No. 11-07-00062-CR
Opinion filed July 3, 2008. DO NOT PUBLISH. See Tex. R. App. P. 47.2(b).
On Appeal from the 32nd District Court, Fisher County, Texas, Trial Court Cause No. 3255.
Panel consists of: WRIGHT, C.J., McCALL, J., and STRANGE, J.
RICK STRANGE, Justice.
The jury convicted Israel Ramon Jr. of aggravated sexual assault and indecency with a child by contact and assessed his punishment at seventy years confinement for the aggravated sexual assault conviction and twelve years confinement for the indecency conviction. We affirm.
I. Background Facts
Ramon was indicted for aggravated sexual assault of a child, indecency with a child by contact, and indecency with a child by exposure. These allegations were based primarily on the testimony of his oldest daughter, Bonnie Marie Ramon. She accused Ramon of fondling her beginning when she was eight or nine and then starting to place his penis inside her vagina one year later. According to Bonnie, this continued until she moved out of the house at age twenty. Ramon's guilt was vigorously contested. Several friends and family members testified that he never did anything improper to them, or to their knowledge to anyone else, and that they never saw any improper contact between Ramon and his daughters. Ramon's wife, Christie Ramon, disputed Bonnie's allegations, and Ramon testified on his own behalf and denied any improper conduct. The jury convicted Ramon of aggravated sexual assault of a child and indecency with a child by contact. Ramon elected to have the jury assess punishment. He presented several witnesses who advocated for probation, a probation officer to testify about the conditions typically imposed on probationers, and he testified on his own behalf. The jury assessed his punishment at seventy years confinement for the aggravated sexual assault conviction and twelve years confinement for the indecency conviction. II. Issues on Appeal
Ramon challenges his conviction with four issues. He argues that the trial court erred by not sua sponte providing the jury with a reasonable doubt instruction when extraneous offense evidence was offered, that the evidence was legally and factually insufficient to prove his guilt, that trial counsel was ineffective by offering into evidence during the punishment phase of the trial a taped telephone conversation between Ramon and Bonnie, and that he was deprived of a unanimous jury verdict. III. Analysis
A. Was the Trial Court Required to Sua Sponte Provide a Reasonable Doubt Instruction when Extraneous Offense Evidence was Offered During the Guilt/Innocence Phase of the Trial? Ramon was indicted for aggravated sexual assault of a child, indecency with a child by contact, and indecency with a child by exposure. The indictment alleged that each of the charged offenses occurred on or about July 23, 1994. Ramon argues that the State offered extraneous offense evidence by eliciting testimony that he assaulted Bonnie over an eleven-year period of time and that he also assaulted Bonnie's sister, Brenda Ramon. Ramon contends that the trial court was required to sua sponte instruct the jury that, before it could consider this extraneous offense evidence, it must first find that the State had proved those offenses beyond a reasonable doubt. The Texas Court of Criminal Appeals has previously rejected that argument, holding that no duty exists absent a request from defense counsel. See Delgado v. State, 235 S.W.3d 244, 254 (Tex.Crim.App. 2007). Issue one is overruled. B. Was the Evidence Legally and Factually Sufficient? Ramon next contends that the evidence was legally and factually insufficient to support his convictions. 1. Standard of Review. To determine if the evidence is legally sufficient, we review all of the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Jackson v. State, 17 S.W.3d 664, 667 (Tex.Crim.App. 2000). The factfinder is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Adelman v. State, 828 S.W.2d 418, 421 (Tex.Crim.App. 1992). The factfinder may choose to believe or disbelieve all or any part of any witness's testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim.App. 1986). 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). 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. Id. at 414-15. 2. Legal Sufficiency. Bonnie testified that her father started touching her inappropriately when she was eight or nine years old. This continued for approximately one year, and then he began putting his penis into her vagina. At first, he penetrated her from behind, but he later started getting on top of her. Bonnie testified that he continued doing this until she moved out of the house at age twenty. She did not report her father to anyone because she was afraid to do so. Brenda testified that she saw her father doing inappropriate things to Bonnie once on the living room floor. This evidence is legally sufficient. Bonnie's testimony establishes each element of the charged offenses. Ramon argues that there was no evidence of intent to arouse or gratify his sexual desire but acknowledges that intent can be inferred from the defendant's conduct and the surrounding circumstances. See McKenzie v. State, 617 S.W.2d 211, 216 (Tex.Crim.App. 1981). There is no rational explanation for Ramon's conduct other than an intent to arouse or gratify his sexual desire. A reasonable juror could have determined that Bonnie's testimony was credible and, therefore, concluded beyond a reasonable doubt that Ramon was guilty of the charged offenses. See TEX. CODE CRIM. PROC. ANN. art. 38.07 (Vernon 2005) (victim's testimony is sufficient to support a conviction for a sexual offense). 