Ruben Alvino Cano v. The State of Texas--Appeal from 186th Judicial District Court of Bexar County

MEMORANDUM OPINION

No. 04-04-00011-CR

Ruben A. CANO,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 186th Judicial District Court, Bexar County, Texas

Trial Court No. 2002-CR-7768

Honorable Maria Teresa Herr, Judge Presiding

Opinion by: Sandee Bryan Marion, Justice

Sitting: Paul W. Green, Justice

Karen Angelini, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: October 13, 2004

AFFIRMED

A jury found defendant, Ruben A. Cano, guilty of sexual assault of a child, and assessed punishment at life in the Institutional Division of the Texas Department of Criminal Justice. On appeal, defendant asserts the trial court prevented his attorney from pursuing a valid defense, he received ineffective assistance of counsel, and the evidence is factually insufficient to support the jury's verdict. Because all issues of law are settled, our opinion only advises the parties of the court's decision and the basic reasons for it. See Tex. R. App. P. 47.4. We affirm.

DEFENSE STRATEGY

Defendant contends his trial counsel attempted to discredit a witness's ability to identify the complainant by her cough by asking the following question during cross-examination: "So, you're assuming that you heard someone coughing and that was Josie, right?" The State objected that the question had been asked and answered, and the trial court sustained the objection. In his first issue, defendant asserts the trial court's sustaining of the objection prevented his attorney from conducting a thorough defense.

We review a trial court's determination on the admissibility of evidence under an abuse of discretion standard. Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000). Defendant's complaint is without merit because defense counsel had previously questioned the witness about the "coughing" and counsel questioned the witness about contradictions between her testimony and the statement she gave to the police. Defendant has not demonstrated the trial court abused its discretion in sustaining the State's objection.

EFFECTIVE ASSISTANCE OF COUNSEL

In his second and third issues, defendant asserts he received ineffective assistance of counsel because his attorney failed to (1) request a pretrial conference at which a motion in limine could be heard and ruled upon; (2) request a competency examination; and (3) timely request reasonable notice of the State's intent to introduce evidence of other crimes, wrongs, or acts. We review defendant's claim of ineffective assistance of counsel under the established standard of review. See Strickland v. Washington, 466 U.S. 668, 690, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999).

Although defendant filed a motion for new trial, he did not raise an ineffective assistance of counsel claim. Because no ineffective assistance claim was advanced in the motion, no hearing was conducted to explore defense counsel's trial strategy. In the absence of a proper evidentiary record, it is extremely difficult to show that trial counsel's performance was deficient. See Gibbs v. State, 7 S.W.3d 175, 179 (Tex. App.--Houston [1st Dist.] 1999, pet. ref'd); Mares v. State, 52 S.W.3d 886, 891 (Tex. App.--San Antonio 2001, pet. ref'd) (failure to file pre-trial motions not categorically deemed ineffective assistance of counsel because trial counsel may decide not to file pre-trial motions as part of trial strategy); Rylander v. State, 101 S.W.3d 107, 110-11 (Tex. Crim. App. 2003) (record insufficient to support ineffective assistance of counsel claim where record was silent regarding reason counsel failed to call expert witness, failed to file pre-trial motions, and failed to adequately prepare witnesses). To find defendant's trial counsel ineffective on the basis of the record before this court would require us to speculate, which we will not do.

SUFFICIENCY OF THE EVIDENCE

Defendant asserts the evidence is factually insufficient to support his conviction. Defendant points to the State's opening argument, which is not evidence, and the testimony of one witness who stated "he couldn't finish what he was doing to her." We review the sufficiency of the evidence under the appropriate standard of review. See Johnson v. State, 23 S.W.3d 1, 6-7, 10-11 (Tex. Crim. App. 2000) (factual sufficiency); Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996) (same).

The jury heard the testimony of (1) the sixteen-year-old complainant, who stated defendant sexually assaulted her; (2) two outcry witnesses who spoke to the complainant soon after the assault; and (3) a forensic scientist with the Bexar County Crime Lab, who stated that testing did not exclude defendant as the source of the DNA specimen collected from the complainant during the sexual assault physical examination. After reviewing all the evidence in a neutral light, we cannot say the evidence of guilt is so weak as to be clearly wrong and manifestly unjust or the adverse finding is against the great weight and preponderance of the available evidence. See Johnson, 23 S.W.3d at 10-11.

CONCLUSION

We overrule defendant's issues on appeal and affirm the trial court's judgment.

Sandee Bryan Marion, Justice

DO NOT PUBLISH