ARTURO M. ESCOBAR, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM; Opinion issued October 21, 2009
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-07-01716-CR
............................
ARTURO M. ESCOBAR, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 292nd Judicial District Court
Dallas County, Texas
Trial Court Cause No. F07-50061-V
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OPINION ON REHEARING
Before Justices Bridges, FitzGerald, and Lang
Opinion By Justice FitzGerald
        We deny appellant's motion for rehearing. On our own motion, we withdraw our opinion of April 16, 2009, and vacate our judgment of that date. This is now the opinion of the Court.
        Arturo M. Escobar was convicted of aggravated sexual assault of a child. After finding Escobar guilty, the jury assessed punishment at five years' confinement. In his original briefing, Escobar raised three appellate issues, claiming his conviction should be reversed because the court reporter failed to record an in camera hearing, the evidence was factually insufficient, and his counsel rendered ineffective assistance during the penalty phase of trial. On rehearing, Escobar challenges our ruling concerning the in camera hearing. For all the reasons discussed below, we affirm the trial court's judgment.
Background
        The complainant in this case was five years old at the time of the assault; Escobar's wife was the complainant's babysitter. On the night in question, the complainant's parents had left her and her younger brother with Mrs. Escobar at the Escobars' home. The complainant alleged that Escobar penetrated her sexual organ with his finger while they were watching a videotaped movie together.
Record of the In Camera Hearing
        The State's first witness was the complainant's mother. Following her testimony, the trial court excused the jury and cleared the courtroom for a hearing pursuant to rule 412. That rule directs the trial court to conduct an in camera hearing, recorded by the court reporter, to determine whether proposed evidence of the alleged victim's past sexual behavior is admissible at trial. See Tex. R. Evid. 412(c). At the hearing, defense counsel questioned the complainant's mother concerning matters she had discussed with the complainant's school counselor. The trial court concluded the matters were not relevant to Escobar's prosecution or the complainant's credibility and excluded the evidence.
        Escobar initially argued the court reporter failed to record this in camera hearing. However, the reporter did record the hearing, transcribe the record, and deliver the sealed transcript to the Court. See Tex. R. Evid. 412(d) (requiring record of in camera hearing to be sealed and delivered to appellate court in event of appeal). On rehearing, Escobar argues the record was incorrectly supplemented. Citing appellate rule 34, he complains the reporter did not provide a duplicate copy of the transcript to the district clerk and did not send copies or notices of filing to counsel. See Tex. R. App. P. 34.6(h) (in criminal case in which party requests reporter's record, reporter must prepare duplicate of record and file with trial court clerk). Escobar now asks this Court to unseal the record of the hearing as to counsel, grant leave for him to file supplemental briefing based on that record, and then to decide any supplemental points-and ultimately enter judgment-in his favor.
        We find no error in the supplementation of the record in this case. Rule 412 specifically requires the transcript to be sealed “for delivery to the appellate court” as the reporter did in this case. Tex. R. Evid. 412(d). The nature of the transcript requires its distribution to be limited in this manner. As this Court has stated, rule 412 is a “rape shield law,” intended to protect a complainant's previous sexual conduct from exposure except in narrowly defined circumstances. Wofford v. State, 903 S.W.2d 796, 798 (Tex. App.-Dallas 1995, pet. ref'd). The rule's requirement of an in camera hearing allows the trial court to determine privately whether to admit any evidence of the complainant's past sexual behavior and to limit any related questioning. Id. The sealed record of the hearing preserves any excluded testimony for appellate purposes. Id. However, unsealing the record would make public the information the rule intends to keep private and would, therefore, defeat the very purpose of the rule. Kesterton v. State, 959 S.W.2d 247, 248 (Tex. App.-Dallas 1997, no pet.). For this reason, “an appellant is not entitled to review the sealed record from an in camera hearing conducted pursuant to rule 412 to determine what complaints to raise on appeal.” Id. at 249. We deny Escobar's request to have the record unsealed.
        Accordingly, we overrule Escobar's issue, in its entirety, concerning the record of the in camera hearing.
Factual Insufficiency of the Evidence
        In his second issue, Escobar argues the evidence is factually insufficient to support his conviction. His factual-insufficiency challenge rests on a specific conflict in the evidence: the complainant testified at trial that she and her younger brother were alone with Escobar when he committed the offense, but other evidence tended to show a number of other persons were present at the time of the purported offense.
        In a factual sufficiency review, we view all of the evidence in a neutral light and ask whether a jury was rationally justified in finding guilt beyond a reasonable doubt. See Watson v. State, 204 S.W.3d 404, 415 (Tex. Crim. App. 2006). To reverse a case on a factual sufficiency challenge we must be able to say, with some objective basis in the record, that the great weight and preponderance of evidence contradicts the jury's verdict. Id. at 417. A factual sufficiency challenge “permits the reviewing court to substitute its judgment for the jury's on [credibility and weight] questions 'albeit to a very limited degree.'” Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006) (citing Watson, 204 S.W.3d at 415, 417). But we give deference to a jury's decision regarding what weight to give contradictory testimonial evidence because the decision is most likely based on an evaluation of credibility and demeanor, which the jury is in the better position to judge. Lancon v. State, 253 S.W.3d 699, 706 (Tex. Crim. App. 2008).
        Escobar's challenge to the sufficiency of the evidence is limited to a purported conflict in the evidence concerning who was present when the complainant and he were watching the movie. He points to the complainant's trial testimony, in which she states she and her brother were the only ones watching the movie with Escobar. He compares that testimony with the testimony of the forensic interviewer, who said the complainant told her Escobar's wife and son were present that night.   See Footnote 1  Finally Escobar relies on the testimony of his wife, his son, and a family friend who testified they were present that night. For purposes of this issue we will assume, without deciding, that the issue of who was present was material. Regardless, the conflict presents a question of the credibility of the witnesses who were describing the relevant events. Escobar argues this case is an appropriate one for us to substitute our judgment for the jury's. See Marshall, 210 S.W.3d at 625. We conclude the jury in this case was in the better position to judge credibility and demeanor. See Lancon, 253 S.W.3d at 706. We defer to the jury on this issue and overrule Escobar's second issue.
Ineffective Assistance of Counsel
        In his third issue, Escobar contends he received ineffective assistance of counsel during the penalty phase of his trial when his attorney “urged” the jury to conclude Escobar would be deported if he were granted probation. By doing so, Escobar argues, his attorney deprived Escobar of the availability of the full range of punishment.
        The issues of immigration status and possible deportation arose during the testimony of Escobar's brother, Antonio. On direct, Escobar's attorney asked Antonio questions that could lay a foundation for a probated sentence. The attorney asked whether Escobar had been convicted of a felony in Ecuador, before he came to the United States; Antonio replied that he had not. On cross, the State elicited testimony from Antonio, without objection, that Escobar was a legal resident (but not a citizen) of the United States and that Escobar would probably be deported because of his conviction. Escobar's attorney then elicited testimony from Antonio (and subsequently from all other penalty-phase witnesses) concerning Escobar's likelihood of success if given probation and concerning willingness to help him with the probation and rehabilitation process. In closing, the issue of deportation arose again: Escobar's attorney explained that Escobar was likely to be deported regardless of whether he was given probation or was imprisoned and subsequently released. During deliberations, the jury sent a note asking:
 