3. Factual Sufficiency. Ramon's factual sufficiency challenge argues that, when the evidence impeaching Bonnie's testimony and his exculpatory evidence is considered, the verdict is contrary to the overwhelming weight of the evidence and is clearly wrong and unjust. Bonnie provided a written statement to law enforcement officers. In that statement, she said that Ramon took the doors off in the house to keep them from hiding things. At trial, she testified that he did not remove any doors. In her statement, Bonnie said her father would get into bed between her and her sister and that he would have sex with both of them. At trial, she testified that she did not know her father was having sex with Brenda until two years ago when Brenda told her so. There were also inconsistencies in Bonnie's description of whom she first talked to about her father's behavior and when she first talked to them. Ramon called several family members who lived with them for some period of time. Each testified that they did not see anything unusual going on between Ramon and Bonnie and that Bonnie never complained to them about being abused. One of Ramon's nieces, who lived with Ramon and his family for several years, testified that her uncle never behaved inappropriately with her. Christie Ramon, Ramon's wife and Bonnie's mother, testified that Bonnie started taking anti-depression medication four years ago in response to her grandfather's death. Christie testified that it was impossible for Ramon to have done what Bonnie alleged because she would have heard or seen something. She blamed Bonnie's allegation on a financial dispute between Ramon and Bonnie's boyfriend. Although we analyze all of the evidence presented at trial, the trier of fact is the sole judge of the facts, the credibility of the witnesses, and the weight given to their testimony. Sharp, 707 S.W.2d at 614. We may not substitute our own judgment for that of the factfinder. Johnson v. State, 23 S.W.3d 1, 12 (Tex.Crim.App. 2000). The jury determined that Bonnie's testimony was credible and that Ramon's was not. We may not alter that assessment because the jury alone determines what weight to place on contradictory testimonial evidence. Cain v. State, 958 S.W.2d 404, 408-09 (Tex.Crim.App. 1997). The Texas Court of Criminal Appeals has held that the victim's testimony alone is sufficient to support a conviction for aggravated sexual assault. Garcia v. State, 563 S.W.2d 925, 928 (Tex.Crim.App. 1978). Ramon correctly points out that he introduced evidence to impeach Bonnie's testimony, that he and other family members contradicted Bonnie's testimony, and that he provided the jury with reasons for determining that her story was implausible. Why the jury rejected Ramon's defense and accepted Bonnie's testimony we do not know, but we cannot say that a rational juror would have been unable to reach this decision. The evidence is factually sufficient, and issue two is overruled. C. Was Counsel Constitutionally Ineffective? Ramon contends that his trial counsel was constitutionally ineffective for offering into evidence during the punishment phase of the trial a recorded telephone conversation between himself and Bonnie. After Bonnie provided law enforcement officers with a statement implicating her father, a Texas Ranger assisted her in an effort to have her father incriminate himself. Bonnie called Ramon, asked him to apologize for having sex with her under the threat of otherwise telling her mother and secretly recorded the entire conversation. The State called Bonnie as a witness during the punishment phase of the trial. During her cross-examination, trial counsel introduced the recorded conversation into evidence and played it for the jury. During that conversation, Ramon repeatedly stated that he did not remember having sex with her and did not remember making her do anything. He apologized numerous times and said that he was bad but did not think he was that bad. Although apologetic, Ramon never admitted to having had sex with Bonnie, and he was skeptical of how that could have happened without him being caught or without her saying anything to anyone. 1. Standard of Review. In order to determine whether Ramon's trial counsel rendered ineffective assistance at trial, we must first determine whether he 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. Strickland v. Washington, 466 U.S. 668 (1984). We must indulge a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance, and Ramon must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Stafford v. State, 813 S.W.2d 503, 508-09 (Tex.Crim.App. 1991). An allegation of ineffective assistance must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson v. State, 9 S.W.3d 808, 814 (Tex.Crim.App. 1999). Under normal circumstances, the record on direct appeal will not be sufficient to show that counsel's representation was so deficient and so lacking as to overcome the presumption that counsel's representation was reasonable and professional. Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002). Rarely will the record on direct appeal contain sufficient information to permit a reviewing court to fairly evaluate the merits of such a serious allegation. Id. 2. Analysis. Ramon contends that the only reason for introducing the recorded conversation was to show his remorse, and he argues that trial counsel was ineffective because the recording was "damning evidence," was inconsistent with his trial testimony where he denied Bonnie's allegations, and would cause any juror with lingering doubt about Ramon's guilt to be moved toward more severe punishment. We disagree with Ramon's assessment of trial counsel's strategy. When counsel offered the recording into evidence, he told the trial court that it was relevant because it showed remorse, but he also said that it went to Bonnie's credibility and that it showed Ramon and Bonnie's state of mind at the time of the offense. During Bonnie's direct examination, she described the impact of Ramon's actions on her life. These included depression and anxiety. Counsel argued that Bonnie did not sound like a depressed, anxious, or frightened person on the recording but like someone able to act in a calculated manner. We recognize that counsel's statements to the trial court were in response to a question concerning the admissibility of the recording and, therefore, do not necessarily reflect his trial strategy. Our inquiry is not why counsel offered the recording but whether this could be considered sound trial strategy. Stafford, 813 S.W.2d at 508-09. Trial counsel's argument for the admission of the recording reflects that it could. Counsel could have also used the recording in an attempt to gain some sympathy for his client or to lessen the jury's sympathy for Bonnie. We disagree with Ramon's description of the recording as damning evidence. Ramon never admitted to doing anything inappropriate with Bonnie. He consistently and repeatedly told her that he did not remember having sex with her, and he was skeptical of her claim. He discussed his recent health problems, was very apologetic, and was courteous throughout the conversation. While Bonnie did not say anything inappropriate or inconsistent with her trial testimony, the fact that she called her father under false pretenses and secretly recorded their conversation could have been viewed negatively by some jurors. Finally, we note that the State did not claim that Ramon confessed during the conversation but argued that "some strange things" were said during the conversation and focused on one statement where Ramon said "[m]aybe I need to go to the penitentiary." That specific statement was taken out of context because it was said with some sarcasm and while essentially denying any improper behavior. Because the use of the recording could be part of a sound trial strategy, Ramon has not shown that his counsel was constitutionally ineffective. Issue three is overruled. D. Was Ramon Deprived of a Unanimous Jury Verdict? Ramon argues that the jury's verdict deprived him of a unanimous verdict as guaranteed by the Texas Constitution. Ramon argues that he was indicted for three incidents alleged to have occurred on or about July 23, 1994, but the State introduced evidence of multiple incidents occurring over an eleven-year period of time. Because the State's case did not focus on any one specific incident, Ramon concludes that the jury could not have unanimously determined that he committed one specific act but may have instead convicted him of being a bad person generally. Ramon directs our attention to Judge Cochran's concurring opinion in Dixon v. State, to highlight the danger that defendants in sexual assault cases involving minors frequently face of not receiving a unanimous verdict. Judge Cochran warned that our legal system is headed for a "train wreck" because our penal statutes are intended to prosecute a person for committing one discrete criminal offense at one discrete moment in time but sexual assault cases with minor victims frequently involve allegations of generic, undifferentiated, and ongoing acts of abuse. 201 S.W.3d at 737. Judge Cochran suggested that the legislature consider adopting a new penal statute that focused on a continuing course of conduct. Id. We note that despite her concerns, Judge Cochran joined the majority opinion. In the absence of intervening legislative action, the majority's opinion represents the law that we must follow. In Dixon, the victim was six years old at the time of the abuse and seven years old at the time of trial. Id. at 731. She testified that her uncle assaulted her 100 times. One time occurred during the day and the rest at night. She did not otherwise distinguish between the incidents but described each one as involving the same conduct. Id. at 731-32. The defendant unsuccessfully requested that the State elect upon which incident it would rely. The court of appeals held this was error because, in part, it deprived the defendant of a unanimous verdict. Dixon v. State, 171 S.W.3d 432, 436 (Tex.App.-Houston [14th Dist.] 2005, no pet.). The Court of Criminal Appeals disagreed. The court noted that the case did not present allegations of different activities with evidence from different sources. The incriminating evidence came from one source and involved one sequence of events. The court concluded that the victim was either credible or she was not. Dixon, 201 S.W.3d at 735. A similar situation was present here. Bonnie testified to an eleven-year period of abuse. There were some differences in conduct over that time, but the differences represent more of an evolution than distinct and separate incidents. Bonnie testified that her father initially fondled her but later started penetrating her; that, at first, he penetrated her from behind but eventually started getting on top of her; and that, when the abuse first started, she and Brenda shared a room but that she later got her own room. The only corroborating evidence came from Brenda who testified that she saw Ramon fondle Bonnie once. Just as in Dixon, the jury either believed Bonnie or it did not. There is no meaningful distinction between the allegations that would allow some jurors to believe one incident occurred but another did not, while allowing other jurors to reach an opposite conclusion. The jury's verdict indicates that it unanimously found Bonnie's allegations credible. Issue four is overruled. IV. Holding
The judgment of the trial court is affirmed.