Santiago Gonzalez v. The State of Texas--Appeal from 187th Judicial District Court of Bexar County

No. 04-97-00853-CR
Santiago GONZALEZ,
Appellant
v.
The STATE of Texas,
Appellee
From the 187th Judicial District Court, Bexar County, Texas
Trial Court No. 96-CR-2289
Honorable Raymond Angelini, Judge Presiding

Opinion by: Catherine Stone, Justice

Sitting: Phil Hardberger, Chief Justice

Tom Rickhoff, Justice

Catherine Stone, Justice

Delivered and Filed: September 30, 1998

AFFIRMED AS REFORMED

Santiago Gonzalez appeals from his conviction of aggravated sexual assault. Gonzalez was indicted for two counts of aggravated sexual assault. A jury found Gonzalez guilty on both counts and assessed punishment at life imprisonment for each count. On appeal, Gonzalez complains about his trial counsel's ineffectiveness for failing to challenge the indictment, which contained a "graphically prejudicial" description of the alleged offense, and for failing to object to the jury charge, which repeated the graphically prejudicial language of the indictment. Gonzalez also complains of the sufficiency of the evidence to support the conviction and of a mistake in the judgment. For the following reasons, we affirm the judgment as reformed.

Factual and Procedural Background

On March 16, 1996, at approximately 6:30 a.m., seven-year old C. Ortiz (Ortiz) was awakened when Gonzalez, her mother's live-in boyfriend, entered her bedroom and sexually assaulted her. At trial, Ortiz explained that Gonzalez entered her room, placed his hand over her mouth, and "put his middle part in [her middle part]." Using anatomically correct dolls, Ortiz demonstrated this sex act. Gonzalez ignored Ortiz's plea to stop and her protests of pain. Gonzalez warned Ortiz that if she told anyone about the attack, his next attack would be more painful. Ortiz stated that she thought Gonzalez also penetrated her anally during the March 16th attack. According to Ortiz, Gonzalez had attacked her previously on Valentine's Day, causing her to bleed. Ortiz stated that on previous occasions Gonzalez had placed tape over her mouth to prevent her from making noise. Ortiz testified that Gonzalez had been assaulting her since she was in the Headstart program.

Following Gonzalez's morning attack of March 16th, Ortiz went to the bathroom where she noticed she was bleeding. Ortiz informed Gonzalez, and he asked her if she had ever bled before, to which she responded affirmatively. Ortiz told him she had bled on Valentine's Day and on that occasion he had instructed her to apply toilet paper to stop the bleeding. Gonzalez suggested that Ortiz again apply toilet paper. When the bleeding did not stop, Gonzalez told Ortiz to place a sanitary napkin in her underpants and try to sleep. Ortiz also stated that she thought Gonzalez had thrown away some of her clothing during this episode. Ortiz slept for a short while and awoke with continued bleeding. Ortiz again informed Gonzalez, who instructed her to count to ten before waking her mother to tell her she had injured herself on her bedpost or the burglar bar. After waking, Ortiz's mother, Guadalupe Alvarez, noticed that Ortiz was bleeding. Alvarez attempted to wash Ortiz and realized that medical attention was necessary. Gonzalez disagreed, but Alvarez insisted that Ortiz be taken to the hospital.

At the hospital, Alvarez relayed Ortiz's claim of a straddle injury from either the bedpost or the burglar bar to the treating physicians. Due to the excessive bleeding, surgery was necessary to determine the extent and cause of Ortiz's injury. During the surgery the surgeons determined that Ortiz was suffering from a penetrating injury; an injury which was not likely the result of falling on a bedpost or burglar bar. Dr. Bartholomew, the attending urologist, observed that Ortiz's injuries were consistent with sexual abuse. Alvarez was informed that the police needed to be notified of the suspected abuse. Alvarez asked Gonzalez if he had done anything to her daughter, but he denied any involvement and later asked Alvarez if she would stand by him "if anything ever happened."

When Ortiz awoke from the surgery, Alvarez asked her if someone had done something to her. Ortiz expressly denied that either one of her two brothers was responsible, and eventually, she indicated that Gonzalez was the culprit. At trial, Ortiz did not waiver in her statement that Gonzalez had assaulted her. Gonzalez testified in his own behalf and denied assaulting Ortiz.

On March 27, 1996, Ortiz was examined by Dr. Juan Parra, a staff physician with the Alamo Children's Advocacy Center. Dr. Parra observed that Ortiz had two superficial and healing lacerations to her mid labia majora. She had a tear to the posterior of her hymen and a thickening of her hymen. Dr. Parra indicated that the thickening of the hymen coupled with the superficial lacerations of the vulva were highly suggestive of past trauma of a penetrating injury, although he could not determine when the past traumas occurred. His findings were consistent with repeated sexual abuse. Dr. Parra also indicated that a straddle injury would not tear the hymen.

