Opinion
No. 01-10-00098-CR
Opinion issued December 23, 2010. DO NOT PUBLISH. TEX. R. APP. P. 47.2(b).
On Appeal from the 179th District Court Harris County, Texas, Trial Court Case No. 1170295.
Panel consists of Justices JENNINGS, ALCALA, and HIGLEY.
MEMORANDUM OPINION
A jury found appellant, Philippe Rivera, guilty of the offense of attempted sexual assault and assessed his punishment at confinement for twenty years. In three points of error, appellant contends that the evidence is legally and factually insufficient to support his conviction and he received ineffective assistance of counsel at trial. We affirm.
See TEX. PENAL CODE ANN. § 22.011(a) (Vernon Supp. 2010), § 15.01(a) (Vernon 2003).
Background
The complainant testified that on May 26, 2008, she was at her apartment with her boyfriend, Amaury Lugo. After the two began arguing, Lugo told her that he wanted a "separation," and he left the complainant's apartment. Lugo later returned with several family members, including appellant, Lugo's nephew, and they began drinking outside of the apartment. The complainant then telephoned for emergency assistance because she was "bothered" by the group drinking in front of her apartment. Approximately thirty minutes after the group had left the area, near 6:00 or 7:00 p.m., appellant "came knocking at the door." He informed the complainant that Lugo had sent him, so she allowed appellant to enter the apartment. After they sat down in two chairs in the living room and began to have a conversation, appellant put his hands down his pants and began "touching his private" and "masturbating." This infuriated the complainant, who told appellant "not to touch himself" and to respect her because she is "the wife of his uncle." As she "yell[ed] at him, he stood up and pushed" her in her chest area and called her a "bitch." The complainant "landed on [a] chair and the chair fell back," where she landed on the floor. Appellant then pulled her by her feet, "made a knot with the bottom" of her jogging pants, and dragged her through the kitchen, towards her bedroom. He then picked up the complainant and "threw" her over his shoulder. The complainant explained that she fought back because she did "not want [appellant] to touch" her, and she fell on her "knees and elbow." When appellant threw the complainant on her bed, it rolled over, and she "grabbed the phone" to call for emergency assistance. Appellant then pulled the telephone cord out of the wall, and the complainant was unable to complete her call. Appellant, without the complainant's consent, pulled off her pants and underwear as she had dialed for emergency assistance. Appellant, who "did not have his clothes on" at this point, punched the complainant in her face as she was "crossing [her] legs." After appellant separated the complainant's legs, he tried to put his [penis] inside" her vagina, but she "grabbed" his penis and "twisted it." The complainant then reached for the telephone cord and put "it around [appellant's] neck." She then broke free, grabbed a pair of scissors, and tried to stab appellant. The complainant, who was unsure if she had stabbed the appellant, "told [him] that he needed to leave because [she] was going to kill him." Appellant then took his clothes and left the apartment running. Appellant, having left his cellular telephone in the complainant's apartment, returned and "tried to break" her window in order to retrieve the telephone. After appellant yelled that "he was going to kill [the complainant]," she threw his telephone out of the window. The complainant explained that she did not pursue contacting law enforcement that evening because she believed that she might have stabbed appellant. However, later that evening, she did inform her "husband," Lugo, and appellant's mother about the incident, and the next day she reported the incident to law enforcement. The complainant explained that she did not seek medical treatment because she had not been "sexually abused." She further stated that she and Lugo had never reconciled. Houston Police Department Officer T. Jackson testified that on May 27, 2008, the complainant met with him to report the previous day's incident. He noted that she was "upset," and he "could sense a little anger." Jackson found the complainant's statements to be "very consistent." After taking the complainant's statement, Jackson