Adalberto Cortez v. The State of Texas--Appeal from 168th District Court of El Paso County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

ADALBERTO CORTEZ,

Appellant,

v.

THE STATE OF TEXAS,

Appellee.

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No. 08-02-00363-CR

Appeal from the

168th District Court

of El Paso County, Texas

(TC#20010D05988)

MEMORANDUM OPINION

Adalberto Cortez appeals his conviction for indecency with a child. Cortez presents two issues: factual sufficiency and ineffective assistance of counsel. We affirm.

Factual Summary

On September 4, 2001, Cortez worked as a substitute pre-kindergarten teacher at Campestre Elementary School in the Socorro Independent School District. The complainant, four-year-old D.H., was one of the students in that class. The child=s mother reported on the way home from school, the girl said, A[T]hat man that I had today at school, he touched me.@ Upon questioning, the mother testified that the girl said, Ahe got her hand and put it on her vagina,@ and said, AI don=t know, Mommy, but I was doing those little snakes on my paper. I was drawing a little snake and he touched me.@ The next day her mother reported the incident to the school principal, and D.H. repeated her story. Three days later, El Paso County Sheriff=s Detective Jaime Terrazas met with D.H. and her mother. He testified his interview with D.H. was conducted in Spanish, as that is the child=s only language. He determined she was unable to identify her upper body parts, but did refer to her vagina and anus as Acola,@ a slang term for back side. He said D.H. told him her maestro (teacher) had touched her front cola. She was unable to identify the teacher, but told the detective it was the same teacher Athat her friend, I believe it was Coso=s car, was in.@ The friend ACoso@ was never identified, nor who may have been in a car with him. The detective stated D.H. said Cortez had touched her underneath her dress on top of her underwear. Terrazas determined there had been no penetration. Terrazas says he interviewed Cortez the same day, and that he was cordial, polite, and cooperative. In his written and oral statements, Cortez denied ever having touched D.H. on her vagina or of seeking to gratify himself sexually with any child. On cross-examination, counsel for Cortez established Cortez had never been accused of similar crimes. Terrazas admitted the girl had told him she was five, when she was only four at the time, and that she was unable to name all the days of the week. He also testified that at one point D.H. said the touching happened over her clothes, but at another time she said it happened under her clothes.

The complaining witness also testified. Both direct and cross-examinations were brief. She said the touching occurred while she was seated in the classroom and defendant was standing behind her. She then testified the touching was done over her panties, but not under her dress. Neither counsel for the State nor Cortez asked her to identify her cola, nor did they inquire as to whether Cortez said anything to her while touching her, whether she was touched more than once, or for how long the touching lasted. D.H. initially said no one else was in the room at the time of the incident, then said her friends were there at the time.

Defense counsel called only one witness--Cortez. He denied the allegation. At that point, counsel for Cortez launched into a detailed review of his criminal history, including five arrests, running from 1978 to 1998, two for marijuana possession, two for DWI, and one for driving without a license. Those arrests resulted in only two convictions, one for DWI and one for driving without a license. After his testimony, the defense rested, and the jury returned a guilty verdict. He received a three-year probated sentence.

Ineffective Assistance

Cortez=s first point of error asserts he received ineffective assistance of counsel. The Strickland test provides a two-prong analysis to determine whether counsel=s representation was so inadequate as to violate a defendant=s Sixth Amendment right to counsel. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Hernandez v. State, 726 S.W.2d 53, 55 (Tex. Crim. App. 1986). First, the defendant must show that his counsel=s performance fell below an objective standard of reasonableness. McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996), cert. denied, 519 U.S. 1119, 117 S. Ct. 966, 136 L. Ed. 2d 851 (1997). Second, assuming the defendant has demonstrated deficient assistance, it is necessary to affirmatively prove prejudice. Id. In other words, appellant must show a reasonable probability that, but for counsel=s unprofessional errors, the result of the proceeding would have been different. Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. (citing Hernandez, 726 S.W.2d at 55).

In reviewing defense counsel=s representation at trial, we engage in Aa strong presumption@ that actions of counsel were within the wide range of reasonably professional assistance. Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000). The burden is on the appellant to overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Id. The State reasons that Cortez=s counsel elicited the extraneous offices to present Cortez as candid, open, and honest. Because Cortez failed to file a motion for a new trial, there is nothing in the record to rebut the presumption that this was a strategic decision. Cortez=s brief fails to establish that trial counsel=s performance fell below any objective standard of reasonableness. Although it points out that the jury likely used the extraneous offenses to presume Cortez is a Abad person@ and therefore convict him in spite of any deficiencies in the evidence, it does not show trial counsel was professionally unreasonable or deficient. Candor and honesty in a defendant is a valid trial strategy, and one that would not violate the Strickland rule establishing counsel as ineffective. Cortez=s first point of error is overruled.

Factual Sufficiency

In his second point, Cortez challenges the factual sufficiency of the evidence. This Court reviews factual sufficiency of the evidence to support a verdict by viewing all the evidence in a neutral light and may reverse only if the proof of guilt is so obviously weak as to undermine confidence in the jury=s determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Johnson v. State, 23 S.W.3d 1, 6-7 (Tex. Crim. App. 2000); Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996); Drost v. State, 47 S.W.3d 41, 45 (Tex. App.--El Paso 2001, pet. ref=d). We review the evidence weighed by the jury that tends to prove the existence of the elemental fact in dispute and compare it with the evidence that tends to disprove that fact. Johnson, 23 S.W.3d at 7 (citing Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996), cert. denied, 522 U.S. 832, 118 S. Ct. 100, 139 L. Ed. 2d 54 (1997)). In our review of factual sufficiency we may disagree with the fact finder=s determination; however, we give deference in order to prevent substituting our judgment for that of the fact finder, and any evaluation should not substantially intrude upon the fact finder=s role as the sole judge of the weight and credibility given to witness testimony. Id. (citing Clewis, 922 S.W.2d at 133; Jones, 944 S.W.2d at 648). Our authority to disagree is limited to situations where the record clearly indicates such a step is necessary to arrest the occurrence of manifest injustice. Johnson, 23 S.W.3d at 9; Drost, 47 S.W.3d at 45. Evidence may be found to be factually insufficient to support a verdict in two ways: (1) it may be so weak as to be clearly wrong and manifestly unjust, or (2) an adverse finding of the fact finder may be against the great weight and preponderance of the evidence. Johnson, 23 S.W.3d at 11; Drost, 47 S.W.3d at 45.

Here, the only evidence against Cortez was the testimony of the alleged victim. There were numerous inconsistencies in her story, but the testimony of D.H. alone is sufficient to support Cortez=s conviction. Goodman v. State, 66 S.W.3d 283, 286 (Tex. Crim. App. 2001). In Goodman, the court held that direct evidence of a fact, standing alone and if believed by the jury, is always factually sufficient to prove that fact. Id. at 286. The jury was free to believe the testimony of witnesses it found to be credible. See Goodman, 66 S.W.3d at 287. Because we find the verdict was not manifestly unjust nor against the great weight and preponderance of the evidence, we overrule Cortez=s second point.

Conclusion

Having overruled both points of error, the ruling of the trial court is affirmed.

SUSAN LARSEN, Justice

January 29, 2004

Before Panel No. 1

Larsen, McClure, and Chew, JJ.

(Do Not Publish)