Charles Guillory v. The State of Texas--Appeal from 81st Judicial District Court of Atascosa County

MEMORANDUM OPINION

No. 04-05-00814-CR

Charles GUILLORY,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 81st Judicial District Court, Atascosa County, Texas

Trial Court No. 05-08-0189-CRA

Honorable Donna S. Rayes, Judge Presiding

Opinion by: Sandee Bryan Marion, Justice

Sitting: Sandee Bryan Marion, Justice

Phylis J. Speedlin, Justice

Rebecca Simmons, Justice

Delivered and Filed: January 31, 2007

AFFIRMED

Defendant, Charles Guillory, appeals his conviction of two counts of aggravated sexual assault. We affirm.

BACKGROUND

Defendant was indicted on two counts of aggravated sexual assault. Count I of the indictment alleged defendant intentionally and knowingly caused the penetration by defendant's penis of the female sexual organ of N.V., who was a child under the age of fourteen. See Tex. Penal Code Ann. 22.021(a)(1)(B)(I). Count II of the indictment alleged defendant intentionally and knowingly caused the penetration by defendant's finger of the female sexual organ of B.R., who was a child under the age of fourteen. Id. A jury found the defendant guilty on both counts of aggravated sexual assault and assessed punishment at seventy-five years' confinement and a $10,000 fine. Defendant complains of his conviction in five issues on appeal.

MISJOINDER

In his first issue on appeal, defendant asserts the two complainants' cases against him were improperly joined. However, defendant failed to object or otherwise raise this issue below in the trial court. Article 1.14(b) of the Texas Code of Criminal Procedure provides:

If the defendant does not object to a defect, error, or irregularity of form or substance in an indictment or information before the date on which the trial on the merits commences, he waives and forfeits the right to object to the defect, error, or irregularity and he may not raise the objection on appeal or in any other postconviction proceeding.

Tex. Code Crim. Proc. Ann. art. 1.14(b) (Vernon 2006).

Article 1.14(b) became effective December 1, 1985 and controlled at the time of defendant's trial in 2002. Article 1.14(b) requires a defendant to object to the joinder of two complainants' cases in a single indictment in order to preserve any error. Id.; see Studer v. State, 799 S.W.2d 263, 270-71 (Tex. Crim. App. 1990) (discussing the intent of the Legislature with regard to its enactment of article 1.14(b) as follows: "Clearly the perceived evil they were correcting was the raising of indictment defects for the first time after a trial and conviction and the subsequent reversal of that conviction because of that defect."); see also Sanchez v. State, 928 S.W.2d 255, 257 (Tex. App.--Houston [14th Dist.] 1996, no pet.) (holding that "[u]nder this newer article [1.14], an objection is required to preserve a misjoinder error); Anderson v. State, 905 S.W.2d 367, 369-70 (Tex. App.--Fort Worth 1995, pet. ref'd) (deciding that article 1.14(b) requires defendant to object to indictment errors before trial). Therefore, because defendant failed to object at trial to the joinder of the two complainants' cases in a single indictment, the alleged error was waived.

INEFFECTIVE ASSISTANCE OF COUNSEL

In his second issue on appeal, defendant asserts he received ineffective assistance of counsel because his defense counsel failed to object on four occasions and "failed to appreciate the rules of evidence" with regard to impeaching a witness. We review defendant's claim of ineffective assistance of counsel according to the two-step analysis articulated in Strickland v. Washington, 466 U.S. 688 (1984). Defendant must show: (1) counsel's representation of defendant fell below an objective standard of reasonableness, and (2) there is reasonable probability that, but for counsel's errors, the outcome of the proceeding would have been different. Id. at 688-89; Hernandez v. State, 726 S.W.2d 53, 55 (Tex. Crim. App. 1986). In order to determine whether trial counsel acted reasonably, we must look at the totality of the representation. Strickland, 466 U.S. at 690; Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). The defendant must rebut the presumption that his counsel's decisions at trial were based on sound trial strategy. Strickland, 466 U.S. at 689;Thompson, 9 S.W.3d at 813. The appellate record must affirmatively demonstrate trial counsel's ineffectiveness. See Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003); Thompson, 9 S.W.3d at 813.

Defendant claims his trial counsel failed to object to: (1) the introduction of prejudicial evidence; (2) the admission of N.V.'s outcry statements through the testimony of Melissa Ochoa; (3) the prejudicial closing arguments that bolstered the complainants' testimony; and (4) the introduction of hearsay evidence. However, while defendant filed a pro se motion for new trial, defendant did not advance an ineffective assistance of counsel claim within the motion. Also, the motion for new trial was not heard by the trial court and a hearing was not conducted to explore defense counsel's strategy at trial. Without information in the record before us regarding trial counsel's motivations and trial strategy we would be improperly speculating about why counsel did not object on those four occasions, which we will not do. See Thompson, 9 S.W.3d at 814 (declining to speculate as to the reasons why defense counsel failed to object where there is a silent record);Green v. State, 191 S.W.3d 888, 894-95 (Tex. App.--Houston [14th Dist.] 2006, pet. ref'd) (holding where the record is silent regarding defense counsel's motivations regarding the failure to object on four occasions, such failure to bring forward evidence will prevent a finding that defense counsel's performance was deficient).

