Francisco Javier Vargas v. The State of Texas--Appeal from 144th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-04-00901-CR
Francisco VARGAS,
Appellant
v.
The STATE of Texas,
Appellee
From the 144th Judicial District Court, Bexar County, Texas
Trial Court No. 200-3CR-1873
Honorable Mark Luitjen, Judge Presiding

Opinion by: Karen Angelini, Justice

 

Sitting: Alma L. L pez, Chief Justice

Catherine Stone, Justice

Karen Angelini, Justice

 

Delivered and Filed: May 30, 2007

 

AFFIRMED

Francisco Vargas appeals from his conviction for indecency with a child and brings three issues on appeal: (1) the trial court erred in overruling his objections to the admissibility of evidence of extraneous sexual assaults by Vargas against a non-complainant third party; (2) jury charge error requires reversal of his conviction; and (3) Vargas was denied effective assistance of counsel. We affirm the judgment of the trial court.

Background

Francisco Vargas was charged with the offense of aggravated sexual assault of a child and indecency with a child. Count I ( aggravated sexual assault) alleged digital penetration of the child's female sexual organ. Count II alleged that Vargas had committed the offense of indecency with a child. Paragraph A of Count II alleged touching of the child's genitalia, while Paragraph B alleged touching of the child's breast.

The alleged victim was Vargas's daughter, Y.V., who was fourteen years of age at the time of trial and eleven years of age at the time of the offense. At trial, Y.V. testified that Vargas began molesting her when she was in the second grade and living in Chicago. According to Y.V., Vargas would sexually assault her in his bedroom while her mother was at work and her older sister, D.V., was in a different room of the apartment. Y.V. testified that during these encounters, Vargas touched her breasts underneath her clothes and touched her "private part." The abuse continued until Y.V. was in the fifth grade and the family moved to San Antonio, and began living with Y.V.'s maternal grandmother. However, once the family left the grandmother's home and moved into one of their own, the abuse began again. According to Y.V., when she asked Vargas to tuck her in, Vargas touched her breasts and her "private part" and also began "putting his finger inside [her]." During these incidents, Y.V.'s mother was in her own bedroom. Y.V. also testified about an incident in the family living room. She was sitting on Vargas's lap while they were doing something on the computer when Vargas put his fingers in her "private part."

During the sixth grade, Y.V. told her friend, Brittany, about the sexual abuse, and a few days later, Y.V. told her mother. Her mother confronted Vargas, who denied it. A school counselor then approached Y.V. and asked whether her father had done anything bad to her. Y.V. told the counselor about the sexual abuse, which triggered an investigation by Child Protective Services.

Y.V. also testified that despite these incidents, she loved her father and was closer to her father than her mother. She also testified that her father was strict and imposed rules for his children, rules that at times she broke.

Y.V.'s mother testified for the defense. According to Y.V.'s mother, when Y.V. told her about the sexual abuse, she took both Y.V. and her older daughter, D.V., to their grandmother's house. She then confronted Vargas, who denied any abuse. Vargas moved out of the family home, and the family participated with the CPS investigation. Later, Vargas was allowed to move back into the family home. And, when both girls asked to have locks put on their bedroom door, Vargas installed the locks. According to Y.V.'s mother, she wanted her family back together, but decided that her daughters should never be left alone with Vargas. A month after Vargas returned to the home, he was arrested. On cross-examination, Y.V.'s mother was asked if she had made a choice between her daughter and her husband. Y.V.'s mother replied that she had not made such a choice, but that she believed "God can restore" and that they can be "together as a family again." However, when asked directly whether she believed Y.V., she responded that she "never saw any evidence of any kind in any way, shape, or form of this happening." Y.V.'s mother also admitted to having placed tape recording devices on the phone so that she could listen to Y.V.'s and D.V.'s phone calls. According to Y.V.'s mother, despite listening to hours of tape recordings, she never heard Y.V. retract her statements about Vargas. Indeed, Y.V.'s mother admitted that Y.V. had never retracted her statements.

Vargas also testified. Vargas testified that because he has strong morals, he imposed strict rules on his daughters. According to Vargas, about the time his daughter made the allegations against him, he was having more and more problems with her breaking his rules. Although Y.V. was a good student, she became "real rebellious" after he moved back from Chicago. He had to spank Y.V. when he came home from work and "saw her with a bunch of kids" in the house. The next day, the same thing happened again, and so Vargas spanked Y.V. again. He also had to discipline Y.V. for talking to boys on the telephone.

Vargas testified that he was in shock when he heard about the accusations, which he said were false. After CPS began its investigation, Vargas attended counseling classes for a couple of months and lived at his brother-in-law's home. He moved back into the family home when his wife received a letter from CPS stating that he could. Vargas testified that he was concerned about moving back into the family home "because of the allegations that were brought up against me." His wife and he discussed precautions: Vargas was not to be around his daughters alone, and Vargas put locks on the doors to his daughters' bedrooms. And, then the following exchange between Vargas and his counsel occurred:

Q: While you were living there, prior to you being arrested, were there occasions when you were invited into [your daughters'] rooms or to be with them?

