Glenn Douglas Cook v. The State of Texas--Appeal from 13th District Court of Navarro County

AFFIRMED

SEPTEMBER 13, 1990

NO. 10-88-230-CR

Trial Court

# 23,105

IN THE

COURT OF APPEALS

FOR THE

TENTH DISTRICT OF TEXAS

AT WACO

* * * * * * * * * * * * *

GLEN DOUGLAS COOK,

Appellant

v.

THE STATE OF TEXAS,

Appellee

* * * * * * * * * * * * *

From 13th Judicial District Court

Navarro County, Texas

* * * * * * * * * * * * *

O P I N I O N

* * * * * * *

On August 17, 1989, this court abated the appeal pending a hearing in the trial court on Appellant's ability and capacity to knowingly, intelligently, and voluntarily waive his right to counsel and his ability to appreciate the practical disadvantages of self-representation. The court determined that Appellant knowingly, intelligently, and voluntarily desired to waive his right to counsel and was able to appreciate the practical disadvantages of self-representation. On October 19, this court discharged Appellant's court-appointed counsel and authorized Appellant to proceed pro se. Having received his pro se brief and the State's response, the appeal is reinstated.

Appellant is not entitled to dual representation. See Rudd v. State, 616 S.W.2d 623, 625 (Tex. Crim. App. [Panel Op.] 1981). Therefore, only the points in the pro se brief, and not those raised in the brief filed by his court-appointed counsel prior to discharge, will be considered.

Appellant was indicted for the aggravated sexual assault of a child under fourteen. See TEX. PENAL CODE ANN. 22.021(1)(B)(I), (2)(B) (Vernon 1989). The indictment also contained two enhancement paragraphs. A jury found him guilty of the aggravated sexual assault and assessed his punishment at ninety-nine years in prison. Appellant complains that the evidence was insufficient to support his conviction, and that he was ineffectively assisted by his trial counsel. The judgment will be affirmed.

Point one is that the evidence was insufficient to support the conviction. Specifically, Appellant complains that the State failed to prove penetration beyond a reasonable doubt. When reviewing a claim that the evidence was insufficient, the question is whether, viewing the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Butler v. State, 769 S.W.2d 234, 239 (Tex. Crim. App. 1989).

A conviction for aggravated sexual assault is supportable on the uncorroborated testimony of the victim if she was younger than fourteen at the time of the offense. TEX. CODE CRIM. PROC. ANN. art. 38.07 (Vernon Supp. 1990). Thus, to sustain its burden, the State had to prove by at least the uncorroborated testimony of the victim that: (1) Appellant by some means penetrated the sexual organ of the victim; (2) the victim was not his wife; and (3) the victim was younger than fourteen at the time of the offense. See TEX. PENAL CODE ANN. 22.021(1)(B)(i),(2)(B) (Vernon 1989).

Susan Longorio, who was ten-years-old at the time of trial and who had never been married to Appellant, testified that on August 13, 1988, she and Darlene Belton were riding in Appellant's car. Appellant bought beer and wine and made them drink it. At one point, Appellant, who was angry because Darlene would not "give him some," took Susan out of the vehicle, put her on the trunk of the car, and removed her panties. Susan claimed that while he held her on the trunk Appellant penetrated her sexual organ with his finger. She then testified that Appellant "kept on hitting [her] in the face" until she was finally able to escape and flee to the nearest house.

Based on the victim's testimony, and in light of the record as a whole, any rational trier of fact could have found the elements of the offense beyond a reasonable doubt. Point one is overruled.

Appellant complains in point two that he was not effectively assisted by his trial counsel. A defendant must prove ineffective assistance by a preponderance of the evidence. Cannon v. State, 668 S.W.2d 401, 403 (Tex. Crim. App. 1984). In determining the effectiveness of counsel, the test is whether, considering the totality of the circumstances viewed at the time of counsel's conduct, (1) the assistance was reasonably effective, and (2) if the assistance was ineffective, whether the defendant was prejudiced thereby. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 2064-6580 L. Ed. 2d 674 (1984); Miller v. State, 728 S.W.2d 133, 134 (Tex. App.--Houston [14th Dist.] 1987, pet. ref'd). Furthermore, a strong presumption exists that the attorney's conduct falls within the wide range of professional assistance. Id.

Appellant's counsel conducted a thorough voir dire examination, questioning the first thirty potential jurors in detail. He actively cross-examined Susan and Bessie Tanner, the woman who assisted Susan after her escape, about Susan's possible intoxication. He called witnesses on Appellant's behalf, and sought and was denied a continuance when a potential witness was located. Furthermore, he argued earnestly at the conclusion of both the guilt-innocence and punishment stages of the trial.

Although Appellant complains about his counsel's lack of diligence, the record is devoid of any evidence to support his assertions in that regard. In light of the record as a whole, Appellant has failed to meet his burden of proving ineffective assistance. See Miller, 728 S.W.2d at 134. Point two is overruled and the judgment is affirmed.

BOB L. THOMAS

DO NOT PUBLISHChief Justice