Opinion
No. 05-10-00501-CR
03-07-2012
JUAN MANUEL SALMERON, Appellant v. THE STATE OF TEXAS, Appellee
AFFIRM; Opinion issued March 7, 2012
On Appeal from the 203rd Judicial District Court
Dallas County, Texas
Trial Court Cause No. F09-00109-UP
MEMORANDUM OPINION
Before Justices Bridges, O'Neill, and Fillmore
Opinion By Justice Bridges
Appellant Juan Manuel Salmeron appeals his conviction of continuous sexual abuse of a child less than fourteen years old and his accompanying sentence of 38 years' imprisonment. In two issues, appellant contends the evidence was insufficient to support his conviction and that he received ineffective assistance of counsel. We affirm.
Background
Appellant came to live with his niece, Julisa Rafael, her husband, and their four children. In 2008, Julisa's husband had a heavy work schedule, working six days a week. On occasion, Julisa would run errands while her husband was at work, and appellant would watch the children.
This case came to trial in April of 2010. At the time of trial, the complaining witness (J.F.) was eight years old. J.F. testified that appellant would buy things for her and her siblings and give them money. J.F. testified that, in the spring or summer of 2008, appellant began touching her in an inappropriate manner. J.F. explained that appellant, while watching the children, would carry her from her room to the bed in her parents' room. Appellant would remove J.F.'s pajamas and then his own clothing. J.F. would lay on her side and appellant would be behind her, as in the "spooning position." Appellant would then touch her "bottom" with his "private part." By "private part," J.F. was referring to appellant's penis. By her "bottom," J.F. was referring to her buttocks, including her anus. J.F. testified that appellant's "private part" went inside her anus. J.F. testified that it hurt when appellant penetrated her anus and she screamed. Appellant attempted to keep her from screaming by covering her mouth. J.F. testified that appellant abused her in this manner on many occasions. Appellant told J.F. not to tell anyone about the abuse. J.F. testified that the last time appellant sexually abused her was on July 29, 2008, the day before she and her family moved to a new apartment complex without appellant.
J.F. provided inconsistent information regarding when the abuse first began. J.F. told Julisa that the abuse began around the time Julisa was in the hospital (March 2008). J.F. also told Julisa that the first time appellant abused her was around the time Julisa had to take J.F. to see a doctor (June 2008). J.F. also testified that the abuse first occurred during a school vacation. She stated the first incident of abuse was during summer vacation, but then stated it was during spring break. On cross-examination, she clarified it was during summer vacation.
The complainant's brother, J.M., testified that he observed the abuse. J.M. testified he observed appellant and J.F. laying on his parents' bed. Both appellant and J.F. were lying on their sides and appellant was behind J.F. On one occasion when J.M. observed appellant and J.F. in this position, they were both clothed. On other occasions, however, J.M. observed appellant and J.F. when they were wearing no clothing. J.M. testified that appellant told him not to tell anyone what he observed. J.F. testified appellant paid her brother to not tell anyone what he saw.
On August 4, 2008, J.M. told Julisa what had been occurring with appellant and J.F. Julisa confronted J.F., who initially denied the abuse, but ultimately told her mother about the abuse. During the conversation, J.F. told Julisa that the first time it happened was when Julisa took J.F. to Presbyterian Hospital on June 11, 2008. Julisa had taken J.F. to the hospital because she was experiencing pain, diarrhea, and had blood in her stool. J.F. told Julisa that appellant entered her anus with his penis many times. After Julisa spoke with J.F., she called her mother and brother. Julisa's brother called the police.
Following a trial, the jury convicted appellant of continuous sexual abuse of a child less than fourteen years old, and the trial court sentenced appellant to 38 years' imprisonment.
Analysis
In his first issue, appellant contends the evidence was insufficient to support his conviction. In reviewing a challenge to the sufficiency of the evidence, we examine all the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Brooks v. State, 323 S.W.3d 893, 894-95 (Tex. Crim. App. 2010) (plurality op.). We are required to defer to the jury's credibility and weight determinations because the jury is the sole judge of the witnesses' credibility and the weight to be given their testimony. See Jackson, 443 U.S. at 326 ("a court faced with a record of historical facts that supports conflicting inferences must presume-even if it does not affirmatively appear in the record-that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution").
In order to obtain a conviction, the State was required to prove beyond a reasonable doubt that during a period that was thirty or more days in duration, appellant committed two or more acts of sexual abuse and that at the time of the commission of each of the acts of sexual abuse, the actor was seventeen years of age or older and the victim was a child younger than fourteen years of age. Tex. Penal Code Ann. § 21.02(b) (West Supp. 2011). "Act of sexual abuse" means the accused intentionally or knowingly caused the penetration of the anus of a child by any means or intentionally or knowingly caused the anus of a child to contact the sexual organ of the accused. See id. at §§ 21.02(c)(4); 22.021(a)(1)(B)(i), (iv) (West Supp. 2011).
