Sabedra v. State

Full title: DELFINO SABEDRA, JR., Appellant, v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: May 17, 2005

No. 05-03-01709-CR (Tex. App. May. 17, 2005)

Opinion

No. 05-03-01709-CR

Opinion Filed May 17, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).

On Appeal from the 282nd Criminal District Court, Dallas County, Texas, Trial Court Cause No. F03-15748-JS. Affirmed.

Before Justices MOSELEY, FRANCIS, and MAZZANT.

OPINION

MOSELEY, Justice.

A jury convicted Delfino Sabedra, Jr. of aggravated sexual assault of a child under fourteen years of age and set punishment at confinement for thirty-five years. Sabedra appeals. In five points of error, he argues (1) the trial court erred in (i) overruling his objection to evidence allegedly obtained in violation of his right to counsel, and (ii) overruling his objection to improper jury argument; (2) his trial counsel rendered ineffective assistance of counsel; and (3) the evidence was factually insufficient to support the finding of guilt. We affirm the trial court's judgment.

Background

Sabedra married Donna Sabedra in February 1989. Donna had three daughters when she married Sabedra. The couple later had another daughter. After several years, the marriage began to break up. About three years before trial, Donna told Sabedra she wanted out of the marriage, but she did not do anything about it. The complainant in this case is the second oldest daughter, Audra. She testified about several incidents of abuse beginning when she was about eleven or twelve. The charged offense occurred in 1996 when Audra was about twelve. Sabedra had several small businesses, including a second-hand retail shop, and he made all his daughters work in the businesses. Audra saw a plaque in the shop that she wanted and asked Sabedra if she could have it. She did not have enough money to buy it. Sabedra had her go into the office with him, drop her pants and underwear and sit on the desk. Sabedra put his fingers inside her vagina and moved them. He asked her if she liked it and she told him no and he called her a liar. Audra did not tell her mother because she was ashamed and because Sabedra told her that her mother had health problems and it would be her fault if the family broke up. Audra said she did not tell her mother because she felt dirty and that it was her fault. She did not want people to know. Sometime in 1996, a complaint was made to Child Protective Services about physical abuse of the children. When CPS investigated, Audra told them everything was fine. She did not report any physical or sexual abuse because Sabedra had told her that if anyone found out, they would blame her mother and she would be separated from her mother and sisters. She was afraid of what would happen to the family. Audra testified that the abuse was less frequent as she got older, but that until she was eighteen Sabedra would frequently crawl into bed with her and attempt to touch her. When Audra was eighteen, she told her older sister, Amanda, about some of the incidents, but not about the incident at the retail shop. Amanda was married and had recently given birth to her own daughter. Around this time, Amanda told one of her aunts that Sabedra had molested her when she was younger. Amanda decided that she wanted to get her sisters away from Sabedra's abuse. She wrote a letter to their mother, Donna, describing Sabedra's sexual abuse of Amanda and Audra, and arranged for her mother, her daughter, and all of her sisters to drive to Houston to visit with her aunts in January 2003. Amanda gave the letter to Donna on the way. Donna was shocked and cried when she read the letter. It was the first time she became aware of the sexual abuse. While in Houston, the family discussed what to do about Sabedra. One of the aunts drafted a document demanding Sabedra to agree to a divorce from Donna, sign title of a car over to Audra, turn over other personal property to Donna, and remove himself and his property from the house or the family would report Sabedra for physically and sexually abusing Amanda and her sisters. Donna, her daughters, and the aunts and their families then returned to Dallas to confront Sabedra with the document. The aunts testified that Sabedra read the document and signed it. One of the aunts read it to him again and he said he understood. The other told him he had hurt her sisters and her nieces beyond belief. Sabedra said he knew he had, and when asked why said, "I don't know. Maybe I'm sick. It happened to me as a kid, maybe that's why I did it." Sabedra started packing. He later refused to sign another document stating he had removed all of his property. The police were called and Sabedra eventually signed the other document and left with his property. No reports of sexual abuse were made to the police officers at that time, but the next morning, Donna and her daughters went to the police station and filed complaints against Sabedra. Audra for the first time disclosed the incident at the retail store. Donna testified that about a week after the complaints were made to the police, Sabedra called her at work and told her, "Whatever Amanda and Audra told you, it's true. I have never touched [the younger girls], but whatever the big girls told you is true."

