Juan Manuel Navariz, Jr. v. The State of Texas--Appeal from 161st District Court of Ector County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

JUAN MANUEL NAVARIZ, JR., )

) No. 08-02-00384-CR

Appellant, )

) Appeal from the

v. )

) 161st District Court

THE STATE OF TEXAS, )

) of Ector County, Texas

Appellee. )

) (TC# B-29,487)

)

O P I N I O N

Appellant Juan Manuel Narvaiz, Jr. appeals from his conviction of indecency with a child.[1] A jury found Appellant guilty and assessed the punishment of 10 years= imprisonment and a $10,000 fine. In a single issue on appeal, Appellant alleges ineffective assistance of his trial counsel. We affirm.

The victim, whose pseudonym during the trial was Crystal[2], was nine years old when she was sexually assaulted. She, her mother, and younger sister were living in the home of the Appellant and his family.

Early in May of 2001, all of the children in the two families were left alone with the Appellant for several days. Crystal testified that Appellant put her in his bed and was rubbing Ahis thing between [her] butt cheeks.@ At the time, she was only wearing her shirt and Appellant was completely nude. The next morning, Crystal woke up to find herself in Appellant=s bed. Appellant proceeded to touch Crystal as he had done the previous night and then he showed her a pornographic movie.

The same day Ms. Anderson and Mrs. Narvaiz returned, Appellant and Crystal were supposed to go to the store, but instead, Crystal testified that they drove out to the Amiddle of nowhere.@ Crystal testified that this happened during the day and that the property they drove to had oil tanks, oil pumps, and a house. Crystal testified that she climbed over to the driver=s seat where Appellant proceeded to sexually assault her. She testified that Appellant pulled her pants and underwear down and had her position herself on her hands and knees. Crystal could not remember if Appellant just had his pants unzipped or if he also pulled down his underwear. She testified that Appellant once again rubbed Ahis thing against [her] butt cheeks@ and then anally penetrated her.

In his sole issue for review, Appellant asserts that his trial counsel was ineffective because he elicited evidence of Appellant=s prior misconduct of a sexual nature against a young child. The State maintains that Appellant=s trial counsel=s actions were in a clear attempt to impeach Crystal=s mother=s testimony. In his reply brief, Appellant contends that the fact that no motion for new trial was filed is further evidence of the ineffectiveness of his trial counsel.

Standard of Review

We review claims of ineffective assistance of counsel under the two prong test set out by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) and adopted by Texas in Hernandez v. State, 726 S.W.2d 53, 57 (Tex.Crim.App. 1986). First, the defendant must show that trial counsel=s performance was deficient, that is, counsel=s representation fell below an objective standard of reasonableness. Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App. 1999); Strickland, 466 U.S. at 687 88, 104 S. Ct. at 2064. Second, the defendant must show that counsel=s deficient performance prejudiced the defense. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994). This requires the defendant to show there is a reasonable probability that, but for counsel=s unprofessional errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Jackson, 877 S.W.2d at 771. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Jackson, 877 S.W.2d at 771. It is the defendant=s burden to prove ineffective assistance of counsel by a preponderance of the evidence. Thompson, 9 S.W.3d at 813.

In reviewing a claim of ineffective assistance of counsel, we must indulge a strong presumption that counsel=s conduct falls within the wide range of reasonable professional assistance and the appellant must overcome the presumption that the challenged conduct might be considered sound trial strategy. Thompson, 9 S.W.3d at 813; Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. Any allegation of ineffectiveness must be firmly founded and affirmatively demonstrated in the record to overcome this presumption. Thompson, 9 S.W.3d at 813; see Jackson, 877 S.W.2d at 771. In the majority of instances, this task is extremely difficult because Athe record on direct appeal is simply undeveloped and cannot adequately reflect the failings of trial counsel.@ Thompson, 9 S.W.3d at 813 14. When faced with a silent record as to counsel=s strategy, this Court will not speculate as to the reasons for counsel=s actions. See Jackson, 877 S.W.2d at 771. The Court of Criminal Appeals in Thompson, further advises that A[a]n appellate court should be especially hesitant to declare counsel ineffective based upon a single alleged miscalculation during what amounts to otherwise satisfactory representation, especially when the record provides no discernible explanation of the motivation behind counsel=s actions whether those actions were of strategic design or the result of negligent conduct.@ Thompson, 9 S.W.3d at 814. In this case, Appellant did not file a motion for new trial to challenge the alleged ineffectiveness of his counsel. The record before this Court does not contain trial counsel=s explanations of the reasons for the inaction alleged as error, therefore it will be difficult for Appellant to rebut the strong presumption that trial counsel=s conduct falls within the wide range of reasonable professional assistance. See id.

