Durden, Gerald Jerod v. The State of Texas--Appeal from 248th District Court of Harris County

Affirmed and Memorandum Opinion filed September 18, 2003

Affirmed and Memorandum Opinion filed September 18, 2003.

In The

Fourteenth Court of Appeals

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NO. 14-02-00818-CR

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GERALD JEROD DURDEN, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from 248th District Court

Harris County, Texas

Trial Court Cause No. 905,464

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

Appellant, Gerald Jerod Durden, appeals his conviction for aggravated sexual assault of a child. Specifically, he contends (1) he was denied effective assistance of counsel; (2) the evidence was legally insufficient to support the conviction; (3) the evidence was factually insufficient to support the conviction; and (4) the trial court erred in denying his motion for new trial. We affirm.

 

Facts

Appellant was married to Lakeysha Brooks and fathered one child with her, the complainant. Ms. Brooks has two other children from a previous relationship with Dennis Wimbley. On July 23, 2001, appellant was alone with all three children while Ms. Brooks was working. According to the State s evidence, appellant called the complainant into his room, removed her panties, and touched her private part with his hand and his private part. Appellant ejaculated on the complainant. Later that evening, the complainant told Mr. Wimbley about the assault. He called the police and appellant was arrested.

The results of a medical examination on the complainant were consistent with her allegations. The outside of her genitalia was red and irritated, and her hymen was swollen. Further, semen was discovered on her panties. DNA testing confirmed that the semen was appellant s.

Ineffective Assistance of Counsel

In appellant s first point of error, he contends his trial counsel was ineffective because he failed to (1) preserve error on the trial court s denial of his challenge for cause during voir dire and (2) object to the prosecutor s alleged misstatement of the facts during closing argument.

An appellant contending that counsel s assistance was ineffective must meet two requirements. First, appellant must show his counsel s performance was deficient; second, he must demonstrate that the deficient performance prejudiced his defense. See Strickland v. Washington, 466 U.S. 668, 687 (1984). Appellant must prove such ineffectiveness by a preponderance of the evidence. See Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002); Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).

In proving prong one, an appellant must show counsel s representation fell below an objective standard of reasonableness. Bone, 77 S.W.3d at 833. However, we indulge a

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strong presumption that counsel was competent. Id. [T]he record on direct appeal will generally not be sufficient to show that counsel s representation was so deficient as to meet the first part of the Strickland standard as [t]he reasonableness of counsel s choices often involves facts that do not appear in the appellate record. Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003) (quoting Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002)). Consequently, the record is best developed by a collateral attack, such as a motion for new trial. Jackson v. State, 973 S.W.2d 954, 957 (Tex. Crim. App. 1998).

Appellant filed a motion for new trial in this case; however, he did not raise ineffective assistance of counsel. Further, after a careful review of the record, there is no firm evidentiary support to overcome the presumption that trial counsel s actions were part of reasonable trial strategy. Bone, 77 S.W.3d at 836 (counsel should be given an opportunity to explain his actions before being denounced as ineffective). Accordingly, appellant fails to meet the first prong of Strickland. Therefore, we overrule his first point of error.

Legal and Factual Sufficiency

In appellant s second and third points of error, he contends the evidence was legally and factually insufficient to support his conviction. To be guilty of aggravated sexual assault, there must be evidence that appellant intentionally or knowingly caused the sexual organ of a child to contact or penetrate the mouth, anus, or sexual organ of another person, including the appellant. Tex. Pen. Code Ann. 22.021(a)(1)(B)(iii), (a)(2)(B) (Vernon 2003). Additionally, the victim must be younger than fourteen years of age and not the appellant s spouse. Id. In a legal sufficiency challenge, we review the evidence in the light most favorable to the verdict to determine if any rational fact finder could have found the essential elements of the crime beyond a reasonable doubt. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). We consider all evidence presented at trial; however, we do not re-weigh the evidence or substitute our judgment for that of the fact finder. Id. The jury, is the sole judge of the credibility of witnesses and of the strength of the evidence. Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Crim. App. 1999). Therefore, if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, we must affirm. McDuff v. State, 939 S.W.2d 607, 614 (Tex. Crim. App. 1997).

In reviewing factual sufficiency of the evidence, it is our duty to examine the jury s weighing of the evidence. Clewis v. State, 922 S.W.2d 126, 133, 134 (Tex. Crim. App. 1996). Thus, we must determine whether a neutral review of all of the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury s determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000).