took photographs of her injuries, and he noted injuries "on her elbows and knees, which were pretty consistent with her story," and her bruises "were pretty fresh." Although Jackson attempted to contact appellant, he was unable to do so. Jackson did not attempt to retrieve the telephone cord, scissors, or any other physical evidence from the complainant's apartment. And he did not "remember anything in regards to the cell phone," nor did he include anything in his report about the telephone. Appellant's trial counsel presented the testimony of Flor Deliz Dixon, appellant's aunt, who explained that appellant was at her house in Dickinson, fifty minutes away from the complainant's apartment, at the time of the incident. Dixon stated that on the morning of May 26, 2008, Lugo telephoned Dixon and asked "if he could bring [his] furniture" to her house. She noted that the complainant was always angry with the family and "always fighting with [Lugo]." Lugo rented a truck, and, when he moved his furniture to Dixon's from the complainant's apartment, he was accompanied by Dixon's son, Michael; her brother, Ariel; appellant; and Jonathon. The men brought the furniture to Dixon's house after 5:00 p.m., and "it was dark when they left." She explained that the group left her house after 7:00 p.m. and appellant could not have been at the complainant's apartment around 7:00 p.m. because he was in Dixon's house at that time. Dixon knew the time the men arrived and left because she always cooks at 6:00 p.m. and she wanted the group to leave so she could cook dinner. She remembers that the men left after 7:00 p.m. because she had to "make sandwiches that night." Dixon noted that the complainant and Lugo lived together at the time of trial and, after Lugo moved out, he "moved right back" to living with the complainant. Appellant's trial counsel then presented the testimony of Lugo, who explained that on May 26, 2008, he decided to leave the complainant after fighting with her. He noted that he sometimes lived with the complainant and, at other times, with his sister. At the time of the argument, Lugo had another "girlfriend." After the argument, Lugo took his furniture to the home of his sister, Dixon, and appellant accompanied him to retrieve the furniture and transfer it to Dixon's house. It was dark by the time the men left his sister's house, and they dropped appellant off at Ariel's house, where appellant had a bicycle. After appellant told Lugo that he was going to see a friend, appellant left on his bicycle. Later, Lugo received a telephone call from the complainant, and he could hear "[appellant] banging on the window." Lugo explained that Ariel's house is about five miles from the complainant's apartment and appellant "had enough time to get to [the complainant's] apartment." The next day, Lugo took the complainant, along with appellant's mother, to a police station to report the incident because he "believed" the complainant. He explained that he and the complaint still have a relationship and sometimes he stays with the complainant and other times with his sister. On cross-examination, Lugo admitted that, shortly before testifying, he had "lied" to the prosecutors about his continuing relationship with the complainant, but "not much," "just on that part."Sufficiency of the Evidence
In his first point of error, appellant argues that the evidence is legally insufficient to support his conviction because the "State failed to prove that [he] committed the offense beyond a reasonable doubt." In his second point of error, appellant argues that the evidence is factually insufficient to support his conviction because the evidence, when viewed without the prism of "in the light most favorable to the prosecution," is so weak that the jury's verdict is clearly wrong and manifestly unjust. We review the legal sufficiency of the evidence by considering all of the evidence in the light most favorable to the prosecution to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2788-89 (1979). Our role is that of a due process safeguard, ensuring only the rationality of the trier of facts' finding of the essential elements of the offense beyond a reasonable doubt. See Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988). We give deference to the responsibility of the fact-finder to fairly resolve conflicts in testimony, to weigh evidence, and to draw reasonable inferences from the facts. