Rebecca Michelle Funderburk a/k/a Rebecca Lalinde v. The State of Texas--Appeal from 175th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-03-00024-CR
Rebecca LALINDE a/k/a Rebecca M. Funderburk,
Appellant
v.
The STATE of Texas,
Appellee
From the 175th Judicial District Court, Bexar County, Texas
Trial Court No. 2002-CR-3771-B
Honorable Mary Rom n, Judge Presiding

Opinion by: Sarah B. Duncan, Justice

Sitting: Sarah B. Duncan, Justice

Sandee Bryan Marion, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: October 20, 2004

MOTION TO WITHDRAW GRANTED; AFFIRMED

After a jury convicted Rebecca Lalinde of aggravated sexual assault of a child and indecency with a child by contact, Lalinde was sentenced to consecutive terms of fifteen and ten years imprisonment in the Texas Department of Criminal Justice - Institutional Division. Lalinde appeals, contending the evidence is factually insufficient to support the jury's verdict. We disagree and affirm the trial court's judgment.

1. Lalinde's court-appointed appellate attorney filed a motion to withdraw and a brief in which she raises one arguable point of error but nonetheless concludes this appeal is frivolous and without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738 (1967), High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978), and Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969). Lalinde was provided a copy of the brief, motion to withdraw, and record. She filed a pro se brief in which she raises additional issues.

2. Lalinde was charged with aggravated sexual assault by causing M.L.'s sexual organ to penetrate her mouth and with indecency with a child by touching M.L.'s genitals with the intent to arouse. Lalinde's court-appointed attorney contends a challenge to the factual sufficiency of the evidence is arguable because Lalinde attacked the credibility of the State's witnesses. In her pro se brief, Lalinde contends the evidence is factually insufficient because the State's witnesses were not credible, the State presented no medical or scientific proof that any assault occurred, M.L. did not testify that Lalinde committed the offenses, and the assaults were not reported to authorities until nine months after the child was removed from Lalinde's home.

In a factual sufficiency review, we examine all of the evidence in a neutral light, giving deference to the jury's determinations involving the credibility and demeanor of the witnesses. Escamilla v. State, No. 74494, 2004 WL 1462077, at *1 (Tex. Crim. App. June 30, 2004); Zuniga v. State, No. 539-02, 2004 WL 840786, at *4 (Tex. Crim. App. April 21, 2004). We will set aside the verdict "only if the evidence is so weak that the verdict is clearly wrong and manifestly unjust, or the contrary evidence is so strong that the standard of proof beyond a reasonable doubt could not have been met." Escamilla, 2004 WL 1462077, at *1.

Lalinde's brother Charles and his wife Laura testified that they took custody of M.L. in August 2000, about the time he turned five years old. Soon afterward, M.L. began exhibiting disturbing behavior such as being physically aggressive and disruptive, using foul language, and urinating and defecating in his room and on his toys. Charles and Laura also testified that, when they would lie on the bed watching television, M.L. would rub his body up against Laura in a sexual way and that M.L. was found lying on top of his two-year-old cousin with her legs spread open. Then, in February 2001, M.L. tried to open Laura's pants and told her he wanted to "suck her down there" "because that's what his mommy did to him." Charles and Laura then contacted the police. M.L. began seeing a therapist, Colette Wright, in September 2000, because of his disruptive behavior. Wright testified that, beginning in February 2001, M.L. told her about sexual contact with both his parents, including saying "that his mother sucked him." Dr. Shirley Menard, a certified pediatric nurse practitioner at the Alamo Children's Advocacy Center and a teacher at the University of Texas Health Science Center medical school and nursing school, conducted a sexual assault examination of M.L. in March 2001. Menard testified that M.L. told her that one of the reasons he was there was because his "mom was sucking my pee-pee." Menard indicated that M.L.'s behavior problems are consistent with sexual abuse. She also testified that her physical examination of M.L. was normal; however she did not expect to find anything and it is not inconsistent with the abuse alleged. Both Wright and Menard testified that M.L. remained consistent in his statements about what his parents did to him, did not enlarge or exaggerate the allegations, and never stated there had been sexual contact with anyone else.

M.L. testified by closed-circuit television. However, after disclosing an act of sexual abuse by his father, M.L.'s answers became unresponsive and his behavior became erratic. He did not testify about any sexual contact with Lalinde. Menard testified that M.L. behaved similarly when she interviewed him. After he initially disclosed to her what his mother had done, he became distracted and agitated and could not really answer any more questions. She testified that denial, withdrawal, and this type of agitated behavior are common coping mechanisms for very young sexually abused children when they are asked to talk about the abuse.

Lalinde's attorney established some inconsistencies in Laura's and Charles' testimony and also established that they want full custody of M.L., later arguing to the jury that they are not credible and have a very strong motive for fabricating charges against Lalinde. Lalinde also established that M.L. had been exposed to pornographic videos and seen sexual contact among adults while living with his parents. Lalinde's attorney also elicited testimony from Menard that children tend to mimic what they see and that it would be normal for a child who mimics a behavior and senses adult disapproval of the conduct to try to justify the behavior by, for example, saying that his mommy does it. Menard also confirmed that a child such as M.L. without a strong parental attachment and stable home environment and who is left alone for long periods may engage in disruptive behaviors such as those exhibited by M.L.