Admission of Audio Tape

Sabedra's first point of error asserts the trial court erred in admitting a tape recording of a telephone conversation between a police detective and Sabedra. After charges were filed against Sabedra and warrants issued for his arrest, a police detective attempted to contact Sabedra on his cell phone. The detective testified that he identified himself as a police detective on the first call and Sabedra agreed to talk to him. They discussed the charges filed against Sabedra and the detective said he would check on having a bond set before Sabedra turned himself in. The detective checked on the bond then called Sabedra back about five minutes later and recorded their conversation. The detective agreed that nothing on the tape recording indicated whether he and Sabedra were talking about physical or sexual abuse, but he testified he had filed the sexual abuse charges and that those were the charges they discussed. During the first conversation, Sabedra said he had an attorney and they were talking about getting a bond set. The detective said that Sabedra was on his way to meet with his attorney at the time of the telephone conversation. The recording was admitted in evidence and played for the jury. Sabedra said on the recording that he had problems and was trying to work those problems out and trying to help his family and his daughters. At trial, Sabedra objected that the recording was incomplete because it did not include the first telephone conversation. Later, after both the prosecutor and defense counsel had examined the detective about Sabedra having an attorney or being on the way to meet with an attorney, Sabedra moved to strike the tape. The trial court overruled the motion. Sabedra argues on appeal that it was error to admit the recording because the statements on the tape were obtained in violation of his Sixth Amendment right to counsel. However, Sabedra did not object to the tape on this ground at trial. To preserve a complaint for appellate review, a party must have presented a timely request, objection or motion that states specific grounds for the desired ruling unless the specific grounds are apparent from the context. See Tex.R.App.P. 33.1(a). A trial objection must be sufficiently specific to make the trial court aware of the complaint unless the specific grounds were apparent from the context. Id. An objection in the trial court that does not comport with a complaint on appeal will not preserve error. See Wilson v. State, 71 S.W.3d 346, 349 (Tex.Crim.App. 2002). Sabedra's objection at trial does not comport with his complaint on appeal and his motion to strike was not timely. We overrule Sabedra's first point of error.

