to convince appellant to cross-examine V.P. Nor does the record indicate how counsel's failure to cross-examine V.P. caused the jury to find appellant guilty. Likewise, the record is silent with respect to what information counsel gave to appellant regarding whether to plead guilty or not guilty. Based on the record before us, we cannot say that appellant has demonstrated by a preponderance of the evidence that counsel was deficient or that, if he was, the outcome of his trial would have been different. We overrule appellant's first issue. Factual Sufficiency
In his second issue, appellant contends the evidence is factually insufficient to support his conviction because V.P.'s version of events is "inconceivable." We disagree. In a factual sufficiency challenge, we view the evidence in a neutral light and reverse only if the evidence supporting guilt is so obviously weak as to render the conviction clearly wrong and manifestly unjust, or if the evidence, although adequate when taken alone, is so greatly outweighed by the overwhelming weight of contrary evidence as to render the conviction clearly wrong and manifestly unjust. Vasquez v. State, 67 S.W.3d 229, 236 (Tex.Crim.App. 2002); Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim. App. 2000). While we have some authority to disregard evidence that supports the verdict, we must be appropriately deferential so as to avoid substituting our judgment for that of the jury. Vasquez, 67 S.W.3d at 236; Wesbrook v. State, 29 S.W.3d 103, 112 (Tex.Crim.App. 2000); Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App. 1997). We should not substantially intrude upon the jury's role as the sole judge of the weight and credibility of witness testimony. Wesbrook, 29 S.W.3d at 112. After reviewing the record under the above standard, we conclude the evidence is factually sufficient to support the jury's determination that appellant was guilty of indecency with a child. Appellant's challenge to the factual sufficiency of the evidence is nothing more than an attack on the credibility determination made by the jury. The jury, not this Court, is the exclusive judge of V.P.'s credibility. By returning a verdict of guilty, the jury necessarily found her credible. We may disagree with the jury's determination only when the record indicates such a step is necessary to "arrest the occurrence of a manifest injustice." Johnson, 23 S.W.3d at 9. After reviewing the evidence in this case, we conclude such a step is not warranted here. Viewing the evidence under the appropriate standard, we conclude the evidence is factually sufficient to support appellant's conviction. We overrule appellant's second issue. Accordingly, we affirm the trial court's judgment.