The jury in this case was free to believe Charles and Laura and to give credence to Wright and Menard's evaluations of M.L.'s disclosures and explanations of his behavior. See Zuniga, 2004 WL 840786, at *4. Neither the jury nor this court "is required to exclude all reasonable alternate hypotheses in resolving a case." Smith v. State, 961 S.W.2d 501, 504 (Tex. App.-San Antonio 1997, no pet.). And the lack of scientific evidence of the assault does not render the evidence insufficient. See Sims v. State, 84 S.W.3d 768, 775 (Tex. App.-Dallas 2002, pet. ref'd); Gonzales v. State, 748 S.W.2d 510, 512, (Tex. App.-Hou. [1st Dist.] 1988, pet. ref'd). Viewing all of the evidence in a neutral light, the State's evidence was not so weak that the jury's verdict is "clearly wrong and manifestly unjust;" nor was the contrary evidence so strong that the State could not meet its burden of proof. See Escamilla, 2004 WL 1462077, at *1.

3. Lalinde next contends the State did not meet its burden to prove the offenses occurred "on or about July 1, 2000," as alleged in the indictment. We disagree. The State is not bound by the date alleged in the indictment and meets its burden if it shows the date of the offense is anterior to the presentment of the indictment and within the statutory limitation period. Ex parte Goodbread, 967 S.W.2d 859, 864 (Tex. Crim. App. 1998). The indictment against Lalinde was presented on June 5, 2002, and the evidence established the offenses occurred before September 2000. The evidence also established that the offenses were within the statutory limitation period, which is ten years from M.L.'s 18th birthday. See Tex. Code Crim. Proc. Ann. art. 12.01(5) (Vernon Supp. 2003).

4. Lalinde next complains her attorney rendered ineffective assistance of counsel. To establish ineffective assistance of counsel, a defendant must show (1) her trial counsel's performance was deficient; and (2) the deficient performance prejudiced her to such a degree that she was deprived of a fair trial. See Strickland v. Washington, 466 U.S. 668, 687 (1984); Hernandez v. State, 988 S.W.2d 770 (Tex. Crim. App. 1999); Holland v. State, 761 S.W.2d 307, 314 (Tex. Crim. App. 1988), cert. denied, 489 U.S. 1091 (1989). To establish deficient performance, a defendant must show counsel's performance fell below an objective standard of reasonableness and rebut the presumption that counsel's decisions were based on sound strategy. Thompson v. State, 9 S.W.3d 808, 812-14 (Tex. Crim. App. 1999). The allegations of ineffectiveness must be firmly founded in the record. Id. at 813.

Lalinde first contends her trial counsel was ineffective because he failed to use beneficial evidence. Specifically, she complains of counsel's failure to use previous statements given by Charles, Lalinde, and Lalinde's husband and of counsel's failure to call several witnesses to testify. The record is silent as to why counsel did not use this evidence; and Lalinde points to nothing in the record rebutting the presumption that her attorney's decisions were based on sound strategy. Lalinde thus fails to meet the first prong of Strickland. See Thompson, 9 S.W.3d at 814. Lalinde also failed to produce any evidence of what the absent witnesses would have testified or that their testimony would have benefitted her and thus fails to meet the second prong of Strickland. See King v. State, 649 S.W.2d 42, 44 (Tex. Crim. App. 1983); Harling v. State, 899 S.W.2d 9, 13 (Tex. App.-San Antonio 1995, pet. ref'd).

Lalinde next argues counsel was ineffective because he failed to object to Charles' and Wright's allegedly hearsay testimony. Again, the record is silent as to why counsel did not object; therefore the presumption of trial strategy is not rebutted. See Thompson, 9 S.W.3d at 814. Moreover, the same testimony was properly admitted through Laura and Menard; and Lalinde has thus failed to show prejudice. See Brooks v. State, 900 S.W.2d 178, 287 (Tex. Crim. App. 1999).

5. Lalinde next contends that juror number 60 should have been excused for cause. However, the record establishes Lalinde was not harmed by the failure to strike the juror because after the challenges for cause and peremptory strikes, the court did not go beyond juror number 43 to empanel a jury.

6. Lalinde complains that, before M.L. testified, the judge told Lalinde she would be gagged or removed if she showed any emotion. However, the judge's statements were made outside the presence of the jury; and Lalinde offers no argument as to why there was error or how she was harmed. See Illinois v. Allen, 397 U.S. 337 (1970) (trial judge has discretion to ensure dignity, order, and decorum in the courtroom and, if necessary, may gag the defendant or remove him from the courtroom).

7. Lalinde next argues that her misdemeanor criminal record should not have been admitted against her. We disagree. Lalinde's prior misdemeanor convictions were admitted only during the punishment phase of the trial and were admissible for that purpose. See Tex. Code Crim. Proc. Ann. art. 37.07 sec. 3(a)(1) (Vernon Supp. 2003).

8. Finally, Lalinde complains that the Texas Department of Criminal Justice - Institutional Division improperly "has [her sentences] stacked." The trial court granted the State's motion to have the sentences run consecutively (i.e., "stacked") instead of concurrently. See Tex. Pen. Code Ann. 3.03 (Vernon 2003). Therefore the judgments properly reflect the sentences are to run consecutively.

Because we agree with Lalinde's appointed appellate attorney that there are no non-frivolous grounds for appeal, we grant the motion to withdraw and affirm the judgment of the trial court.

Sarah B. Duncan, Justice

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