Jury Argument

One of the issues in the case was that the complainant did not come forward with the allegations until she was eighteen and the abuse started when she was in middle school. During the guilt/innocence phase of trial, one of the prosecutors argued, "You know, I do this every day and can't blame the people who don't want to tell. I can't blame the people who don't want to sit in this chair (indicating) and get yelled at over and over and be told-called a liar-." Sabedra objected that the argument had nothing to do with the evidence and referred to other cases the prosecutor had prosecuted. The trial court overruled the objection. In his second point of error, Sabedra argues that the trial court erred in overruling his objection to the State's jury argument. Permissible jury argument falls within one of four general areas: (1) summation of evidence; (2) reasonable deductions from the evidence; (3) answers to arguments of opposing counsel; and (4) pleas for law enforcement. Lagrone v. State, 942 S.W.2d 602, 619 (Tex.Crim.App. 1997). We balance three factors in conducting a harm analysis of non-constitutional error in argument at the guilt/innocence phase: (1) the severity of the misconduct (the magnitude of the prejudicial effect of the prosecutor's argument); (2) measures adopted to cure the misconduct (the efficacy of any cautionary instruction by the judge); and (3) the certainty of conviction absent the misconduct (the strength of the evidence supporting the conviction). See Tex.R.App.P. 44.2(b); Mosley v. State, 983 S.W.2d 249, 259 (Tex.Crim.App. 1998). It is improper for a prosecutor to inject into the argument her personal opinion about the honesty and truthfulness of witnesses. See Menefee v. State, 614 S.W.2d 167, 168 (Tex.Crim.App. 1981). However, a prosecutor may argue her opinions concerning issues in the case so long as the opinions are based on the evidence in the record and do not constitute unsworn testimony. McKay v. State, 707 S.W.2d 23, 37 (Tex.Crim.App. 1985). The prosecutor's statements injected her personal opinion based on other cases into this case. While improper, this opinion was not so extreme or manifestly improper as to require reversal. Audra and Amanda both explained the reasons they did not come forward as children and their fears, based in part on what Sabedra told them, about their mother's health and the impact the disclosure would have on the family. While the trial court did not give a curative instruction because it overruled the objection, the court did instruct the jury that the statements of counsel were not evidence. And the jury was instructed that the only evidence it could receive was from the witness stand. See Hawkins v. State, 135 S.W.3d 72, 84 (Tex.Crim.App. 2004) (court should consider jury charge in deciding the efficacy of curative measures). We conclude that any error in the trial court's overruling of Sabedra's objection to this argument was not harmful. Tex.R.App.P. 44.2(b). Sabedra also argues the trial court erred in overruling his objection to the State's rebuttal argument. The State argued that what defense counsel told the jury was not true because his own client, Sabedra, did not believe it: "And how do you know that? Because we have an audio tape that says so. . . . You know, these girls didn't do anything wrong. He's telling you on the tape these girls aren't lying." At this point, Sabedra objected that the argument went outside the evidence and was a comment on his failure to testify. The prosecutor later argued about comments allegedly made by Sabedra when he was confronted with the document demanding he leave the house. The prosecutor argued that when presented with the accusations, Sabedra did not deny them:

"You want me out by six?" A latter moment-later, "I'm not proud of the man I am." And then on the-the phone, "I'm going to throw myself on the mercy of the court."

Folks, the evidence is-yes, we don't have him saying, yes, I took my date-on this date and took my finger and did this. He wants you to believe-raising these girls was a treat. He's-he was the only father figure that they ever had. Sabedra objected that he had not testified and that the argument struck at him over the shoulder of counsel. The prosecutor's arguments were based on evidence in the record and reasonable deductions from that evidence. The audio tape of Sabedra's telephone conversation with the detective was in evidence and the prosecutor was free to argue reasonable inferences from the evidence. See Shannon v. State, 942 S.W.2d 591, 597 (Tex.Crim.App. 1996) (stating counsel is allowed wide latitude in drawing inferences from evidence so long as inferences drawn are reasonable, fair, legitimate, and offered in good faith). Further, Audra's aunts testified to Sabedra's statements when he was presented with the document; the prosecutor repeated this testimony in his argument. These comments did not refer to Sabedra's failure to testify-they referred to specific statements admitted in evidence. Argument regarding statements made by the defendant that have been admitted in evidence is not a comment on the defendant's failure to testify. Garcia v. State, 126 S.W.3d 921, 924 (Tex.Crim.App. 2004). We conclude the trial court did not err in overruling Sabedra's objections to the rebuttal arguments. We overrule Sabedra's second point of error.

Ineffective Assistance of Counsel

Sabedra's third and fourth points complain of ineffective assistance of counsel. He claims his trial counsel was ineffective because he failed to object to improper jury argument at the guilt/innocence phase and at the punishment phase of the trial. To prevail on an ineffective assistance of counsel claim, an appellant must prove by a preponderance of the evidence (1) deficient performance, and (2) prejudice. Goodspeed v. State, No. PD-1882-03, 2005 WL 766996, at *2 (Tex.Crim.App. Apr. 6, 2005) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). A claim of ineffective assistance of counsel must be "firmly founded in the record," and "the record must affirmatively demonstrate" the meritorious nature of the claim. Id. (citations omitted). Further,

[d]irect appeal is usually an inadequate vehicle for raising such a claim because the record is generally undeveloped. This is true with regard to the question of deficient performance-in which counsel's conduct is reviewed with great deference, without the distorting effects of hindsight-where counsel's reasons for failing to do something do not appear in the record. We have said that "trial counsel should ordinarily be afforded an opportunity to explain his actions before being denounced as ineffective." Absent such an opportunity, an appellate court should not find deficient performance unless the challenged conduct was "so outrageous that no competent attorney would have engaged in it."

