Opinion
No. 04-15-00799-CR
03-15-2017
MEMORANDUM OPINION
From the 25th Judicial District Court, Guadalupe County, Texas
Trial Court No. 13-1569-CR-C
Honorable Gary L. Steel, Judge Presiding Opinion by: Irene Rios, Justice Sitting: Sandee Bryan Marion, Chief Justice Karen Angelini, Justice Irene Rios, Justice AFFIRMED AS MODIFIED
Eric G. Yzaguirre was convicted by a jury of two counts of indecency with a child. On appeal, Yzaguirre contends he received ineffective assistance of counsel because trial counsel did not object to testimony from two witnesses regarding the complainant's truthfulness. Yzaguirre also contends the trial court's judgment should be modified because it erroneously states the age of the victim. We modify the judgment to accurately reflect the victim's age and affirm the judgment as modified.
BACKGROUND
Yzaguirre was charged with two counts of indecency with a child by touching the breast of his step-daughter C.B. on two different dates. At trial, C.B. testified about the events which occurred when she was twelve years old. On both occasions, she was riding in the front seat of the car Yzaguirre was driving when he slid his hand down from the back of her seat inside her shirt and used his fingertips to squeeze the top fleshy part of her breast. C.B. stated the first incident lasted for about thirty minutes to an hour while driving back from Abilene. On that occasion, only C.B. and Yzaguirre were in the car. The second incident lasted about five minutes while driving to Yzaguirre's brother's house. On that occasion, C.B.'s brother was in the back seat but did not see what occurred.
Yzaguirre voluntarily agreed to speak with law enforcement officials regarding the allegations and was interviewed by Sergeant Craig Jones and Investigator Jana Steenken. Sergeant Jones testified at trial, and a videotape of the interview was admitted into evidence. Sergeant Jones testified Yzaguirre admitted during the interview that he touched the top of C.B.'s breast. Although Yzaguirre used the word "chest," Sergeant Jones stated the location of Yzaguirre's hand when he demonstrated his actions showed his hand would be located at the top of C.B.'s breast. Sergeant Jones also stated Yzaguirre admitted his hand was inside C.B.'s shirt and under her bra strap. Sergeant Jones agreed Yzaguirre's written statement partially varied from the verbal statements he made. Sergeant Jones testified Yzaguirre remarked that it felt good to get the story off his chest which was an indication of a guilty conscience. Sergeant Jones further testified that his premise in an interview is that children are inherently credible and C.B.'s outcry was very credible. Although Yzaguirre denied rubbing C.B.'s breast in his written statement, Sergeant Jones testified Yzaguirre admitted the contact in the interview.
Dr. William Carter, a psychologist, was called as a witness to offer information he hoped would "be educational and informative to the jurors so that they can better understand how to break down a sexual assault or a sexual abuse kind of case." Dr. Carter testified ninety percent of sexual offenders have a pre-existing relationship with their victims. Dr. Carter explained how a child's fear can delay the child's outcry. Dr. Carter stated a child's consistency in her statements and corroborating evidence help determine the child's reliability. Dr. Carter testified he was surprised at how frank Yzaguirre was during his interview and described his written statement as an attempt to "put the cat back in the bag." Dr. Carter also testified Yzaguirre's statements offered reliability and lent credibility to C.B.'s outcry because the details in his statements matched the details she provided.
Based on the witnesses' testimony and Yzaguirre's videotaped interview, the jury convicted Yzaguirre of both counts of indecency with a child. The trial court assessed punishment at six years' imprisonment. Yzaguirre appeals.
INEFFECTIVE ASSISTANCE
In his first two issues, Yzaguirre contends trial counsel was ineffective in failing to object to testimony by Sergeant Jones and Dr. Carter commenting on C.B.'s credibility. The State concedes trial counsel should have objected to certain testimony but argues Yzaguirre failed to prove ineffective assistance.
Under Strickland v. Washington, Yzaguirre has the burden to show by a preponderance of the evidence that: (1) trial counsel's conduct was deficient, meaning counsel's representation fell below an objective standard of reasonableness and was not the result of reasonable professional judgment; and (2) but for counsel's deficient conduct, there is a reasonable probability that the result of the proceeding would have been different. 466 U.S. 668, 688-94 (1984); Ex parte Saenz, 491 S.W.3d 819, 826 (Tex. Crim. App. 2016). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Ex parte Saenz, 491 S.W.3d 826.
In this case, we need not decide whether Yzaguirre satisfied the first prong of the Strickland test by showing trial counsel's representation was deficient because we conclude Yzaguirre did not meet his burden of proof with regard to the second prong. Having reviewed the record as a whole, we hold Yzaguirre failed to establish a reasonable probability that the result of the proceeding would have been different if trial counsel had objected. See Ex parte Saenz, 491 S.W.3d at 826.
This is not a case where the complainant's testimony is uncorroborated by other evidence. Instead, in this case, Yzaguirre himself corroborated the details of C.B.'s testimony in his videotaped interview. He admitted the manner in which he slid his hand inside C.B.'s shirt on the trip back to Abilene and the trip to his brother's house. He admitted his thumb was under her bra strap and that he was rubbing her chest. Because Yzaguirre corroborated significant details of C.B.'s testimony, trial counsel's failure to object to the portions of the testimony of Sergeant Jones and Dr. Carter commenting on C.B.'s credibility does not undermine our confidence in the outcome of trial. See Lane v. State, 257 S.W.3d 22, 28-29 (Tex. App.—Houston [14th Dist.] 2008, pet. ref'd) (holding appellant failed to establish reasonable probability outcome of trial would have been different where victim's sister corroborated significant details of victim's testimony so "resolution of the credibility issue was not dependent upon the challenged expert testimony"). Therefore, under the facts in this case, Yzaguirre has not established a reasonable probability that, but for trial counsel's failure to object to the portions of the testimony of Sergeant Jones and Dr. Carter commenting on C.B.'s credibility, the outcome of the trial would have been different. Yzaguirre's first and second issues are overruled.
MODIFICATION OF JUDGMENT
In his third issue, Yzaguirre contends the trial court's judgment erroneously states the victim was eight years old at the time of the offense. The State concedes error.
This court has the authority to correct errors in judgments by modifying the judgments. See Bigley v. State, 865 S.W.3d 26, 27-28 (Tex. Crim. App. 1993); Ferguson v. State, 435 S.W.3d 291, 295-96 (Tex. App.—Waco 2014), pet. stricken, 2014 WL 5374163 (Tex. Crim. App. Aug. 20, 2014). Because the record reflects C.B. was twelve years old at the time of the offense, we sustain Yzaguirre's third issue and modify the judgment to accurately reflect C.B.'s age.
CONCLUSION
The trial court's judgment is affirmed as modified.
Irene Rios, Justice DO NOT PUBLISH