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). However, our duty requires us to "ensure that the evidence presented actually supports a conclusion that the defendant committed" the criminal offense of which he is accused. Id. We now review the factual sufficiency of the evidence under the same appellate standard of review as that for legal sufficiency. Ervin v. State, No. 01-10-00054-CR, 2010 WL 4619329, at *2-4 (Tex. App.-Houston [1st Dist.] November 10, 2010, no pet. h.) (citing Brooks v. State, 323 S.W.3d 893, 912, 925-26 (Tex. Crim. App. 2010). Under this standard, we are to examine "the evidence in the light most favorable to the prosecution" and determine whether "a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson, 442 U.S. at 318-19, 99 S. Ct. at 2788-89. Evidence is insufficient when the "only proper verdict" is acquittal. Tibbs v. Florida, 457 U.S. 31, 41-42, 102 S. Ct. 2211, 2218 (1982). A person commits the offense of attempted sexual assault if, with the intent to commit sexual assault, he commits an act amounting to more than mere preparation that tends, but fails, to effect the commission of sexual assault. See TEX. PENAL CODE ANN. § 15.01(a) (Vernon 2003). A person commits the offense of sexual assault if he intentionally or knowingly causes the penetration of the anus or sexual organ of another person by any means without that person's consent. Id. § 22.011 (Vernon Supp. 2010). In support of his sufficiency challenge, appellant asserts that "the State's case rests entirely on the credibility of one witness," the complainant, who "lied under oath and was later exposed by the testimony" of her boyfriend, Lugo. He emphasizes that there "was no confession," "no physical evidence offered by the State to verify the complainant's story, (i.e., no phone cord, no scissors, and no D.N.A.)," no photographs of bruises on the complainant's face, and "no medical records to verify the complainant sustained injuries as a result of an altercation." However, the testimony of a single eyewitness is sufficient to support a felony conviction. Lee v. State, 176 S.W.3d 452, 458 (Tex. App.-Houston [1st Dist.] 2004), aff'd, 206 S.W.3d 620 (Tex. Crim. App. 2006); Davis v. State, 177 S.W.3d 355, 359 (Tex. App.-Houston [1st Dist.] 2005, no pet.) (affirming a conviction for aggravated robbery where central issue involved a single witness's credibility); Aguilar v. State, 468 S.W.2d 75, 77 (Tex. Crim. App. 1971) (upholding a conviction for attempted murder where only one witness saw appellant with a gun). Additionally, the testimony of a complainant alone is sufficient to support a conviction for sexual assault. Villalon v. State, 791 S.W.2d 130, 133 (Tex. Crim. App. 1990); Cruz v. State, 238 S.W.3d 389, 395 (Tex. App.-Houston [1st Dist.] 2006, pet. ref'd); Jensen v. State, 66 S.W.3d 528, 534 (Tex. App.-Houston [14th Dist.] 2002, pet. ref'd). Viewing all of the evidence in the light most favorable to the prosecution, the jury was presented with the complainant's testimony about the attempted sexual assault, along with the testimony of several other witnesses. The complainant testified that after she allowed appellant to enter her apartment, appellant began masturbating and, after she expressed her anger, he dragged her across the floor, threw her body over his shoulder, and threw her on her bed. When she fell, her knees and elbow were bruised. She further testified that appellant removed her clothes, punched her in the face, separated her legs, and tried to put his penis inside her vagina. In addition to the complainant's testimony, the jury was provided with the testimony of Officer Jackson, who noted that her injuries were consistent with such an assault, and he took photographs of the injuries. Although appellant's conviction may be upheld solely on the testimony of the complainant, Jackson's photographs provided additional evidence supporting the complainant's testimony. In support of his factual sufficiency challenge, appellant emphasizes that he presented an alibi witness, Dixon, who testified that appellant was at her house during the time of the attempted assault. Dixon did testify that appellant was at her house until after dark on the day of the assault and he could not have committed the assault because he did not leave her house until after 7:00 