Murral Glen Tadych v. The State of Texas--Appeal from 183rd District Court of Harris County

Opinion issued December 20, 2007

In The

Court of Appeals

For The

First District of Texas

NO. 01-06-00620-CR

MURRAL GLEN TADYCH, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 183rd District Court

Harris County, Texas

Trial Court Cause No. 0982418

MEMORANDUM OPINION

Appellant Murral Glen Tadych was convicted by a jury of aggravated sexual assault for an offense committed on June 1, 1990. See Act of July 18, 1987, 70th Leg., 2d C.S., ch. 16, 1, sec. 22.021(a)(1)(B)(iii), (a)(2)(B), (b), 1987 Tex. Gen. Laws 80, 80 (1987 Penal Code section 22.021(a)(1)(B)(iii), (a)(2)(B), (b)). The jury assessed punishment at imprisonment for five years. Appellant brings two issues, challenging the factual sufficiency of the evidence and claiming ineffective assistance of counsel. We affirm.

Background

Appellant was the stepfather of the complainant, L.T. At the time of the offense in 1990, appellant was married to L.T.'s mother, Kimberly Aaron. Appellant, Aaron, L.T., and appellant's and Aaron's two younger sons all lived together. Appellant's two older children, R. and A., were visiting for the summer. In 1990, L.T. was four and her stepbrother R. was 14.

L.T. testified at trial that on the night of the offense, she, her stepbrother R., and appellant stayed up while her mother and the other children went to bed. After R. fell asleep on the couch, appellant asked her to come sit in his lap on a rocking chair. She testified that appellant eventually massaged her thighs and rubbed the outside of her underwear, before putting his hand inside her underwear, touching the outside of her female sexual organ, and penetrating it with his finger. She did not remember crying out in pain, and there was no bleeding. When appellant finally stopped, L.T. testified that he told her to be quiet and not to tell anyone. L.T testified that R. was asleep on the couch while this occurred. L.T. told her mother what happened a day or two later.

L.T. testified that she remembered instances up until the time she was eight, when she would wake up in the middle of the night to find appellant sitting on her bed, or walking out of her room. There were also instances when she would wake up in the morning and some of her clothes were off, and she did not remember removing them.

L.T. testified about another incident when she was eight, in which she was with appellant and R., who was then 18. Appellant and R. were drinking beer, and appellant got L.T. to drink what she believed was Sprite and white wine. L.T. fell asleep and awoke to find appellant kissing her, including kissing her on her female sexual organ. L.T. testified that appellant told her he loved her, to be quiet, and not to tell anyone. L.T. told a friend about this incident when she was 16, and L.T. told her mother in December 2003. L.T. and her mother thereafter began seeing a therapist, who encouraged L.T. to report the abuse to the police. L.T. stated at trial that she never liked appellant.

Appellant testified at trial that on the night of the 1990 incident, L.T. climbed into his lap in order to show off in front of her stepbrother R., on whom she had a "crush." Appellant testified that L.T. raised her "fanny" in the air, and he eventually "swatted" her on the "fanny" and told her she needed to "cover up." Appellant denied touching L.T.'s female sexual organ. Concerning the 1994 incident, appellant denied giving L.T. anything to drink that she did not want and described a knee brace he was wearing at the time, which went from the bottom of his buttocks down to his ankle. Appellant testified that the brace made it difficult to move around.

Aaron, appellant's mother, testified at trial that after L.T. told her about the 1990 incident, she confronted appellant, who initially denied that anything inappropriate occurred. Aaron then testified to the following:

[H]e started crying and he told me that he had been drinking, that he did have [L.T.] sitting in his lap, that if anything happened he didn't mean it to happen. He was so sorry. You know, it would never happen again. He would never intentionally hurt [L.T.].

Aaron testified that appellant did not specifically tell her that he "touched" L.T.

Appellant and Aaron divorced in 1997, and Aaron began denying appellant visitation with their two sons in 2003. Appellant was charged for both the 1990 and 1994 incidents. The jury acquitted him of the 1994 incident and convicted him of the 1990 incident.

Discussion

In issue one, appellant challenges the factual sufficiency of the evidence concerning his contact with L.T.'s female sexual organ. A person commits the offense of aggravated sexual assault if the person intentionally or knowingly causes the sexual organ of a child to contact or penetrate the mouth, anus, or sexual organ of another person, including the actor, and the victim is younger that 14 years of age. 1987 Penal Code section 22.021(a)(1)(B)(iii), (a)(2)(B). The indictment alleged that appellant "did . . . unlawfully, intentionally and knowingly cause the penetration of the FEMALE SEXUAL ORGAN of [L.T.] hereinafter called the Complainant, a person younger than fourteen years of age and not the spouse of the Defendant, by placing HIS FINGER in the FEMALE SEXUAL ORGAN of the Complainant."