During cross-examination of Anna Carrillo, a therapist at Harmony Home Children=s Advocacy Center who provided therapy to Crystal, Appellant=s trial counsel asked if the victim=s mother had made allegations about her other daughter suffering abuse when she was younger. Ms. Carrillo responded that those allegations had been made to Eve Flores, a caseworker also at the advocacy center. The State objected to this testimony on the grounds of relevancy. In response, Appellant=s trial counsel stated that the purpose for eliciting such testimony was to impeach Crystal=s mother=s testimony. The trial court overruled the State=s objection and Appellant=s trial counsel asked Ms. Carrillo:

If the mother indicated that there was prior -- the mother said she confronted him back several years ago when they lived in Oklahoma about other abuse allegations; is that correct?

Ms. Carrillo stated once again that such information was in Ms. Flores=s report. Appellant=s trial counsel finally was able to have Ms. Castillo state the following regarding the alleged sexual abuse Crystal=s younger sister suffered at the hands of the Appellant:

The little girl mentioned to me that mommy had told her, but she didn=t really remember, because she was only 3. She would not have the ability to remember at that age.

Viewing this evidence alone, it would appear that the testimony elicited was prejudicial and contrary to Appellant=s interest as is asserted on appeal. However, we are required to review the totality of the representation to determine if the alleged error caused an improper verdict. See McFarland v. State, 928 S.W.2d 482, 500 (Tex.Crim.App. 1996). Considering the record as a whole, it becomes apparent that trial counsel was not deficient in his performance, but was rather attempting to carry out a defensive theory that Crystal=s mother had made Crystal believe that she had suffered the sexual abuse as a form of retaliation against the Appellant for a previous dispute.

During the cross-examination of Crystal, Appellant=s trial counsel asked questions that would aide him in establishing that Ms. Anderson did not like the Appellant and that she told Crystal what to say regarding the abuse. Similarly, while cross-examining Ms. Flores, Appellant=s trial counsel asked questions about the possibility of a child being coached and the likelihood of Crystal having been coached as to what to say regarding the alleged abuse. In cross-examining Ms. Anderson, Appellant=s trial counsel elicited testimony regarding previous charges she attempted to file against the Appellant and other details depicting a troubled relationship.

In his closing argument, Appellant=s trial counsel made the argument that Ms. Anderson had become blinded by her own desire to get back at Appellant for a dispute that occurred between them. At the beginning of his closing, Appellant=s trial counsel made the comment that A[i]t is amazing the things you can get your children to believe. To get your children to say.@ He also pointed out the fact that Crystal=s mother did not shed a tear when she was talking about Crystal trying to kill herself because of the abuse she had suffered. He vigorously argued that Ms. Anderson had told both Crystal and her sister that Appellant had abused them and that she had coached them as to what to say regarding such abuse. The State also responded to Appellant=s trial counsel=s defense theory in its closing argument.

A review of the entire record shows that trial counsel never strayed from his position that the victim=s mother had placed the idea of abuse into Crystal=s head and that Appellant had not committed the alleged offenses. Finding nothing deficient about counsel=s representation, we overrule Issue One.

Accordingly, we affirm the trial court=s judgment.

August 19, 2004

DAVID WELLINGTON CHEW, Justice

Before Panel No. 2

Barajas, C.J., McClure, and Chew, JJ.

(Do Not Publish)

[1] Appellant was also charged with aggravated sexual assault of a child in cause number

B-29,488 and in a consolidated jury trial was found guilty and assessed a punishment of fifty years= confinement to run consecutively with this sentence, and a $10,000 fine. Appellant has also appealed his conviction in cause number B-29,488. We affirmed that decision in an unpublished opinion issued this same date. Navariz v. State, No. 08-02-00385-CR (Tex.App.--El Paso August 19, 2004, no pet.h.).

[2] The name Crystal is spelled AKrystal@ in the indictment for both cause numbers. However, throughout the entire record, the name is spelled with a AC= and for the purposes of consistency, we will also adopt such spelling.