p.m. Also, although the complainant did testify that she and Lugo had not reconciled, Lugo and Dixon testified that the complainant and Lugo had reconciled. Appellant argues that because Lugo and Dixon's testimony contradicted the complainant's, the complainant must have "lied under oath." However, as noted above, we are now to view the evidence in the light most favorable to the prosecution in addressing appellant's complaint about the factual sufficiency of the evidence. See Ervin, 2010 WL 4619329, at *2-4. Viewing the evidence in the light most favorable to the prosecution, a reasonable trier of fact could have found beyond a reasonable doubt that appellant attempted to sexually assault the complainant. Accordingly, we hold that the evidence is sufficient to support appellant's conviction. We overrule appellant's first and second points of error.Ineffective Assistance of Counsel
In his third point of error, appellant argues that his trial counsel provided him ineffective assistance because he (1) elicited "evidence linking [] appellant to the crime and destroying the alibi defense," (2) failed to "adequately investigate the facts," and (3) failed to object to "inadmissible opinion testimony." To show ineffective assistance of counsel, an appellant must demonstrate that counsel's representation fell below an objective standard of reasonableness based on prevailing professional norms and, but for counsel's errors, there is a reasonable probability that the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 688, 104 S. Ct. 2052, 2064-65 (1984); Andrews v. State, 159 S.W.3d 98, 102 (Tex. Crim. App. 2005). A "reasonable probability" is a probability sufficient to undermine confidence in the outcome. Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). It is appellant's burden to prove a claim of ineffective assistance of counsel by a preponderance of the evidence. Id. at 813; Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002). Appellant must satisfy both prongs of the Strickland test, or the claim of ineffective assistance will fail. See Strickland, 466 U.S. at 700, 104 S. Ct. at 2071; Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001). The assessment of whether a defendant received effective assistance of counsel must be made according to the facts of each case. Thompson, 9 S.W.3d at 813. We must look to the "totality of the representation and the particular circumstances of each case" in evaluating the effectiveness of counsel. Id. In so doing, we must also recognize the strong presumption that trial counsel's performance fell within the wide range of reasonable professional assistance. Strickland, 466 U.S. at 688, 104 S. Ct. at 2065; Thompson, 9 S.W.3d at 813. In the absence of evidence of trial counsel's reasons for the challenged conduct, an appellate court commonly will assume a strategic motivation if any can possibly be imagined, and it will not conclude the challenged conduct constituted deficient performance unless the conduct was so outrageous that no competent attorney would have engaged in it. Garcia, 57 S.W.3d at 440. We will not speculate to find trial counsel ineffective when the record is silent on counsel's reasoning or strategy. Robinson v. State, 16 S.W.3d 808, 813 n. 7 (Tex. Crim. App. 2000). In rare cases, however, the record can be sufficient to prove that counsel's performance was deficient, despite the absence of affirmative evidence of counsel's reasoning or strategy. Id.Introduction of Harmful Evidence and Failure to Investigate
Appellant asserts that his trial counsel, through Lugo, "elicited evidence linking appellant to the crime and destroy[ed] the alibi defense" and his direct examination of Lugo "bolstered, rather than challenged, the prosecution by emphasizing harmful evidence." Appellant complains of the following testimony:[Trial Counsel]: Now, Ariel's house is how far from [the complainant's house?
[Lugo]: 5 miles. It's not far. It's close.
[Trial Counsel]: Okay. And then while you were at Ariel's house, [the complainant] called?
[Lugo]: Yeah. Whenever I left the truck, we went back to Ariel's and I got lost. . . .
[Trial Counsel]: When did [the complainant] call?
[Lugo]: And [the complainant] called and said, Come quick. He wants to break in again. She already got him out.
[Trial Counsel]: So, that was after how much time — after how long that you saw him on his bike?
