EDWARD NAJAR A/K/A EDUARDO NAJAR v. The State of Texas--Appeal from 243rd District Court of El Paso County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

EDWARD NAJAR a/k/a EDUARDO NAJAR, )

) No. 08-04-00285-CR

Appellant, )

) Appeal from the

v. )

) 243rd District Court

THE STATE OF TEXAS, )

) of El Paso County, Texas

Appellee. )

) (TC# 20030D02422)

)

O P I N I ON

Edward Najar was indicted for aggravated sexual assault of a child (Count I) and indecency with a child (Count II). He plead not guilty to each offense and was tried before a jury. The jury was unable to reach a verdict for Count I, and upon Appellant=s request, the trial court granted a mistrial as to that count. The jury, however, found Appellant guilty of Count II, indecency with a child, and assessed punishment at 6 years= imprisonment. In ten issues, Appellant complains of erroneous evidentiary rulings, jury charge error, and ineffective assistance of counsel. We will affirm.

Nine-year-old L.B. testified that Appellant was her mother=s boyfriend. When she first met Appellant, he would be mean to her and her siblings and was very strict. In her testimony, L.B. described several incidents of sexual abuse. The first incident occurred on a Saturday or Sunday morning. Appellant woke her up early and drove her to Carl=s Jr. restaurant. L.B. ate a hamburger and then Appellant drove her to the desert to look for bunnnies. On the drive home, L.B. was sleepy and attempted to sleep in the truck, but when Appellant was stopped at a red light, he unzipped her pants, pulled her underwear to the side, and put his finger inside her vagina. L.B. did not tell her mother because she was afraid of Appellant. The next incident of a Abad touch@ occurred at Appellant=s house. L.B. had been playing with Appellant=s dog and the dog began scratching her stomach. Appellant went into the house and got a scratch cream. Appellant lifted L.B.=s shirt and applied the cream to the scratches, but when he was finished, he placed more cream on his hands and started rubbing L.B.=s breasts. L.B. testified that she had no scratches on her breasts.

According to L.B., the third sexual encounter occurred while her mother was at the store. Appellant was in her mother=s bedroom, sitting on the edge of the bed. As L.B. was walking by the room, Appellant grabbed her by the hand. After telling L.B. that she should exercise and not be overweight, Appellant told L.B. that he knew some techniques that could help her lose weight. Appellant told L.B. to lie on her back on the floor and do a back bend. As L.B. did what he had asked, Appellant grabbed her legs and put them around his waist. L.B. could not move in this position. Appellant unbuttoned L.B.=s shirt, unzipped her pants, pulled down her underwear, and inserted his finger into her vagina. Again, L.B. did not tell her mother because she was afraid of Appellant.

L.B. testified to three more Abad touch@ incidents between her and Appellant. On New Year=s Eve, L.B. asked Appellant to read her a book about trolls and Appellant told L.B. to sit on his lap. While reading, Appellant started rubbing her back, touching her inner thigh, knees, and bottom. Another incident occurred while L.B.=s mother was at work and her brother was in the living room watching the television. L.B. was passing by her mother=s room when Appellant asked L.B. if she wanted to play a game with him. L.B. said yes and engaged in a word game with Appellant until he said it was boring and that they should do something else. Appellant and L.B. were sitting on the bed. Appellant spread out his legs and had L.B. sit with her back facing his stomach, in between his legs. Appellant then laid down on the bed, picked up L.B. and turned her so that she was facing him. After hugging her real tight, Appellant started kissing her on the lips and using his tongue inside her mouth. After about thirty-five seconds, Appellant picked L.B. up and put her on the ground. Appellant got up and went into the bathroom, but then returned and reminded L.B. that her mother wanted her to take a shower. Appellant told her they should shower together to conserve water. When L.B. refused, Appellant offered her a dollar to shower with him. Appellant asked repeatedly and after L.B. kept refusing, he slapped her on the bottom and gave her a dollar.

In the sixth and final encounter, L.B. was watching AAmerica=s Funniest Home Videos@ in the living room when Appellant walked in and started touching her shoulders and rubbing her back. L.B.=s mother was in the bathroom, which was about ten feet away. L.B.=s mother opened the bathroom door and caught Appellant as he was rubbing L.B.=s bottom. L.B.=s mother yelled at Appellant, told L.B. to wake up her brother and go play outside. L.B.=s mother later asked her if Appellant had touched her before, and L.B. said yes.

L.B.=s brother, R.B., testified that he witnessed Appellant touching L.B.=s bottom while his mother was in the shower getting ready for work. R.B. recalled that Appellant would often call L.B. to him while his mother showered. R.B. witnessed the incident in which Appellant ask L.B. if she wanted to take a shower with him.