The indictment in the instant case alleged two counts of aggravated sexual assault, count one occurring on or about March 16, 1996, and count two occurring on or about February 14, 1996, and attempted to allege two different means of commission of the offense, vaginal and anal penetration. The jury returned a general verdict of guilty under each count. This appeal follows.

Sufficiency of the Evidence

In points of error thirteen through sixteen, Gonzalez challenges the legal sufficiency of the evidence to support his conviction. In reviewing a legal sufficiency claim, we view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the alleged offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979). In conducting such review, we are mindful that the trier of fact resolves conflicts in testimony, weighs the evidence, and draws reasonable inferences from basic facts to ultimate facts. See Barcenes v. State, 940 S.W.2d 739, 744 (Tex. App.--San Antonio 1997, pet. ref'd). Additionally, the trier of fact is free to believe or disbelieve any or all the testimony of any witness on either side. See Adelman v. State, 828 S.W.2d 418, 421 (Tex. Crim. App. 1992).

The jury in the instant case returned a general verdict of guilty under each count. Thus, we must uphold the verdict if the evidence is sufficient to support a finding of guilt under any of the paragraph allegations submitted. McDuff v. State, 939 S.W.2d 607, 614 (Tex. Crim. App.), cert. denied, 118 S. Ct. 125 (1997). Applying the foregoing principles, the evidence supporting the verdicts includes Ortiz's testimony that Gonzalez penetrated her vaginally on March 16, 1996, which sent her to the hospital with profuse genital bleeding. See Garcia v. State, 563 S.W.2d 925, 928 (Tex. Crim. App. [Panel Op.] 1978) (testimony of sexual assault victim alone is sufficient evidence of penetration to support conviction, even when victim is child). The medical evidence corroborates Ortiz's testimony of a penetrating injury, and refutes the claim of a straddle injury. With respect to Count II, alleged to have occurred on or about February 14, 1996, Ortiz testified that Gonzalez assaulted her on Valentine's Day and that she had bled. Ortiz specifically referenced this date twice in her testimony. Additionally, Dr. Parra's testimony indicates that Ortiz was healing from past penetration trauma. We find the above-stated evidence legally sufficient to support the jury's verdicts. See Jackson, 443 U.S. at 319. Points of error thirteen through sixteen are overruled.

Ineffective Assistance of Counsel

In his first twelve points of error, Gonzalez complains that he was denied effective assistance of counsel because his trial counsel failed to attack his defective indictment and failed to object to the jury charge, which contained language from the defective indictment.

The indictment in the instant case alleged, under each count, two different means by which Gonzalez sexually assaulted Ortiz. Under each count, paragraph A alleged that Gonzalez assaulted Ortiz through vaginal penetration. Paragraph B under each count attempted, inartfully so, to allege assault by anal penetration. Specifically, paragraph B states:

Santiago Gonzalez, hereinafter referred to as defendant, did then and there intentionally and knowingly cause the penetration of the anus of . . . Ortiz, hereinafter referred to as the complainant, a child, by placing the male sexual organ of the defendant in the female sexual organ of the complainant, and the said child was then younger than fourteen (14) years of age.

Gonzalez complains that because paragraph B under each count contains "graphically prejudicial" language which does not amount to an offense under the laws of Texas, but simply describes an impossible act, his trial counsel's performance fell below the constitutionally required standard when he did not attempt to quash the indictment and object to the inclusion of the language in the jury charge.

Our review of Gonzalez's claim of ineffectiveness assistance of counsel is guided by well-established rules first enunciated by the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). In order to prevail on an ineffective assistance of counsel claim, a defendant must show that (1) his trial counsel's performance was deficient, and (2) the deficient performance prejudiced the defense to such a degree that he was deprived of a fair trial. Strickland, 466 U.S. at 694; Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex. Crim. App. 1986). Whether a defendant has received effective assistance of counsel is to be judged by the totality of the representation, not isolated acts or omissions of trial counsel. Wilkerson v. State, 726 S.W.2d 542, 548 (Tex. Crim. App. 1986), cert. denied, 480 U.S. 940 (1987). The prejudice prong of the Strickland analysis must focus on whether the result of the proceeding was fundamentally unfair or unreliable, rather than solely on mere outcome determination. Lockhart v. Fretwell, 506 U.S. 364, 371-73 (1993). Prejudice, in this context, is demonstrated when the defendant shows a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Holland v. State, 761 S.W.2d 307, 314 (Tex. Crim. App. 1988), cert. denied, 489 U.S. 1091 (1989).