Id. (footnotes and citations omitted). In her third point, Sabedra argues trial counsel should have objected to the State's jury argument during the guilt/innocence phase of trial that, "She [the complainant] is not going to lie to you and tell you a bunch of stuff that isn't true." Sabedra argues this statement was "improper bolstering" and injected the prosecutor's personal opinion in the case. We do not agree that this statement was improper. A prosecutor may argue her opinions concerning issues in the case as long as those opinions are based on evidence in record and do not constitute unsworn testimony. See Wolfe v. State, 917 S.W.2d 270, 281 (Tex.Crim.App. 1996). The prosecutor's statement was a reasonable deduction from the evidence. Counsel's failure to object to this statement does not support a claim of ineffective assistance of counsel. We overrule Sabedra's third point. In his fourth point, Sabedra argues that trial counsel should have objected to much of the State's arguments during punishment. For example, evidence was admitted during the punishment phase regarding a total of seven cases filed against Sabedra by his four daughters. In the course of arguing the jury could consider all the evidence it heard, one prosecutor stated:

Yes, you can punish him for what he did to Audra [the complainant]. You can punish him for what he did to Amanda. You can punish him for how it affected the life of his daughter, H. You can punish him for what he did to his daughter, S. You can punish him for the physical violence. You can punish him for the emotional abuse. And certainly it is you job to punish him for the sexual abuse.

The other prosecutor later argued:

Why don't you start at the minimum, five years, and then you can consider every bad act that he committed, and then you multiple it by four because he did every one of those things to every one of those girls. . . . You know that he abused, verbally, physically, emotionally and sexually, these girls for a long period of time.

. . . Add them up. I mean, it's just-it's so overwhelming the amount of abuse that these girls suffered at the expense-or that this man did at the expense of these girls. . . . All I just ask is that you consider everything in the trial. The code of criminal procedure permits the jury to consider, during the punishment phase, evidence of any extraneous crime or bad act that is shown beyond a reasonable doubt to have been committed by the defendant or for which he could be held criminally liable. Tex. Code Crim. Proc. Ann. art. 37.07 § 3(a) (Vernon Supp. 2004-05); see Arthur v. State, 11 S.W.3d 386, 391-92 (Tex.App.-Houston [14th Dist.] 2000, pet. ref'd). "Prior crimes or bad acts are introduced to provide additional information which the jury may consider in determining what sentence the defendant should receive." Fields v. State, 1 S.W.3d 687, 688 (Tex.Crim.App. 1999). Once satisfied beyond a reasonable doubt that the prior acts are attributable to the defendant, the fact finder may use the evidence however it chooses in assessing punishment. Id. However, the State may not in final argument "encourage the jury to include in their verdict additional punishment for a collateral crime or for a defendant being a criminal generally." See Lomas v. State, 707 S.W.2d 566, 569 (Tex.Crim.App. 1986) (concluding argument improperly requested jury to "tack on" additional punishment for collateral crime). The arguments complained of here asked the jury to punish Sabedra for what he did to the other girls, not just the complainant. These arguments go beyond requesting the jury to consider properly admitted evidence in assessing punishment and appear to violate the standard in Lomas even in light of the statutory changes to article 37.07 § 3(a). The record does not, however, include trial counsel's reasons for not objecting to these arguments. Even if we question whether reasonable trial strategy could involve failing to object to the prosecutor's second argument quoted above, we will not speculate as to what counsel's trial strategy might have been. See Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994). This is not the exceptional or rare case where the record on direct appeal is sufficient for us to determine the ineffective assistance claim on the merits. See Goodspeed, 2005 WL 766996, at *2. Moreover, we cannot say that counsel's failure to object to the prosecutors' closing arguments concerning punishment is "so outrageous that no competent attorney would have engaged in it." Id. Therefore, Sabedra has failed to rebut the strong presumption in favor of effectiveness of counsel. See Bone v. State, 77 S.W.3d 828, 836 (Tex.Crim.App. 2002). The record also fails to support the second prong of the Strickland test with respect to Sabedra's fourth point. If trial counsel had objected to the prosecutor's argument during the punishment phase and obtained an instruction to disregard, the jury would have been able to consider the extraneous offense evidence under article 37.07 § 3(a) and the jury charge. Further, the jury assessed punishment at thirty-five years' confinement when the maximum punishment could have been 99 years or life. Thus Sabedra has failed to show a reasonable probability that the result of the punishment proceedings would have been different absent the alleged error of trial counsel. We overrule Sabedra's fourth point.