At trial, Anna Barrera, L.B.=s mother, explained that Appellant lived with her and her three children for over three years and moved out after he hit her oldest son. Ms. Barrera, however, continued her relationship with Appellant and he visited her house every day. She recalled that in the fall of 2001, Appellant=s behavior toward L.B. changed from being very strict to addressing L.B. in a more loving way. Ms. Barrera also testified about the sixth incident, stating that she caught Appellant touching L.B.=s breast and bottom while the two were in the living room watching television.

Cynthia Aguilar, an investigator for Child Protective Services, interviewed L.B. and during the preliminary interview, L.B. made an outcry against Appellant and her eldest brother. At a subsequent interview at the Child Advocacy Center, L.B. described to Ms. Aguilar how Appellant would open his legs when she sat on his lap, had touched her chest underneath her shirt, and had fondled her vaginal area.

In defense, Appellant called Maria Munoz, the family babysitter. On several occasions, Ms. Munoz asked L.B. about the allegations against Appellant. In response to her question about whether Appellant had ever done anything to her, L.B. replied no. One other time, Ms. Munoz had taken L.B. to church and L.B. started crying. She told Ms. Munoz that she did not want to accuse Appellant because he had not done anything to her, but her mother wanted her to accuse him, even though it was her brother who had abused her.

Appellant testified in his defense. Appellant stated that he first became aware of the sexual abuse allegations when L.B.=s mother called him from work in November or December of 2002. Appellant was later contacted by the police department and was asked to give a statement. During the interview, Appellant denied the allegations against him, but he was arrested about six months later on the charges. At trial, Appellant denied ever touching L.B.=s private parts and only touched her bottom on the rare instances when he spanked her to get her to move from in front of the television. Appellant denied all the incidents that L.B. testified to, including the Carl=s Jr. incident, and the dog scratching incident. Appellant admitted that he had made the comment to L.B. about showering together, but explained that earlier that day he had been to a meeting at his company, El Paso Water, where they had discussed conserving water by having two people showering at once. Later at home, he and L.B. both wanted to use the shower first, so he jokingly suggested they shower together. R.B. was watching television and could not have heard that conversation. As the alleged incident that Ms. Barrera witnessed, Appellant testified that he was tickling L.B., not grabbing her breasts or bottom.

In his first four issues, Appellant argues that the trial court: (1) erred in admitting extraneous offense evidence of which the State had failed to give notice; (2) failed to give a contemporaneous limiting instruction when admitting the extraneous offense evidence; (3) failed to include an instruction in the charge that such evidence should not be considered unless the jury believed the evidence beyond a reasonable doubt; and (4) failed to include a jury charge instruction that such evidence could only be considered for limited purposes only.

In his brief, Appellant fails to designate which sexual abuse allegations testified to were extraneous offenses and which were not. AAn extraneous offense is defined as any act of misconduct, whether resulting in prosecution or not, that is not shown in the charging papers.@ [Emphasis in original]. Rankin v. State, 953 S.W.2d 740, 741 (Tex.Crim.App. 1996). Our review of the record reveals that of the sexual incidents testified to by the complainant and eyewitnesses, only two incidents involved sexual contact without alleging touching of the complainant=s breasts or digital penetration as alleged in the indictment. We surmise that these two incidents are the complained-of extraneous offenses. See Rodriguez v. State, 104 S.W.3d 87, 91 (Tex.Crim.App. 2003)(evidence of multiple occurrences of acts alleged in the indictment are not evidence of extraneous offenses and appellant=s remedy is to require the State to elect the occurrence on which it seeks to rely for conviction).

With regard to Appellant=s first two complaints, Appellant did not object to the State=s failure to give him notice of alleged extraneous offenses and he did not request a contemporaneous limiting instruction when the complained-of evidence was admitted. These complaints were not preserved for appellate review. See Tex.R.App.P. 33.1(a)(1); see also Tex.R.Evid. 105(a)(in absence of limiting instruction request, the court=s action in admitting such evidence without limitation shall not be a ground for complaint on appeal); Blackmon v. State, 80 S.W.3d 103, 107 (Tex.App.--Texarkana 2002, pet. ref=d)(no objection to State=s failure to give notice of extraneous offenses waives issue for appellate review).

Appellant complains that he was entitled to an instruction that the jury could consider evidence of extraneous offense for limited purposes only. As noted above, Appellant did not request a limiting instruction when the alleged extraneous offense evidence was admitting at trial. Because such evidence was admitted for all purposes, the trial court did not err by not issuing a limiting instruction in the jury charge regarding that evidence. See Hammock v. State, 46 S.W.3d 889, 895 (Tex.Crim.App. 2001)(when a party does not request a limiting instruction at the first opportunity, evidence is admitted for all purposes).