[Lugo]: I think an hour, much [sic] or less.On cross-examination, Lugo further explained that he had taken appellant to Ariel's because appellant "had something to do" and, approximately thirty minutes later, he saw appellant riding his bike. Lugo agreed that appellant "had enough time to get to [the complainant's] apartment" and appellant "knew she was alone. And [appellant] took advantage." Trial counsel did not object to this testimony. In support of his argument that the questioning of Lugo by his trial counsel "bolstered" the State's case, his trial counsel should not have introduced harmful evidence, and his trial counsel should have made a further investigation, appellant relies on Fernandez v. State, 830 S.W.2d 693 (Tex. App.-Houston [1st Dist.] 1992, no pet.). In Fernandez, however, trial counsel failed to object to hearsay evidence that was not established through any other evidence. Id. at 697. By failing to object to the evidence, trial counsel made "insufficient evidence sufficient." Id. at 698. Further, by allowing the defendant's wife to testify, trial counsel "cured the unpreserved error in admitting the hearsay," and forfeited an instructed verdict. Here, trial counsel did not elicit testimony that made "insufficient evidence sufficient." In support of his assertion that a failure to investigate constitutes ineffective assistance, appellant cites Melton v. State, 987 S.W.2d 72, 77 (Tex. App.-Dallas 1998, no pet.) (holding trial counsel was ineffective for allowing defendant to plead guilty after informing defendant that there may be video of him committing the crime when no video existed and counsel failed to investigate the existence of such video). Here, however, appellant has not provided any evidence of a failure to investigate. In analyzing this issue, we must decide whether any reasonable trial strategy could explain trial counsel's decision to present Lugo's testimony. The decision to present witnesses is largely a matter of trial strategy. Shanklin v. State, 190 S.W.3d 154, 164 (Tex. App.-Houston [1st Dist.] 2005), pet. dism'd, improvidently granted, 211 S.W.3d 315 (Tex. Crim. App. 2007). It is possible that trial counsel could have reasonably believed that Lugo's testimony would contradict that of the complainant's, thus calling into question her credibility. Furthermore, as argued by appellant on appeal, trial counsel could have made the decision to present Lugo's testimony in order to reveal a motive for the complainant "to fabricate the entire incident." In the absence of a record demonstrating trial counsel's reasons for calling a witness and eliciting testimony, we must defer to trial counsel's strategy. Id. Appellant has failed to show that trial counsel's actions were outside the range of reasonable competence. Accordingly, appellant has not demonstrated that counsel's performance was deficient in this regard.
Opinion Testimony
Appellant further asserts that his trial counsel "failed to properly object to inadmissible opinion testimony concerning the complainant's credibility, when the sole issue was her credibility." It is generally improper for a witness to offer a direct opinion as to the truthfulness of another witness and such opinion is therefore inadmissible. See Schutz v. State, 957 S.W.2d 52, 59 (Tex. Crim. App. 1997). This type of testimony is inadmissible "because it does more than 'assist the trier of fact to understand the evidence or to determine a fact in issue'; it decides an issue for the jury." Yount v. State, 872 S.W.2d 706, 709 (Tex. Crim. App. 1993); Blackwell v. State, 193 S.W.3d 1, 21 (Tex. App.-Houston [1st Dist.] 2006, pet. ref'd). This rule applies to expert and lay witness testimony alike. Fisher v. State, 121 S.W.3d 38, 41 (Tex. App.-San Antonio 2003, pet. ref'd). Appellant complains of two instances in which Lugo stated that he believed the complainant. First, on cross-examination, Lugo agreed that he "lied" to the prosecutors when he told them that he was not living with the complainant at the time of trial. In pertinent part, Lugo testified as follows:[The State]: So, were you also lying to us when you told us that you helped her go to the police station and report this case?
[Lugo]: No. I took her with her mom, because her mom told me no. We got to take him. It's hard for me, but he's my son and all that. But he can't do that to somebody else. We got to go turn him in. She asked me to take her with [the complainant] and took her to the station.
[The State]: So, your testimony is that you and [appellant's] own mother took her to the police station to report this crime?
[Lugo]: Yes, ma'am.
[The State]: That's because you believe [the complainant], don't you?
[Lugo]: Yes.
[Trial Counsel]: Objection.
[Trial Court]: He answered already; so, overruled.(emphasis added). Second, the State questioned Lugo about reporting appellant to law enforcement authorities, without objection, in relevant part, as follows:
[The State]: You wanted to report this because you knew it was important, right?
[Lugo]: Yes.
[The State]: You knew he should get in trouble for what he did?
[Lugo]: Uh-huh, it was bad. How about if he went back and found her sleeping or something like or something.
[The State]: So, there's no doubt in your mind that she was telling you the truth?
