Uribe, Humberto v. The State of Texas--Appeal from 262nd District Court of Harris County

Affirmed and Memorandum Opinion filed May 1, 2003

Affirmedand Memorandum Opinion filed May 1, 2003.

In The

Fourteenth Court of Appeals

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NOS. 14-02-00097-CR and

14-02-00098-CR

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HUMBERTO URIBE, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 262nd District Court

Harris County, Texas

Trial Court Cause Nos. 889,123 and 866,472

M E M O R A N D U M O P I N I O N

A jury found appellant guilty of two felony counts of indecency with a child, and assessed punishment at seventy-five years and one day in the Texas Department of Criminal Justice, Institutional Division for each offense. On appeal, appellant complains that (1) the trial court erred by admitting testimony in the punishment phase regarding the future impact of this offense on the complainant, (2) the trial court erred in allowing an expert to testify to complainant=s truthfulness, and (3) appellant=s attorney committed five acts of ineffective assistance of counsel by failing to object and by eliciting testimony. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Appellant=s niece, a minor, came to live with appellant=s family. Later, the niece accused appellant of having sexual intercourse with her multiple times. No physical evidence existed to prove the accusations. Therefore, the State called nine witnessesCincluding two doctors, a psychologist, and a therapist to testify to the possible abuse. The jury found appellant guilty of two counts of indecency with a child.

During the punishment phase, the State called only one witnessCthe complainant=s therapist. The jury sentenced appellant to seventy-five years and one day for each offense.

DISCUSSION

Appellant raises seven points of error. First, appellant contends the trial court abused its discretion in the punishment phase by allowing an expert to testify to the future impact of this offense. Second, appellant argues one expert improperly commented on complainant=s veracity. Combined in his next five points of error, appellant contends he received ineffective assistance of counsel because his attorney failed to object and elicited testimony from the State=s witnesses who commented on the complainant=s veracity and because his attorney failed to object that prosecutor commented on appellant=s right to a jury trial.

 I. Expert Testifying to Complainant=s Future Abuse

We first address appellant=s claim that the expert should not have been able to testify in the punishment phase to the future impact of this offense on the complainant. As we explain below, this complaint fails.

First, appellant=s objection at trial did not comport with his issue now on appeal. We will not overturn a trial court=s decision to admit or exclude testimony except for a clear abuse of discretion. See Fairow v. State, 943 S.W.2d 895, 901 (Tex. Crim. App. 1997). To provide evidence of a clear abuse of discretion and to preserve a complaint for review, appellant must have presented a timely and specific objection. Tex. R. App. P. 33.1(a). If the objection at trial does not comport with the issue on appeal, appellant has not preserved error. See Ibarra v. State, 11 S.W.3d 189, 197 (Tex. Crim. App. 1999). At trial, appellant=s counsel objected to the testimony, explaining that it called for the witness to speculate. However, on appeal appellant claims this testimony was inadmissible victim impact testimony. Because the objection at trial does not mirror his issue raised on appeal, this issue is overruled.

II. Speculation Objection to the Veracity of the Complainant

Next, we address appellant=s argument on appeal that the trial court erred because it allowed an expert to comment on the complainant=s veracity. Whether the psychiatrist=s testimony crossed the line from permissible testimony that would assist the jury in deciding the case to impermissibly telling the jury he thought the complainant was telling the truth is a close question. See Schutz v. State, 957 S.W.2d 52 (Tex. Crim. App. 1997); Yount v. State, 872 S.W.2d 706 (Tex. Crim. App. 1993). However, as we explain below, here we do not have that issue here because, again, appellant=s objection does not comport with the issue now raised on appeal.

The testimony and objection are set out below:

Q. Dr. Frank, obviously, you cannot tell this Jury whether [the complainant] was sexually abused, can you?

A. No, I can=t.

Q. Is the [Post Traumatic Stress Disorder] that you observed in herCin her a consistent symptom that you sometimes see in victims of sexual abuse?

A. Yes, it is.

Q. Dr. Frank, did you ever question [the complainant] about the allegation she was making or about the abuse?

A. No, I did not.

Q. Did you ever refer to it or at least allude to it in your discussions?

A. In the discussion with her, it was alluded to in that the mention of her the second time, that her uncle wouldCwould come and get her again. And asked what she meant and, you know, she referred back to the rape that had happened to her.

Q. And, Doctor, in either of the two evaluations or in anythingCany of your conversations or discussions with [the complainant], did you ever observe or hear anything thatCthat, let=s say, no one gave you cause to doubt your diagnosis?

A. No.

Q. And number two, gave you reason to look more skeptically at the allegation of sexual abuse?

MR. BROOKS: Your Honor C

MR. TRENT: It=s a poor way of asking the question. Let me rephrase.

THE COURT: Sustained.

