No. 13-05-00362-CR
Memorandum Opinion Delivered and Filed July 6, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 103rd District Court of Cameron County, Texas.
Before Justices HINOJOSA, RODRIGUEZ, and GARZA.
Memorandum Opinion by Justice HINOJOSA.
A jury found appellant, Rodolfo Perales, a/k/a Rudy Perales, a/k/a Rodolfo Rodriguez Perales, guilty of two counts of the offense of aggravated sexual assault of a child, and the trial court assessed his punishment at fifty years' imprisonment for each count, to be served concurrently. In three issues, appellant contends (1) the trial court erred in designating the outcry witness, and thus admitted hearsay, (2) the trial court erred in allowing the State to produce evidence that appellant failed to make a statement to the police after his arrest, and (3) trial counsel was ineffective. We affirm.
A. WITNESS TESTIMONY 1. Standard of Review
We review a trial court's decision to admit evidence under an abuse of discretion standard. See, e.g., Montgomery v. State, 810 S.W.2d 372, 379-80 (Tex.Crim.App. 1990). A trial court abuses its discretion when it acts "without reference to any guiding rules and principles." Id. at 380 (quoting Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985)). In other words, the court abuses its discretion when it acts arbitrarily or unreasonably. Id. Moreover, the fact that a trial court may decide a matter within its discretionary authority in a different manner than an appellate court does not mean there is an abuse of discretion. Id. at 241-42. Finally, if the trial court's ruling on the admission of evidence can be correct under any theory of law, then the decision cannot be overruled, even if the trial court gave an erroneous reason for its ruling. TEX. R. APP. P. 44.2(a); see Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App. 1990). 2. Testimony Regarding Outcry Witness
In his first issue, appellant contends the trial court erred in allowing the hearsay testimony of Harlingen Police Officer Miryam Anderson. Specifically, appellant complains of the following testimony: Prosecutor: What was the purpose of interviewing the aunt?
Anderson: He had made an outcry to the aunt about his sexual abuse. He had told her what Perales had done to him.
It is a well-settled principle that to preserve error for review on appeal, a defendant must object timely, specifically, and receive an adverse ruling at trial. TEX. R. APP. P. 33.1(a); Turner v. State, 805 S.W.2d 423, 431 (Tex.Crim.App. 1991). The objecting party must continue to object each time the objectionable evidence is offered. Fuentes v. State, 991 S.W.2d 267, 273 (Tex.Crim.App. 1999). In the absence of any objection and a ruling on the objection, error is not preserved. See TEX. R. APP. P. 33.1(a). In this case, trial counsel did not object to the prosecutor's question or Anderson's answer. Thus, error is not preserved for our review. Also in his first issue, appellant contends the trial court erred in allowing the victim's aunt to testify as the outcry witness because the victim first mentioned the abuse to his mother. An outcry statement is "made to the first person, 18 years of age or older, other than the defendant, to whom the child made a statement about the offense." TEX. CODE CRIM. PROC. ANN. art. 38.072 § 2(a)(2) (Vernon Supp. 2005). An "outcry" statement is an exception to the hearsay rule. Id. § 2(b). The outcry witness is the person to whom the child first makes a statement that in some discernible manner describes the alleged offense. Garcia v. State, 792 S.W.2d 88, 91 (Tex.Crim.App. 1990). The outcry statement must be more than words which give a general allusion that something in the area of child abuse was going on. Id. The victim's mother testified that she questioned the victim after she became concerned about his age-inappropriate behavior. Although she testified that the victim told her what had happened, the record does not disclose what he actually said. The victim's mother also testified that soon after her son began to describe the events, she became overwhelmed, stopped the conversation, and took him to her sister's house. In order to be designated as the outcry witness, it must be clearly shown by the evidence that the victim described the offense to that witness. Garcia, 792 S.W.2d at 91. The victim's aunt testified that the victim described to her in detail how appellant had abused him and pointed to the specific body part where appellant had abused him. It was within the discretion of the trial court to have found that the victim's statements to his mother amounted to a general allusion of the incident because the victim did not describe the abuse in detail to her. It was further within the discretion of the trial court to have determined that the victim's statements to his aunt were so detailed as to amount to more than a general allusion. Accordingly, we conclude the trial court did not abuse its discretion in allowing the victim's aunt to testify as the outcry witness.