In his brief, appellant maintains the evidence is insufficient to convict based on the lack of J.F.'s credibility. He points to the following evidence to support his argument: (1) J.F.'s initial denial of the abuse, (2) the symptoms experienced by J.F. were the same as those experienced by Julisa in June 2008 when Julisa took J.F. to the hospital, (3) Julisa did not find blood in J.F.'s panties or on the sheets, (4) J.M. testified that when he saw appellant and his sister together, they were clothed, and (5) J.F.'s medical exam came back normal.
Appellant acknowledges that the testimony of a child victim alone is sufficient to support a conviction. See Tear v. State, 74 S.W.3d 555, 560 (Tex. App.-Dallas 2002, pet. ref'd). As already noted, we are required to defer to the jury's credibility and weight determinations because the jury is the sole judge of the witnesses' credibility and the weight to be given their testimony. See Jackson, 443 U.S. at 326. Here, J.F. testified that appellant penetrated her anus on multiple occasions. Julisa testified J.F. told her that appellant penetrated her anus many times. Although J.M. testified that he witnessed appellant behind J.F. when they were wearing clothes, he also testified he witnessed appellant behind J.F. in his parents' bed when they were unclothed. The record reflects J.F. was under the age of fourteen and appellant was older than seventeen at the time of the abuse. Further, the record reflects the abuse took place, at a minimum, from June 11, 2008 until July 29, 2008. Based on the record before us, we conclude the evidence was sufficient to convict appellant of continuous sexual abuse of a child less than fourteen years of age. See Brooks, 323 S.W.3d at 894-95. We overrule appellant's first issue. In his second issue, appellant complains he received ineffective assistance of counsel when his trial counsel: (1) failed to preserve error on his challenge for cause after the trial court denied his motion to strike venire person number 6 and (2) failed to use all of his peremptory strikes. A claim of ineffective assistance of counsel is reviewed under the Strickland test. Hernandez v. State, 988 S.W.2d 770, 770 (Tex. Crim. App. 1999) (citing Strickland v. Washington, 466 U.S. 668 (1984)). In determining whether counsel rendered ineffective assistance, an appellate court considers two factors: (1) whether counsel's performance fell below an objective standard of reasonableness and (2) whether, but for counsel's deficient performance, the result of the proceeding would have been different. Thompson v. State, 9 S.W.3d 808, 812 (Tex Crim. App. 1999). Appellant bears the burden of proving his counsel was ineffective by a preponderance of the evidence. Id. at 813.
Appellant points us to nothing in the record which demonstrates there were other objectionable venire members or a need to use his additional peremptory strikes.
There is a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002); Thompson, 9 S.W.3d at 813. To defeat this presumption, appellant must prove that there was no plausible professional reason for a specific act or omission. Bone, 77 S.W.3d at 836. Any allegations of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson, 9 S.W.3d at 813 (citing McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996)). Thus, a reviewing court will rarely be able to fairly evaluate the merits of an ineffective assistance claim on direct appeal because the record on direct appeal is not developed adequately to reflect the reasons for defense counsel's actions at trial. Mata v. State, 226 S.W.3d 425, 430 (Tex. Crim. App. 2007).
Here, we do not have an adequate record to review appellant's claim of ineffectiveness. See id.; Thompson, 9 S.W.3d at 813-15. Appellant must prove that there is no possible strategic reason for counsel's actions and trial counsel should be given the opportunity to explain his actions before being denounced as "ineffective." Bone, 77 S.W.3d at 836. The record before us is devoid of evidence from trial counsel himself and is "simply undeveloped and cannot adequately reflect the failings of trial counsel." Thompson, 9 S.W.3d at 814 (citing Jackson v. State, 973 S.W.2d 954, 957 (Tex. Crim. App. 1998)).
The record is silent as to why appellant's trial counsel: (1) failed to preserve error on his challenge for cause after the trial court denied his motion to strike venire person number 6 and (2) failed to use all of his peremptory strikes. Therefore, appellant has failed to rebut the presumption that counsel's decisions were reasonable, and we overrule appellant's second issue. Bone, 77 S.W.3d at 833; Thompson, 9 S.W.3d at 813-14.
Having overruled appellant's issues, we affirm the judgment of the trial court.
DAVID L. BRIDGES
JUSTICE
Do Not Publish
Tex. R. App. P. 47
100501F.U05
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
JUAN MANUEL SALMERON, Appellant
V.
THE STATE OF TEXAS, Appellee
No. 05-10-00501-CR
Appeal from the 203rd Judicial District of Dallas County, Texas. (Tr.Ct.No. F09-00109- UP).
Opinion delivered by Justice Bridges, Justices O'Neill and Fillmore.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered March 7, 2012.
DAVID L. BRIDGES
JUSTICE