 

A: Yes, sir.

Q: And what was your response to that?

A: I told her no.

Q: You told [Y.V.] no, or who no?

A: I told my daughter, my young daughter, no. She wanted me to go into her room so I could put her to bed and scratch her back and I said no.

 

Q: Because you're afraid of anything, even the appearance of impropriety?

 

A: Yes, sir.

Q: Okay. Did you discuss that with your wife?

A: My wife was present. She was next to my side.

Q: Okay. And how were things going during that first month?

A: It was too - too - a lot of disbelief. It's like if I lived in a life that my daughters are over here telling me they love me, they love me, and all the sudden, they throw this at me.

 

(emphasis added). At this point, defense counsel changed the subject and asked Vargas where he was when the police "came knocking on the door."

On cross-examination, the prosecutor asked Vargas to explain what he had meant about "they throw this at me."

Q: You made some comments about both of your daughters. You said in your testimony, if I heard it correctly, that both of your daughters say that they love you, but then both of them throw this at you? What do you mean by that?

 

A: Okay. I'll give you an example. This is the way I feel. I've done so much for my daughters, okay, and then I have these notes, they give me notes, they say they love me, this and this, I'm a caring father. And if you give me the time, I can bring that proof, too. And then, you try to discipline your kid. They turn - they turn rebellious on you. And since I'm a disciplinary person more so than my wife, then they do this to you. Yes, that hurts.

 

Q: Okay. But what do you mean by throwing "this" at you? What does "this" mean?

 

A: Being accused of something I haven't done.

 

Q: So are you saying that not only [Y.V.] but [D.V.] accused you of something that you hadn't done?

 

Defense: Your Honor, I'm going to object. May I approach the bench?

 

Court: No, sir. It's overruled.

 

A: Right now I'm being accused [by] my daughter, my younger daughter.

 

Q: Okay. Well, let's talk about your older daughter for a minute?

 

A. Sure.

 

Q: Were you accused by your older daughter about doing something that you shouldn't have done?

 

Defense: Your Honor, may I have a running objection in regards to this line of questioning -

 

Court: No, sir.

 

Defense: - filing a 404(b) objection.

 

Court: Counsel, you opened the door. It's overruled.

 

Q: And what were you accused of?

 

A: Doing the same thing to my older daughter.

 

Q: Doing the same thing to your older daughter?

 

A: Yes, sir.

 

Q: [D.V.]?

 

A: Yes, sir.

 

Q: [D.V.] is approximately two-and-a-half, close to three years older than your younger daughter, right?

 

A: That is correct, sir.

Later, after both sides had closed, the State asked to reopen and call D.V. to the witness stand. (1) The trial court granted the State's request, and the defense made the following objection for the record:

Your Honor, I object to the testimony of this witness based on - on - that the probative value is outweighed by the prejudicial effect. I think that this - my client has not been charged with an offense, he's not been charged with a crime regarding this witness, and that it's - it's highly inflammatory and prejudicial against him.

The trial court overruled the objection, and D.V. was called to the stand.

At the time of trial, D.V. was seventeen years of age. According to D.V., while she was in third grade, Vargas would come into her bedroom while she was sleeping and touch her chest underneath her clothes. D.V. testified that Vargas continued to touch her "private area" "quite often" until she was in the sixth grade. When asked how often, D.V. testified that it was more than once a week. But, according to D.V., after the family moved from Chicago to San Antonio, Vargas never touched her again. D.V. never told her sister, Y.V., about her father's actions, and according to D.V., Y.V. never told her about Vargas either.

Vargas was found not guilty of committing the offense of aggravated sexual assault of a child, but was found guilty of both indecency counts. He was then sentenced by a jury to five years community supervision on each indecency count.

Extraneous Bad Acts

In his first issue, Vargas argues that the trial court erred in overruling his objections to the admissibility of evidence of extraneous sexual assaults by him of a non-complainant third party, his older daughter. In response, the State argues that any error is not preserved for review, and even if it was, the trial court did not abuse its discretion in allowing the evidence because Vargas opened the door through his testimony.

To preserve error in admitting evidence, a party must make a proper objection and get a ruling on that objection. Valle v. State, 109 S.W.3d 500, 509 (Tex. Crim. App. 2003). In addition, a party must object each time the inadmissible evidence is offered or obtain a running objection. Id. An error in the admission of evidence is cured where the same evidence comes in elsewhere without objection. Id. Here, although defense counsel requested a running objection, the trial court denied his request. After his request for a running objection was denied, Vargas testified about his older daughter's allegations without objection. "Any error in the admission of the objected-to testimony was therefore cured." Id. at 510.

We overrule Vargas's first issue.