In addition, defendant asserts his counsel "failed to appreciate the rules of evidence" when attempting to impeach Melissa Ochoa, the mother of the two complainants. While defendant was testifying at trial, defense counsel attempted to question him about alleged statements made by Melissa that her eldest daughter was born as a result of a sexual assault. However, the trial court precluded that line of questioning after the State argued that defense counsel should have first questioned Melissa as to the alleged statements. Defendant argues that his defense counsel failed to lay the proper predicate under Rule 613(a) when attempting to impeach Melissa. See Tex. R. Evid. 613(a). Defendant claims this line of questioning was important to pursue because it goes to Melissa's credibility. However, "[t]he right to effective counsel is not the right to error-free counsel." Hernandez v. State, 726 S.W.2d 53, 58 (Tex. Crim. App. 1986). Having reviewed the record as a whole, including the testimony of the complainants, we believe there is no reasonable probability that the jury's verdict would have been different if defense counsel had laid a proper predicate. Accordingly, we conclude the defendant has not met his burden of establishing trial counsel was ineffective.

COMPETENCY OF WITNESSES

In his third issue, defendant asserts the trial court abused its discretion "when it failed to determine, prior to testimony that the complainants understood the nature of the oath to tell the truth and their duty and obligation to tell the truth." See Tex. R. Evid. 601(a), 603. However, defendant failed to raise these complaints at trial; therefore, he may not raise the issue of competency of the child complainants for the first time on appeal. (1) Tex. R. App. P. 33.1(a); see also Mendez v. State, 138 S.W.3d 334, 342 (Tex. Crim. App. 2004) (clarifying that "'[e]xcept for complaints involving systemic (or absolute) requirements, or rights that are waivable only, which are not involved here, all other complaints, whether constitutional, statutory, or otherwise, are forfeited by failure to comply with Rule 33.1(a)'"); see also Rich v. State, 823 S.W.2d 420, 421 (Tex. App.--Fort Worth 1992, pet. ref'd); Lujan v. State, 626 S.W.2d 854, 860 (Tex. App.--San Antonio 1981, pet. ref'd).

JURY CHARGE

In his fourth issue, defendant argues the trial court erred when it allowed the jury to convict him on Count II of the indictment with a non-unanimous verdict. The Texas Constitution requires jury unanimity in felony cases, and our state statutes require unanimity in all criminal cases. See Ngo v. State, 175 S.W.3d 738, 745 (Tex. 2005); see Tex. Const. art. V, 13; Tex. Code Crim. Proc. Ann. art. 36.29(a), 37.02, 37.03, 45.034-036. "Unanimity in this context means that each and every juror agrees that the defendant committed the same, single, specific criminal act." Ngo, 175 S.W.3d at 745. We must determine: (1) whether error exists in the jury charge, and then (2) whether sufficient harm resulted from the error to compel reversal. See Ngo, 175 S.W.3d at 743-44.

Count II of the charge, regarding the complainant B.R., allowed the defendant to be convicted of either aggravated sexual assault or the lesser offense of indecency with a child by contact, but not both. Essentially, defendant argues there is error because the jury could have been less than unanimous on Count II, with some jurors finding he committed aggravated sexual assault by penetrating the genitals of B.R. with his finger, and others finding he committed indecency with a child by contact by placing his hand against B.R.'s genitals. To determine whether error exists in the charge, we first look to the language of the charge concerning Count II, which instructs the jury in part as follows: Now, if you find from the evidence beyond a reasonable doubt that on or about the 1st day of January, 2002 in Atascosa County, Texas the defendant, Charles Guillory intentionally or knowingly caused thepenetration of the female sexual organ of [B.R.], a child younger than 14 years of age who was not the spouse of the defendant, by defendant's finger, then you will find the defendant guilty ofaggravated sexual assault as alleged in Count II of the indictment.

Unless you so find from the evidence beyond a reasonable doubt, or if you have a reasonable doubt thereof, you will acquit the defendant of Count II aggravated sexual assault and next consider whether the defendant is guilty of indecency with a child by contact.

. . . .

Now, if you find from the evidence beyond a reasonable doubt that on or about January 1, 2002, in Atascosa County, Texas, the defendant, Charles Guillory, did then and there engage in sexual contact with [B.R.] by placing his hand and portions thereof upon and against the genitals of [B.R.] and that [B.R.] was then under the age of seventeen years and not the spouse of the defendant, and that said act, if any was committed with the intent on the part of the defendant to arouse or gratify the sexual desire of himself, then you will find the defendant guilty of indecency with child by contact.

If you believe from the evidence beyond a reasonable doubt that defendant is guilty of either Count II aggravated sexual assault or indecency with a child by contact, but you have a reasonable doubt as to which offense he is guilty, then you should resolve that doubt in defendant's favor and find him guilty of the lesser offense of indecency with a child by contact.

[Emphasis added.]