Appellant's first issue is overruled. 2. Testimony on Appellant's Decision to Remain Silent
In his second issue, appellant contends the trial court erred (1) in allowing testimony to be presented that may have amounted to a comment on his right to remain silent, and (2) in refusing to grant a mistrial. Constitutional guarantees may be forfeited by the failure to raise a timely, specific objection. See Saldano v. State, 70 S.W.3d 873, 887 (Tex.Crim.App. 2002) (finding waiver of Fourteenth Amendment right). Nonetheless, in a criminal case, Texas Rule of Evidence 103(d) authorizes us to take notice of fundamental errors affecting substantial rights although they were not brought to the attention of the court. TEX. R. EVID. 103(d). "Some rights are widely considered so fundamental to the proper functioning of our adjudicatory process as to enjoy special protection in the system." Blue, 41 S.W.3d at 131. A principal characteristic of these rights is that they cannot be forfeited or extinguished by inaction alone. Id. Instead, an accused must expressly relinquish a fundamental right. Id. However, the right to remain silent is not so fundamental as to require the special protection of relieving the appellant of the necessity of an objection. Wheatfall v. State, 882 S.W.2d 829, 836 (Tex.Crim.App. 1994); Smith v. State, 721 S.W.2d 844, 855 (Tex.Crim.App. 1986). Objection is required to preserve the issue. Wheatfall, 882 S.W.2d at 836. Appellant contends the trial court erred in allowing Officer Horacio Ramirez to testify that after appellant was arrested, Officer Ramirez asked appellant if he wished to give a statement and appellant declined. The record shows that appellant's counsel did not object to this testimony. Therefore, error is not preserved for our review. See TEX. R. APP. P. 33.1. Appellant's second issue is overruled. B. INEFFECTIVE ASSISTANCE OF COUNSEL
In his third issue appellant asserts he received ineffective assistance of counsel because his trial counsel failed to object to (1) Officer Anderson's hearsay statement, (2) Anderson's testimony regarding the outcry witness because it violates the confrontation clause, and (3) the testimony of Officer Ramirez. We adhere to the United States Supreme Court's two-pronged test to determine whether counsel's representation was so inadequate that it violated appellant's Sixth Amendment right to counsel. Strickland v. Washington, 466 U.S. 668, 687-88 (1984); Hernandez v. State, 726 S.W.2d 53, 55 (Tex.Crim.App. 1986); Munoz v. State, 24 S.W.3d 427, 433 (Tex.App.-Corpus Christi 2000, no pet.). Allegations of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. McFarland v. State, 928 S.W.2d 482, 500 (Tex.Crim.App. 1996). First, the appellant must show that counsel's performance was deficient; in other words, that counsel's assistance fell below an objective standard of reasonableness. Hernandez, 726 S.W.2d at 55. The deficiency must be of the extent that counsel failed to function as counsel. Yates v. State, 917 S.W.2d 915, 920 (Tex.App.-Corpus Christi 1996, pet. ref'd). Second, the appellant must prove that "the deficient performance prejudiced the defense" by "a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different." Munoz, 24 S.W.3d at 433. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 693; Hernandez, 726 S.W.2d at 55. "Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim." Strickland, 466 U.S. at 700. Appellant bears the burden of proving by a preponderance of the evidence that counsel was ineffective. Stafford v. State, 813 S.W.2d 503, 506 (Tex.Crim.App. 1991). In the absence of evidence of counsel's reasons for the challenged conduct, we will assume a strategic motivation and will not conclude that the conduct was deficient unless the conduct was so outrageous that no competent attorney would have engaged in it. Garcia v. State, 57 S.W.3d 436, 440 (Tex.Crim.App. 2001); Thompson, 9 S.W.3d at 814; see Aldrich v. State, 104 S.W.3d 890, 896 (Tex.Crim.App. 2003) ("Appellate courts can rarely decide the issue of unreasonable performance because the appellate record rarely speaks to the strategic reasons that counsel may have considered."). There is a rebuttable presumption that counsel is better positioned than the appellate court to judge the pragmatism of the particular case and that counsel made all significant decisions in the exercise of reasonable professional judgment. Delrio v. State, 840 S.W.2d 443, 447 (Tex.Crim.App. 1992). The presumption may be rebutted by evidence of counsel's reasoning or lack thereof. See Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994). The most effective way to demonstrate ineffective assistance of counsel is by presenting evidence at a hearing on a motion for new trial. See generally McCain v. State, 995 S.W.2d 229, 245 (Tex.App.-Houston [14th Dist.] 1999, pet. denied). The record reflects that appellant did not file a motion for new trial. Thus, the record contains no evidence demonstrating counsel's reasoning or lack thereof. Consequently, appellant's allegations of ineffectiveness are not firmly founded in the record, and the record does not affirmatively demonstrate the alleged ineffectiveness. McFarland, 928 S.W.2d at 500. Accordingly, we hold that appellant has not sustained his burden of proving his ineffective assistance claims by a preponderance of the evidence. Appellant's third issue is overruled. The judgment of the trial court is affirmed.