[Lugo]: Uh-huh, and I even heard him banging on the window when she called me.(emphasis added). Appellant also emphasizes that trial counsel failed to obtain a running objection to Lugo's testimony. Appellant recognizes that there "is nothing in the record explaining [trial] counsel's strategy for allowing into evidence inadmissible hearsay, legal conclusions, speculation and opinion by Amaury Lugo regarding the complainant's truthfulness." However, he asserts that there is "no conceivable strategy or tactic that would justify allowing such inadmissible testimony in front of the jury." See Miller v. State, 757 S.W.2d 880, 884 (Tex. App.-Dallas 1988, pet. ref'd) (holding trial counsel ineffective based on failure to object to State's questions eliciting forensic interviewer's opinion on whether child was, in fact, sexually abused and whether child's report of sexual abuse was truthful; stating that "we can glean no sound trial strategy in defense counsel's failure to object to extensive, inadmissible testimony concerning the only real issue at trial — complainant's credibility"); Lane v. State, 257 S.W.3d 22, 27 (Tex. App.-Houston [14th Dist.] 2008, pet. ref'd) ("[e]ven though there is nothing in the record on appeal explaining [] trial counsel's subjective trial strategy for allowing this testimony into evidence, there is no conceivable strategy or tactic that would justify allowing this inadmissible testimony in front of the jury"); Sessums v. State, 129 S.W.3d 242, 247-48 (Tex. App.-Texarkana 2004, pet. ref'd) (holding that a direct comment on the complainant's truthfulness is absolutely inadmissible and there "is no conceivable strategy or tactic that would justify allowing this testimony in front of a jury"). Here, the sole issue at trial was the credibility of the complainant. The testimony of Lugo constituted a direct opinion on the truthfulness of the complainant, which was inadmissible. See Yount, 872 S.W.2d at 708; Sessums, 129 S.W. 3d at 247. We conclude that, although there is nothing in the record explaining trial counsel's strategy for allowing into evidence testimony by Lugo regarding the complainant's credibility, there is no conceivable strategy or tactic that would justify allowing such inadmissible testimony in front of the jury. See Lane, 257 S.W.3d at 27-28. Having determined that trial counsel's performance was deficient, we consider whether there is a reasonable probability that the result of the proceeding would have been different. See Strickland, 466 U.S. at 687, 694, 104 S. Ct. at 2064, 2068; Andrews, 159 S.W.3d at 101. A "reasonable probability" is a probability sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. Recently, in Lopez v. State, this Court found that the failure to object to inadmissible testimony regarding the credibility of the complainant constituted deficient performance and that there was a reasonable probability that the result of the proceeding would have been different. 315 S.W.3d 90, 101 (Tex. App.-Houston [1st Dist.] 2010, pet. granted). In Lopez, the jury was "exposed to a barrage of inadmissible testimony" concerning the complainant's credibility. Id. at 102. There, four of the State's six witnesses were permitted to testify extensively as to the child complainant's credibility without objection. Id. at 101-02. The jury received testimony from the child's aunt, a representative from the Harris County Children's Assessment Center, the child's school counselor, and a police officer regarding the complainant's credibility. Id. at 98-101. The court concluded that the testimony of the complainant "was bolstered immeasurably by the inadmissible testimony" of the witnesses and that appellant "was prejudiced by the deficiency in counsel's performance." Id. at 102. However, this case is substantively distinguishable from Lopez and the cases cited by appellant in support of his argument that he was prejudiced by his trial counsel's deficient performance. Here, we have the testimony of one defense witness that he "believed" the complainant. We do not have a "barrage" of inadmissible testimony provided by the State in order to support the complainant's credibility. Furthermore, Lugo is a lay witness, who had his own credibility problems. This is not a situation where we have multiple expert witnesses and otherwise credible witnesses testifying as to a child complainant's credibility. Additionally, there is photographic evidence of the complainant's injuries consistent with her rendition of the events and resolution of the credibility issue was not necessarily dependent upon the challenged testimony. See Lane, 257 S.W.3d at 29. The jury was presented with the complainant's testimony, along with the photographic evidence, and Officer Jackson's testimony. We conclude that appellant has not proved that there is a reasonable probability that, but for counsel's deficiency, the result of the trial would have been different. Having failed to establish the second prong of Strickland, we hold that appellant has not established his claim of ineffective assistance of counsel. We overrule appellant's third point of error.