Factual Sufficiency

Sabedra's fifth point challenges the factual sufficiency of the evidence to support the conviction. In conducting a factual sufficiency review, we determine whether, considering all of the evidence in a neutral light, the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex.Crim.App. 2004). Evidence may be factually insufficient in two ways. First, when considered by itself, evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt. Second, weighing the evidence both supporting and contrary to the verdict, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met, so the guilty verdict should not stand. Id. Thus, even if the evidence of guilt predominates in favor of conviction, it may still be insufficient to prove the elements of the offense beyond a reasonably doubt. Id. See also Johnson v. State, 23 S.W.3d 1, 10-11 (Tex.Crim.App. 2000). Sabedra's main argument is that the complainant's family had a motive to lie about the sexual abuse allegations in order to blackmail him into turning over his property to them and agreeing to a divorce from Donna. Sabedra developed this theory through cross-examination and other evidence including the documents he signed when confronted by the family. He also argues that the complainant did not come forward with the sexual assault charge until several years after the event. He concludes that the State's entire case is based on the uncorroborated testimony of the complainant. Article 38.07 of the code of criminal procedure provides that certain sexual offenses can be proven solely by the uncorroborated testimony of the victim if the victim made an outcry within one year of the offense. Tex. Code Crim. Proc. Ann. art. 38.07(a) (Vernon Supp. 2004). However, this one-year requirement does not apply if the victim was seventeen years of age or younger at the time of the crime. Id. art. 38.07(b)(1). The record reflects that Audra was younger than seventeen when the alleged offense occurred. Therefore, her testimony need not have been corroborated to support the conviction. Audra testified to the specific events of the aggravated sexual assault. She also explained that she did not tell about the assault because of she felt shame and that she feared for her mother's health and the family. While there was some conflicting testimony and Sabedra was able to develop evidence of the bias and motives of Audra and her family, the jury was in the best position to determine the credibility of the witnesses and the weight to give their testimony. The jury is the exclusive judge of the witnesses' credibility and the weight to be given their testimony. Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979). We may not substantially intrude on the jury's role as sole judge of the weight and credibility given to witness testimony. Johnson, 23 S.W.3d at 7. The jury is free to accept or reject any or all of the evidence presented by either side. See Saxton v. State, 804 S.W.2d 910, 914 (Tex.Crim.App. 1991). Furthermore, reconciling conflicting testimony is within the exclusive province of the jury. See Goodman v. State, 66 S.W.3d 283, 287 (Tex.Crim.App. 2001). Nothing in the appellate record clearly reveals a different result is appropriate, therefore, we defer to the jury's determination of credibility and the weight to give contradictory evidence. See Johnson, 23 S.W.3d at 8. Viewing all the evidence in a neutral light, we conclude the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga, 144 S.W.3d at 484-85. We cannot say the evidence of guilt considered by itself is too weak to support the finding of guilt beyond a reasonable doubt, or that the contrary evidence is strong enough that the beyond-a-reasonable-doubt standard could not have been met. See id. We need not further detail the rest of the evidence. See Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App. 2003). We conclude the evidence is factually sufficient to support the conviction. Sabedra's fifth point is overruled. We affirm the judgment of the trial court.