Appellant also complains that he was entitled to a reasonable doubt instruction regarding extraneous offense evidence in the guilt-innocence jury charge. Assuming, without deciding that Appellant was entitled to a sua sponte reasonable doubt instruction, we nevertheless find that Appellant did not suffer egregious harm. See Allen v. State, 180 S.W.3d 260, 266 n.21 (Tex.App.--Fort Worth 2005, no pet.)(acknowledging split in intermediate courts as to whether a sua sponte reasonable doubt instruction for extraneous offense evidence is required in the guilt-innocence charge); see also Rodriguez v. State, 137 S.W.3d 228, 231 (Tex.App.--Houston [1st Dist.] 2004, no pet.)(declining to extend Huizar punishment phase reasonable doubt instruction on extraneous offenses to guilt-innocence charge). Egregious harm consists of errors that affect A>the very basis of the case,= deprive the defendant of a >valuable right,= or >vitally affect a defensive theory.=@ Hutch v. State, 922 S.W.2d 166, 171 (Tex.Crim.App. 1996), quoting Almanza v. State, 686 S.W.2d 157, 172 (Tex.Crim.App. 1984). In determining the degree of harm, we look to the entire jury charge, the state of the evidence including contested issues, and the weight of the probative evidence, arguments of counsel, and any other relevant information from the record. Almanza, 686 S.W.2d at 171. Further, the record must show that a defendant has suffered actual, rather than merely theoretical harm from the jury instruction error. Id. at 174.

Here, the record reflects that Appellant was charged with sexual assault of a child by penetrating L.B.=s vagina with his finger (Count I) and indecency with a child by touching L.B.=s breast (Count II). As to each count, the jury was instructed that it must find from the evidence beyond a reasonable doubt that he committed the offense as charged. Further, the jury was instructed that in the event it had a reasonable doubt as to the defendant=s guilt after considering all the evidence and the jury instructions, it must find the defendant not guilty. The jury was unable to reach a verdict as to Count I and Appellant=s motion for a mistrial on that count was granted. Examining the record, we also observe that in its first closing argument, the State made no reference to the extraneous offense evidence. In contrast, defense counsel=s closing argument emphasized L.B.=s testimony about the six different incidents, arguing that L.B.=s failure to tell Ms. Aguilar about all of the incidents during her interview affected her credibility. In the State=s final closing argument, it responded to the attack on L.B.=s credibility, by pointing out the level of detail L.B. provided when testifying about the various incidents and noting that Appellant admitted to some of the facts alleged. Given the jury charge as a whole, the lack of undue emphasis on the extraneous offense evidence by the State, and the state of the evidence against Appellant, we conclude that Appellant was not harmed by any improper omission of a reasonable doubt instruction in the guilt-innocence charge. Issues One through Four are overruled.

In Issue Five, Appellant contends that the trial court erred in failing to require the State to elect which two occurrences of the sexual encounters testified to, that it was relying on to prove the charged offenses. Relatedly, Appellant argues in his sixth issue that the trial court=s failure to require such election abridged his right to a unanimous verdict. The State may present evidence of multiple occurrences of the acts alleged in the indictment. See Worley v. State, 870 S.W.2d 620, 622 (Tex.App.--Houston [1st Dist.] 1994, pet. ref=d). Once the State rests its case-in-chief, upon a timely request by the defendant, the trial court must order the State to elect the act upon which it will rely for conviction. O=Neal v. State, 746 S.W.2d 769, 771 (Tex.Crim.App. 1988). However, absent a request, the State is not required to make an election and no error is implicated. Id. at 771 n.3; Crawford v. State, 696 S.W.2d 903, 906 (Tex.Crim.App. 1985). Here, Appellant did not request that the State make an election, therefore he has failed to preserve his complaints concerning the trial court=s failure to order the State to make an election and any consequent abridgement of his right to jury unanimity. Issues Five and Six are overruled.

In Issues Six (A)[1], Seven, and Eight, Appellant argues that the trial court erred in allowing testimony from witnesses Anna Barrera, R.B., and expert witness Cynthia Aguilar concerning the complainant=s veracity. Appellant, however, raised no objection to the complained-of testimony, therefore he has failed to preserve these issues for appellate review. See Tex.R.App.P. 33.1(a). We overrule Issues Six (A), Seven, and Eight.

In his final issue, Appellant contends that he was denied effective assistance of counsel. Specifically, Appellant argues that his trial counsel was ineffective by: (1) failing to object to extraneous offenses at the guilt/innocence phase; (2) failing to request an election and limiting instructions; and (3) failing to object to bolstered testimony.