Jury Instruction

In his next issue, Vargas complains of the following instruction given to the jury:

You are instructed that if there is any testimony before you in this case regarding the defendant having committed an act or acts of misconduct other than the offense alleged against him in the indictment in this case, you cannot consider said testimony for any purpose unless you find and believe beyond a reasonable doubt that the defendant committed such misconduct, if any was committed, and even then you may only consider the same in determining the opportunity, intent, knowledge, if any, of the defendant, or for impeachment of the defendant in connection with the offense, if any, alleged against him in the indictment in this case, and for no other purpose.

 

According to Vargas, the instruction should have been limited to the purpose for which the evidence was offered, impeachment. As such, he argues that he was harmed by the jury also being instructed as to "opportunity, intent, or knowledge, if any."

Texas Rule of Evidence 105(a) requires a trial court to give a limiting instruction to the jury, but only upon request of counsel:

(a) Limiting Instruction. When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly; but, in the absence of such request the court's action in admitting such evidence without limitation shall not be a ground for complaint on appeal.

 

Tex. R. Evid. 105(a) (emphasis added).

In Hammock v. State, 46 S.W.3d 889, 893 (Tex. Crim. App. 2001), the Texas Court of Criminal Appeals explained that the spirit of the rule was to curb the improper use of evidence and to restrict evidence to its proper scope as effectively as possible. "Working under these notions, logic demands that the instruction be given at the first opportunity." Id. (citations omitted) (emphasis in original). If, instead, a limiting instruction is given for the first time at submission of the jury charge, "the jury is allowed to consider the evidence in an inappropriate manner during the trial." Id. According to the court, "[j]urors cannot be expected to know exactly how to use the evidence unless we tell them, nor can we guarantee that they will remain open-minded until the presentation of all of the evidence and instructions." Id. (citations omitted). As such, the court explained that it had previously held that "a trial court does not have discretion to postpone giving a properly requested limiting instruction when that request is made at admission of the evidence." Id. at 894.

However, in Hammock, the court was not presented with a trial court's delay in giving a limiting instruction; rather, appellant's counsel failed to ask for a limiting instruction until later in the trial. Id. Nevertheless, the court believed "the same principles apply." Id. Thus, "[i]f a limiting instruction is to be given, it must be when the evidence is admitted to be effective." Id. Applying these principles to the facts of the case, the court held that because appellant did not request a limiting instruction at the first opportunity, the evidence was admitted for all purposes, and the trial court was not required to include a limiting instruction in the charge to the jury. Id. at 895.

Similarly, here, Vargas did not request a limiting instruction at the time the evidence was first admitted. As such, the evidence was admitted for all purposes, and the trial court was not required to give a limiting instruction at all. Therefore, there was no charge error.

Ineffective Assistance of Counsel

In his final issue, Vargas argues that if we hold that his first issue was not preserved for appeal or if we hold that the door was opened by the defense, then Vargas was denied effective assistance of counsel in violation of the Sixth Amendment to the Constitution. Vargas also complains of his trial counsel's failure to object to the "overly broad" extraneous offense limiting instruction in the jury charge.

We measure a claim of ineffective assistance of counsel against the two-prong test established by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 687 (1984). The appellant must first show that his attorney's performance was deficient, i.e., that his assistance fell below an objective standard of reasonableness. Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). Second, assuming the appellant has demonstrated deficient assistance, it is necessary to affirmatively prove prejudice. Id. In other words, the appellant must show a reasonable probability that, but for his attorney's unprofessional errors, the result of the proceeding would have been different. Id. Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim. Id. at 813. Further, an appellant bears the burden of proving by a preponderance of the evidence that counsel was ineffective, and we look to the totality of the representation and the particular circumstances of each in evaluating the effectiveness of counsel. Id.

At the motion for new trial hearing, defense counsel testified that he intended to preserve error with regard to the first issue discussed above and that he in no way meant to "open the door" to the extraneous bad acts regarding D.V.

As discussed above, we have held that (1) with regard to the first issue, any error in the admission of the objected-to testimony was cured because Vargas's counsel failed to object each time the inadmissible evidence was offered, and (2) with respect to the second issue, there was no jury charge error because counsel did not request a limiting instruction at the time the evidence was first admitted. However, in considering whether Vargas received effective assistance of counsel, we must examine the totality of representation, not just isolated acts or omissions. Here, defense counsel presented a vigorous defense. He called many relatives, including Vargas's wife, to rebut the allegations of sexual misconduct. This defense was effective, as the jury acquitted Vargas of the most serious charge, aggravated sexual assault of a child, a first-degree felony. And, although finding Vargas guilty on the lesser counts of indecency, the jury sentenced him to community supervision.

We, therefore, hold that Vargas was not denied effective assistance of counsel.

Conclusion

Having overruled all Vargas's issues on appeal, we affirm the judgment of the trial court.

 

Karen Angelini, Justice

 

Do not publish

1. At the charge conference, the defense requested an instruction that before the jury could consider any extraneous offenses, it would have to find that Vargas had committed them beyond a reasonable doubt. In response, the State argued that if the defense wanted such an instruction, it would have to call D.V. as a witness. The court allowed the State to reopen and call D.V. to the witness stand.