MR. TRENT: Let me rephrase.

Q. Doctor, did anything you observed or hear or see in your discussions and treatment of [the complainant]Cshould say evaluation instead of treatment, give you any reason to believe she had not been sexually abused?

MR. BROOKS: Calls for speculation, Your Honor. I object.

THE COURT: Overruled.

A. Nothing gave me reason to doubt anything.

As stated earlier, we will not overturn a trial court=s decision to admit or exclude testimony without a clear abuse of discretion. See Fairow, 943 S.W.2d at 901. To show the trial court abused its discretion, the appellant must object. Tex. R. App. P. 33.1(a); Ibarra, 11 S.W.3d at 197. At trial, appellant=s counsel objected that the testimony was speculative. However, on appeal, appellant argues that the doctor improperly commented on the complainant=s truthfulness. The two are fundamentally different objections. True, one of the reasons for not allowing a psychiatrist or psychologist to state whether someone is telling the truth may be based in part on a sense that it may be speculation. However, the real reason to exclude this testimony is that it invades the jury=s province. Schutz, 957 S.W.2d at 59B74. It is for the jury, not an expert, to decide if a witness is telling the truth. The expert=s responsibility is to assist the jury in reaching that decision, not to tell the jury what its decision should be. See Tex. R. Crim. Evid. 702. For these reasons, a simple speculation objection did not inform the court of the complaint made on appeal, and it did not give the trial court an opportunity to consider the issue appellant now brings on appeal. See Kipp v. State, 876 S.W.2d 330, 336 (Tex. Crim. App. 1994) (stating appellant=s point of error regarding an improper opinion on the credibility of complainant is different from the speculation objection made at trial). Because appellant=s objection does not comport with his point of error, appellant has not preserved this issue for appeal. See Penry v. State, 903 S.W.2d 715, 763 (Tex. Crim. App. 1995), cert. denied, 516 U.S. 977 (1995). We overrule appellant=s second issue.

III. Ineffective Assistance of Counsel

We will now address appellant=s last five issuesCthat he received ineffective assistance of counsel. In support of this claim, he alleges that his trial attorney failed to object three times and elicited harmful testimony in one instance. Appellant also complains that his trial attorney did not object when he claims the State commented on his right to a jury trial. Because appellant failed to obtain a hearing on motion for new trial to allow his lawyer to testify concerning his representation, we must overrule these issues.

To prove ineffective assistance of counsel, a defendant must show that (1) counsel=s performance fell below an objective standard of reasonableness under prevailing professional norms, and (2) there is a reasonable probability that, but for counsel=s deficient performance, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 694 (1984); Rodriquez v. State, 899 S.W.2d 658, 664 (Tex. Crim. App. 1995). When reviewing a claim of ineffective assistance of counsel, we must give much deference to trial counsel and presume counsel made all significant decisions in the exercise of reasonable professional judgment. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999); Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994).

First, appellant must show his trial counsel=s performance fell below an objective standard. Appellant bears the burden to show counsel=s ineffectiveness by a preponderance of the evidence, and allegations of ineffectiveness must be firmly founded in the record. Thompson, 9 S.W.3d at 813; Dewberry v. State, 4 S.W.3d 735, 757 (Tex. Crim. App. 1999), cert. denied, 529 U.S. 1131 (2000). Except in rare cases, a claim of ineffective assistance must be brought by application for writ of habeas corpus rather than direct appeal; this is to develop the facts and allow trial counsel to explain his actions. See Robinson v. State, 16 S.W.3d 808, 813 (Tex. Crim. App. 2000); see also Kemp v. State, 892 S.W.2d 112, 115 (Tex. App.CHouston [1st Dist.] 1994, pet. ref=d) (holding that generally, the trial court record is inadequate to properly evaluate ineffective assistance of counsel claims); Beck v. State, 976 S.W.2d 265, 266 (Tex. App.CAmarillo 1998, pet. ref=d) (holding that a trial record only is inadequate for ineffective assistance of counsel claims).

Here, appellant argues his attorney erred by failing to object and by eliciting specific testimony. However, we cannot conclude the attorney was deficient because the record does not contain the attorney=s reasons for his actions and does not address the ineffective assistance of counsel arguments. See Grant v. State, 33 S.W.3d 875, 879B80 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d). Without this evidence in the record, appellant fails the first part of the Strickland test, and because appellant failed the first prong, we are not required to address the second prong. Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001). Therefore, we overrule his four points of error.

In conclusion, we overrule all points of error by the appellant and affirm the judgments of the lower court.

/s/ Wanda McKee Fowler

Justice

Judgment rendered and Memorandum Opinion filed May 1, 2003.

Panel consists of Chief Justice Brister, Justices Hudson and Fowler.

Do Not Publish C Tex. R. App. P. 47.2(b).