The charge requires in its plain language that the jury first decide whether defendant committed aggravated sexual assault. Thus, the jury was unable to consider whether defendant committed the lesser offense of indecency with a child by contact until it had acquitted him of the more serious offense of aggravated sexual assault. The record reflects that the jury followed the trial court's charge by signing the verdict form on the aggravated sexual assault offense, finding the defendant guilty. As a result, the jury did not sign the verdict form as to the indecency with a child offense. Therefore, there was no risk of a non-unanimous verdict because it was not possible for some jurors to find the defendant guilty of aggravated sexual assault and for other jurors to find him guilty of indecency with a child by contact. In signing the verdict form as to the aggravated sexual assault offense, the jury unanimously found the defendant guilty of that offense. Accordingly, we find no error in the jury charge.

FACTUAL INSUFFICIENCY

In his fifth and final issue on appeal, defendant claims the evidence was factually insufficient to support the jury's guilty verdict. We review the factual sufficiency of the evidence by considering all the evidence in a neutral light and only reversing if: (1) the evidence is so weak as to make the verdict clearly wrong or manifestly unjust, or (2) the verdict is against the great weight and preponderance of the evidence. Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006) (citing Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000)); Cain v. State, 958 S.W.2d 404, 408 (Tex. Crim. App. 1997).

At trial, the jury heard testimony from various witnesses, which included but was not limited to the following: (1) N.V., complainant; (2) B.R., complainant; (3) Annette Santos, sexual assault nurse examiner; (4) Melissa Ochoa, complainants' mother; (5) Detective Wells; and (6) defendant. We begin with a review of N.V.'s testimony. At trial, the prosecutor asked N.V. the following: "Did he ever do anything with his front private, his penis, after you rubbed baby oil on top? Did he do anything to you?" N.V. responded, "He put it inside of me. . . .And it only got a little bit because I started crying and saying no." In addition, the prosecutor asked N.V., "And could you feel it inside of you?" To which she responded, "Yes, it started hurting." N.V.'s testimony at trial was consistent with her statement to Annette Santos, who examined N.V. and B.R. in November of 2004, which was two years after the alleged sexual assaults occurred. Santos testified N.V. told her "[h]e put me on the mattress and he put his private inside my front private. It was hurting." Santos also testified that although the exam yielded normal results, the results were consistent with the history provided and consistent with the results of the majority of exams she performs when an alleged assault is not recent.

Also, the jury heard testimony from Melissa Ochoa. Melissa was designated as the outcry witness for N.V., but not for B.R. because B.R. refused to talk to Melissa about what had allegedly occurred. Melissa testified that N.V. told her, "He would kiss them and on one occasion he tried to penetrate N.V." However, Melissa clarified that N.V. did not use the words "penetrate," but instead N.V. said "he tried to put his pee-pee in her tweetie."

Additionally, the jury heard B.R.'s testimony at trial. B.R. testified defendant touched her on her front private, where she tinkles from. Also, after the prosecutor asked her if he did anything with his fingers B.R. responded, "Yes. . . . He put them in my front private." The prosecutor then asked if it hurt her and B.R. responded "Yes." The prosecutor also asked B.R., "How many times did he do that . . . put his finger inside of your front privates?" B.R. responded, "One" and then later explained that he also touched her other times on her "front private." Santos testified that B.R.'s exam results were normal and consistent with the history reported. However, Santos's report did not include a statement by B.R. of penal vaginal penetration, but did include a statement that defendant touched her.

In addition, the jury heard both the tape of a conversation between Detective Wells and defendant and defendant's testimony at trial. Defendant admitted at trial that during the taped conversation between Detective Wells and him, he told the detective N.V. kissed good and then testified that it was an enjoyable surprise when she kissed him on the mouth after he asked her to. Also, he testified that he told Detective Wells he was aroused and got an erection from them crawling all over him. He also admitted to giving N.V. a hickey on her neck and conceded that everything the children said was true except the actual sexual assault.

Although this case involved the complainants' word against that of the defendant, it was the jury's prerogative to draw reasonable inferences from the evidence and to judge the credibility of the witnesses and the weight to be given to their testimony. See Jones v. State, 944 S.W.2d 642, 647-49 (Tex. Crim. App. 1996). In addition, the uncorroborated testimony of the two complainants was by itself sufficient to support a conviction for aggravated sexual assault. See Tex. Code Crim. Proc. Ann. art. 38.07(a) (Vernon 2006) (providing that the uncorroborated testimony of a child victim under the age of seventeen at the time is sufficient to support a conviction for aggravated sexual assault under section 22.021 of the Penal Code); Ruiz v. State, 891 S.W.2d 302, 304 (Tex. App.--San Antonio 1994, pet. ref'd). Viewing the evidence in a neutral light, we do not find the verdict clearly wrong or manifestly unjust, nor is it against the great weight and preponderance of the evidence. See Watson, 204 S.W.3d at 414-15. Accordingly, we find the evidence was factually sufficient to support the jury's verdict.

CONCLUSION

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

Sandee Bryan Marion, Justice

DO NOT PUBLISH

1. We note that the judge did question both N.V. and B.R. about the difference between telling the truth and telling a lie prior to their testimony.