If probation is selected, does he complete probation before being deported or is he deported during his probation?
 
 
 
If deported during probation period, does he finish out probation period in his native country?
 
The trial court answered, “You have all the law necessary for you to assess punishment in this case.” Escobar argues that but for his attorney's conduct, the jury would have assessed his punishment at probation.
        To prevail on an ineffective assistance of counsel claim, an appellant must prove by a preponderance of the evidence that (1) counsel's representation fell below an objective standard of reasonableness, and (2) there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687-88, 695 (1984); Hernandez v. State, 988 S.W.2d 770, 772 (Tex. Crim. App. 1999). Any allegation of ineffectiveness must be firmly founded in the record. Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005). We indulge a strong presumption the defense counsel's conduct falls within the wide range of reasonable, professional assistance and that the challenged actions might be considered sound trial strategy. Jackson v. State, 877 S.W.2d 768, 770-71 (Tex. Crim. App. 1994). The appellant must prove by a preponderance of the evidence that there is, in fact, no plausible professional reason for a specific act or omission. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). In most cases, a silent record that provides no explanation for counsel's actions will not overcome the strong presumption of reasonable assistance. Thompson v. State, 9 S.W.3d 808, 813-14 (Tex. Crim. App. 1999).
        In this case, Escobar filed a motion for new trial, but he did not raise ineffective assistance of counsel in that motion. Thus, as in Thompson, the record provides no discernible explanation of the motivation behind counsel's decisions not to object to the State's questions concerning immigration status and to raise the deportation issue himself in closing arguments. However, counsel's decisions could well have been be the result of strategic design. The entire penalty-phase proceeding-all witness examinations and closing arguments-appeared to be geared toward persuading the jury to recommend a probated sentence. Indeed, read in context, counsel's deportation argument was an effort to persuade the jury that Escobar had already been punished by his very conviction: that regardless of the punishment the jury assessed, Escobar would not be able to remain in the United States. Escobar has not shown his counsel's representation “fell below an objective standard of reasonableness.” See Strickland, 466 U.S. at 687-88. We conclude the record is insufficient to support his complaint of ineffective assistance on direct appeal. We overrule his third issue as well.
        We have decided each of Escobar's issues against him. Accordingly, we affirm the trial court's judgment.
 
 
                                                          
                                                          KERRY P. FITZGERALD
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
071716F.U05
 
Footnote 1 The interviewer also testified the complainant told her Escobar's wife and son were asleep, and the interviewer did not know whether they were in the same room as the complainant or not.