Opinion
No. 05-09-00266-CR
Opinion issued July 28, 2010. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the 265th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F07-33186-R.
Before Justices MORRIS, MOSELEY, and LANG.
OPINION
At trial, Santos Alejandro Rivera pleaded guilty to aggravated sexual assault of a child, and a jury sentenced him to life imprisonment. He now complains he received ineffective assistance of counsel. We affirm the trial court's judgment.
Factual Background
Appellant anally assaulted a twenty-three-month old child while he was babysitting him. The trauma from appellant's penis left the toddler's anus stretched to over one inch in diameter, and the bruising the child sustained extended approximately four inches into his rectum. For months after the sexual assault, the child would cry when he had to defecate. At the time of trial, the boy, who was almost four years old, was still unable to speak. Appellant testified that he had grown up in an abusive family in El Salvador during the civil war in that country. He was anally assaulted by a stranger at the age of seven. By the time he was approximately eight years old, he had left home and was living under bridges and in parks, making money by turning in cans and bottles he found on the street. When he was seventeen, he joined a gang who kidnapped for a living. He was jailed in El Salvador for three months for his part in that group. He moved to the United States in 2003 to "try to become better," but he did not enter the United States legally. He admitted he had previously been convicted of misdemeanor assault. Appellant claimed he had been drinking alcohol and using cocaine before he sexually assaulted the child. He testified that he had never been sexually attracted to a child before that night. He further testified that he could not remember sexually assaulting the child. After the child's mother confronted him the night of the offense, he wanted to kill himself. He agreed with his attorney that he was not seeking probation because it was "not a probation case." He acknowledged that he was going to be spending "a very long time in the penitentiary."Discussion
In his sole point of error on appeal, appellant contends he received ineffective assistance of counsel when his attorneys failed to object to testimony by a special agent with Immigration and Customs Enforcement. The agent, who conducts investigations into child predator cases involving foreign nationals in the United States, testified that appellant had previously been ordered deported. According to the agent, when a person is found guilty of a sex crime in the state of Texas, the person is deported after he serves his sentence. When asked by the prosecutor what regulatory systems are in place in Central America to monitor sexual offenders once they are deported to their home countries, the agent replied, "To the best of my knowledge, none." The officer testified that sexual offenders are not jailed in their home countries for offenses committed in the United States. He further testified that there was no way to guarantee appellant could not get back into the United States. Appellant argues his attorneys should have objected to this testimony because the agent was not qualified to testify about such matters and the testimony was irrelevant to appellant's punishment. He contends the record shows the agent's testimony harmed him because, despite his mitigating evidence, the jury sentenced him to life imprisonment. To prevail on his claim of ineffective assistance of counsel, appellant must show his attorneys' 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 their 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). Failure to make the required showing either of deficient performance or sufficient prejudice defeats an ineffectiveness claim. See Andrews v. State, 159 S.W.3d 98, 101 (Tex. Crim. App. 2005). An appellate court ordinarily will not declare trial counsel ineffective where there is no record showing counsel had an opportunity to explain himself. See Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). Without evidence of the strategy employed, we will presume sound trial strategy. See Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003). The record before us in appellant's case contains no explanation for why the defense attorneys conducted the trial as they did. No motion for new trial was filed in the case, and there is no explanation of the defense strategy in the record. In concluding her jury argument, one of appellant's attorneys stated the following,You have a picture up there of a 23-month-old. Think of a 7-year-old, if you saw a 7-year-old living under a bridge or being sexually assaulted, how you'd feel about that child and that child without education, without therapy, without any other type of family structure in order to give him any kind of life whatsoever, and he eked out a living and he's still taking responsibility for what happened. Please take that into consideration when you sentence him.
I'm sure you're not going to give him less than . . . 20, but please take that into consideration when you do go back there and deliberate.It appears the attorneys' strategy was to admit the offense fully, explain the mitigating factors in appellant's life, and then implore the jury to be merciful in punishing appellant. Based on the record before us, we cannot say that appellant's attorneys failed to pursue a sound trial strategy. We overrule appellant's sole point of error. We affirm the trial court's judgment.