At the outset, it appears that part of Gonzalez's complaint is simply tied to his displeasure with being accused of subjecting Ortiz to anal sex. As stated in his brief, the mere allegation of anal sex with a seven-year old victim is the legal equivalent of "throwing gasoline on a burning fire." Gonzalez contends that such allegation was intended to and likely did inflame the minds of the jurors. Implicitly, Gonzalez is arguing that the allegation of anal penetration is completely unfounded, and thus, his trial counsel was ineffective for not attempting to narrow the scope of the case. The allegation of anal penetration has a colorable basis in light of Ortiz's testimony that Gonzalez may have assaulted her in that manner. Therefore, to the extent that anal penetration is an element of the offense of aggravated sexual assault, the use of such wording, no matter how graphic, is required by statute. See Tex. Penal Code Ann. 22.021 (a)(1)(A)(i)(2)(B) (Vernon 1994).

The other aspect of Gonzalez's claim, however, is not without merit. Gonzalez argues, and the State agrees, that because paragraph B, under both counts, describes an impossible act which could not have been proven at trial, trial counsel should have objected to the indictment in the form of a motion to quash, and should have objected to this language's inclusion in the jury charge. However, the State contends that even if trial counsel's performance was deficient in that respect, the errors were not so "professionally unreasonable" so as to undermine our belief in the fundamental fairness of the trial. See Strickland, 466 U.S. at 694. In other words, the State argues that Gonzalez cannot show harm from his trial counsel's alleged missteps. We agree.

Under the stringent Strickland analysis, these trial errors acquire force only if Gonzalez was prejudiced by them. Gonzalez must establish that but for these errors, the result of the proceeding would have been different. See Holland, 761 S.W.2d at 314. Gonzalez's first complaint fails in light of the State's statutory authority to amend a defective indictment. Under article 28.10 of the Texas Code of Criminal Procedure, the State is authorized to amend a defective indictment after it is successfully quashed. See also Tex. Code Crim. Proc. Ann. art. 28.09 (Vernon 1989); Rodriguez v. State, 899 S.W.2d 658, 668 (Tex. Crim. App.), cert. denied, 516 U.S. 946 (1995) (finding that appellant cannot make showing of prejudice for trial counsel's failure to file motion to quash because omissions in indictments were matters of form which could have been amended prior to trial or during trial if appellant did not object).

Gonzalez is also unable to show harm with regard to his trial counsel's failure to object to the jury charge. As noted, the indictment alleged alternative means by which Gonzalez committed each count of aggravated sexual assault: vaginal penetration or anal penetration. The jury returned general verdicts, and thus, we do not know that the jury considered the ill-worded paragraph B under either count in rendering its verdicts. Because we have determined there is legally sufficient evidence to support the verdicts under paragraph A under each count, any error in failing to object to paragraph B is harmless. See Ryan v. State, 937 S.W.2d 93, 104 (Tex. App.--Beaumont 1996, pet. ref'd) (finding that trial counsel's failure to object to jury charge which allowed State to carry its burden of proof on a broader basis than it was entitled to according to evidence was harmless because charge instructed commission of crime by alternate means). Points of error one through twelve are overruled.

Double Jeopardy

By way of points of error seventeen and eighteen, Gonzalez argues the judgment is barred under the Fifth Amendment of the United States Constitution and Article I, Section 14 of the Texas Constitution because Count II contains the same date of offense as Count I.

The judgment incorrectly states the same offense date of March 16, 1996 under both Counts I and II. In the indictment, however, Count I was alleged to have occurred on or about March 16, 1996, and Count II was alleged to have occurred on or about February 14, 1996. This court has the power to correct and reform a trial court's judgment when it has the necessary date and information to do so. Williams v. State, 911 S.W.2d 788, 791 (Tex. App.--San Antonio 1995, no pet.) (quoting Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.--Dallas 1991, pet. ref'd). The record reveals that the jury found Gonzalez guilty of aggravated sexual assault under Count I, committed on or about March 16, 1996, and also found Gonzalez guilty of aggravated sexual assault under Count II, committed on or about February 14, 1996. Because the evidence supports the conviction under Count II, the judgment is reformed to reflect the proper date for the commission of Count II of aggravated sexual assault, February 14, 1996. See id.

As reformed to reflect the proper date of February 14, 1996 for the commission of Count II, the judgment of the trial court is affirmed.

Catherine Stone, Justice

DO NOT PUBLISH

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