When conducting a factual-sufficiency review, we view all of the evidence in a neutral light. Cain v. State, 958 S.W.2d 404, 408 (Tex. Crim. App. 1997). We will set the verdict aside only if (1) the evidence is so weak that the verdict is clearly wrong and manifestly unjust or (2) the verdict is against the great weight and preponderance of the evidence. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). Under the first prong of Johnson, we cannot conclude that a conviction is "clearly wrong" or "manifestly unjust" simply because, on the quantum of evidence admitted, we would have voted to acquit had we been on the jury. Watson v. State, 204 S.W.3d 404, 417 (Tex. Crim. App. 2006). Under the second prong of Johnson, we cannot declare that a conflict in the evidence justifies a new trial simply because we disagree with the jury's resolution of that conflict. Id. Before finding that evidence is factually insufficient to support a verdict under the second prong of Johnson, we must be able to say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury's verdict. Id. In conducting a factual-sufficiency review, we must also discuss the evidence that, according to the appellant, most undermines the jury's verdict. See Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).

We may not re-weigh the evidence and substitute our judgment for that of the fact-finder. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). The fact-finder alone determines what weight to place on contradictory testimonial evidence because that determination depends on the fact-finder's evaluation of credibility and demeanor. Cain, 958 S.W.2d at 408-09. As the determiner of the credibility of the witnesses, the fact-finder may choose to believe all, some, or none of the testimony presented. Id. at 407 n.5. The standard for reviewing the factual sufficiency of the evidence is whether, after considering all of the evidence in a neutral light, the jury was rationally justified in finding guilt beyond reasonable doubt. Watson v. State, 204 S.W.3d 404, 415 (Tex. Crim. App. 2006).

Appellant argues the evidence that the 1990 offense occurred is not reasonable because appellant's son R. could not have slept through the entire incident. There was no physical evidence of penetration, and appellant denied any misconduct. Appellant summarizes his argument by stating, "It is obvious that [L.T.] lied on Appellant because she never like [sic] him and she wanted to help her mother win the custody battle for her two sons."

We hold that in its role as fact-finder, the jury was rationally justified in finding guilt beyond reasonable doubt based on the evidence adduced at trial. We overrule issue one.

In issue two, appellant claims his trial counsel was ineffective because she did not impeach Aaron's credibility with a document dated July 22, 1994, entitled "DECREE GRANTING CHANGE OF NAME, " which purported to change L.T.'s surname to Tadych, appellant's surname. The document was not signed by a judge, and Aaron admitted to signing the names of the attorney ad litem and L.T.'s birth father.

The document, defendant's exhibit 4, was initially discussed at trial when appellant's counsel asked how L.T.'s surname was changed to Tadych. The State objected on the grounds of relevance, the trial court sustained the objection, and appellant's counsel later made a bill of proof. At that time, appellant's counsel stated she wanted to establish that Aaron created a document in July 1994, the same time as the alleged second incident, that purported to change L.T.'s surname to appellant's surname. Aaron testified that the creation of the document was appellant's idea.

The trial court expressed concern that both Aaron and appellant had potential criminal liability in creating the document. Appellant's counsel told the trial court that she did not want to tell the jury that the document was fraudulent, but instead wanted to introduce the document solely to establish the date when Aaron wanted to change L.T.'s surname as being the same as the alleged second incident.

Appellant argues that his trial counsel was ineffective because she should have impeached Aaron with the "forged" name-change decree to show that Aaron was capable of manipulating testimony to achieve her goal of terminating appellant's visitation rights to his and Aaron's youngest children. Appellant also argues that because L.T. testified that she disliked appellant, if trial counsel had impeached Aaron with the "forged" decree, then the jury might have believed that L.T. was testifying solely to help her mother. There was no motion for new trial or other evidence of the strategy of appellant's trial counsel.

To be entitled to a new trial based on ineffective assistance, an appellant must show that counsel's performance was so deficient that he was not functioning as acceptable counsel under the Sixth Amendment, and there is a reasonable probability that, but for counsel's error, the result of the proceedings would have been different. See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); Hernandez v. State, 726 S.W.2d 53, 55-57 (Tex. Crim. App. 1986). The defendant bears the burden to prove ineffective assistance of counsel. See Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. Allegations of ineffective assistance of counsel must be firmly founded in the record. McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996).

Because there is no evidence of trial counsel's strategy in not seeking to impeach Aaron, appellant cannot prevail unless there is no conceivable strategy as a matter of law. We may not speculate on why counsel acted as she did, and we do not conclude as a matter of law that no strategy could exist. See Bone v. State, 77 S.W.3d 828, 835 (Tex. Crim. App. 2002) (if reviewing court can speculate about mitigating evidence, then it just as logically might speculate about evidence of further aggravating evidence).

We overrule issue two.

Conclusion We affirm the judgment of conviction.

Sam Nuchia

Justice

Panel consists of Justices Nuchia, Jennings, and Keyes.

Do not publish. Tex. R. App. P. 47.2(b).