Appellant specifically contends there was insufficient evidence that the complainant was not his spouse. Circumstantial evidence may be used to prove an essential element of the offense charged. See Wilson v. State, 654 S.W.2d 465, 467 (Tex. Crim. App. 1983). Here, the evidence showed that complainant was only nine years old at the time of the assault. Additionally, there was testimony that appellant was her biological father. Based on their relationship, the jury could rationally infer that the child and appellant were not married. See Jones v. State, 817 S.W.2d 854, 856 (Tex. App. Houston [1st Dist.] 1991, no pet.) (circumstantial evidence sufficient where child was seven years old and defendant was biological father). Appellant further contends that he was not the complainant s biological father. Nonetheless, he does not deny that he was married to the complainant s mother when the sexual assault took place. The jury could conclude appellant was already married; therefore, he was not married to the complainant. Ferguson v. State, 579 S.W.2d 2, 6 7 (Tex. Crim. App. 1979) (victim was defendant s stepdaughter). Accordingly, we find there was legally sufficient evidence that appellant was not the complainant s spouse. Further, after reviewing the evidence we find that the proof of guilt was not so obviously weak as to undermine confidence in the jury s determination. Johnson, 23 S.W.3d at 11. Thus, we find the evidence was also factually sufficient to support the conviction. We overrule appellant s second and third issues.

Motion for New Trial

In appellant s fourth issue, he contends the trial court erred in denying his motion for new trial based on newly discovered evidence. Appellant argued during the hearing on his motion for new trial that the complainant later recanted her allegations of sexual assault. Additionally, he claimed that without the complainant s testimony, the only evidence against him was inconclusive DNA test results.

A ruling on a motion for new trial will not be disturbed on appeal absent an abuse discretion. Salazar v. State, 38 S.W.3d 141, 148 (Tex. Crim. App. 2001). Article 40.001 of the Texas Code of Criminal Procedure provides that [a] new trial shall be granted an accused where material evidence favorable to the accused has been discovered since trial. Tex. Code Crim. Proc. Ann. art. 40.001 (Vernon Supp. 2003). An appellant is entitled to have his motion for new trial granted if (1) the newly discovered evidence was unknown to him at the time of trial; (2) his failure to discover the new evidence was not due to his lack of due diligence; (3) the new evidence is admissible and not merely cumulative, corroborative, collateral, or impeaching; and (4) the new evidence is probably true and will probably bring about a different result in a new trial. Moore v. State, 882 S.W.2d 844, 849 (Tex. Crim. App. 1994) (citing Drew v. State, 743 S.W.2d 207, 226 (Tex. Crim. App. 1987)).

Appellant s contentions are meritless for two reasons. First, appellant s supporting affidavit was not offered into evidence during the hearing. Motions for new trial are not self-proving. George v. State, 20 S.W.3d 130, 135 (Tex. App. Houston [14th Dist.] 2000, pet. ref d). There were no witnesses called to testify in the hearing, and the affidavit is not present in the record from the hearing.[1] All we have on appeal are the pleadings; therefore, we have no evidence to sustain his issue. Cf. Martins v. State, 52 S.W.3d 459, 468 (Tex.App. Corpus Christi 2001, no pet.) (affidavits attached to a motion for new trial are only pleadings and are not evidence unless introduced into evidence).

Second, a new trial is not required when a recantation is not credible in light of trial evidence. Driggers v. State, 940 S.W.2d 699, 709 (Tex. App. Texarkana 1996, pet. ref d). Here, although appellant inexplicably labels it inconclusive, the DNA evidence is strong. It established that the sperm found in the complainant s panties belonged to appellant. Further, the medical examination on the day of the sexual assault confirmed that the complainant s genitalia and hymen were injured. Finally, the medical records admitted at trial showed that the complainant felt guilty about the assault. If the complainant recanted, the trial court could have found it was not credible. See id. Consequently, the trial court did not abuse its discretion in denying appellant s motion for new trial. Thus, we overrule appellant s final point of error.

Having overruled appellant s issues, we affirm the judgment of the trial court.

/s/ Charles W. Seymore

Justice

Judgment rendered and Memorandum Opinion filed September 18, 2003.

Panel consists of Justices Anderson, Seymore, and Guzman.

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

[1] In his motion for new trial, he states that an affidavit from the person to whom the complainant recanted is attached as an exhibit. However, there is no such affidavit in the clerk s record.