We apply a two-pronged test to ineffective assistance of counsel claims. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984). First, the appellant must show that counsel=s performance was deficient, that is, counsel=s representation fell below an objective standard of reasonableness. Strickland, 466 U.S. at 687-88, 104 S. Ct. at 2064; Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App. 1999). Second, the appellant must show that counsel=s deficient performance prejudiced the defense. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994). This requires the appellant to show there is a reasonable probability that but for counsel=s unprofessional errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Jackson, 877 S.W.2d at 771. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Jackson, 877 S.W.2d at 771. The defendant bears the burden of proving ineffective assistance by a preponderance of the evidence. Thompson, 9 S.W.3d at 813.

In reviewing claims of ineffective assistance, we must indulge a strong presumption that counsel=s conduct falls within the wide range of reasonable professional assistance and the appellant must overcome the presumption that the challenged conduct might be considered sound trial strategy. Thompson, 9 S.W.3d at 813; Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. Any allegation of ineffectiveness must be firmly founded and affirmatively demonstrated in the record to overcome this presumption. Thompson, 9 S.W.3d at 813; see Jackson, 877 S.W.2d at 771. In the majority of instances, this task is extremely difficult because Athe record on direct appeal is simply undeveloped and cannot adequately reflect the failings of trial counsel.@ Thompson, 9 S.W.3d at 813-14. When faced with a silent record as to counsel=s strategy, this Court will not speculate as to the reasons for counsel=s actions. See Jackson, 877 S.W.2d at 771. In this case, Appellant did not file a motion for new trial to challenge the alleged ineffectiveness of his counsel. The record before this Court does not contain trial counsel=s explanations of the reasons for his actions, therefore it will be difficult for Appellant to rebut the strong presumption that trial counsel=s conduct falls within the wide range of reasonable professional assistance. See Thompson, 9 S.W.3d at 814.

First, Appellant complains that his counsel was ineffective for allowing the introduction of inadmissible extraneous offenses. Again, Appellant fails to specify which alleged extraneous offenses he complains of, but we presume his claim is based on the following alleged extraneous offenses: (1) the New Year=s Eve body caressing incident; and (2) the kissing/showering incident. Appellant does not state what objection his counsel should have made to the alleged extraneous offenses nor does he argue that the trial court would have sustained any objection. In this case, the alleged extraneous offense evidence would have been admissible under Article 38.37, section 2 of the Texas Code of Criminal Procedure for its bearing on relevant matters, including the state of mind of Appellant and the child-victim and their previous and subsequent relationship. See Tex.Code Crim.Proc.Ann. art. 38.37, ' 2 (Vernon Supp. 2006). Further, the trial court could have reasonably found that the probative value of such evidence substantially outweighed any danger of unfair prejudice under Rule 403. See Tex.R.Evid. 403; Wheeler v. State, 67 S.W.3d 879, 888 (Tex.Crim.App. 2002)(rules of evidence require exclusion of relevant evidence only if the danger of unfair prejudice, delay, or needless repetition substantially outweighs the probative value). Appellant has failed to show that his trial counsel=s performance was deficient on this ground.

Next, Appellant claims that his counsel was ineffective because he failed to require the trial court to require the State to elect which of the two events that it wished to proceed on. Appellant contends there is no plausible strategy for this failure, however, absent an election, Appellant is protected against future prosecutions for the separate acts of misconduct upon which the jury could have convicted him. See Rodriguez, 104 S.W.3d at 91 (subsequent prosecution based upon the separate acts of misconduct are jeopardy-barred); Ex parte Goodbread, 967 S.W.2d 859, 861 (Tex.Crim.App. 1998)(if the State does not make an election, it is barred from future prosecution of any offense within the scope of the indictment and the evidence introduced at trial). The failure to request an election, could have been sound trial strategy given the obvious double jeopardy benefit in this case. Because counsel=s conduct fell within the wide range of reasonable professional assistance, Appellant has not shown that his counsel was ineffective for failing to request an election.

Appellant also argues that his counsel was ineffective for failing to request limiting instructions concerning the extraneous offenses and for failing to object to witness testimony concerning the veracity of the complainant. With regard to both complaints, we are faced with a silent record as to the reasoning and strategy underlying trial counsel=s actions or omissions. Without engaging in any undue speculation, we note that it is plausible that trial counsel could have sought to avoid drawing any further attention to the alleged extraneous offenses. Moreover, the lay witness testimony concerning the complainant=s veracity would have been admissible under Rule 608(a) of the Texas Rules of Evidence and the same complained-of expert witness testimony was elicited by Appellant during cross-examination. See O=Bryan v. State, 591 S.W.2d 464, 476 (Tex.Crim.App. 1979)(State may rehabilitate the complainant with evidence of the complainant=s character for truthfulness when complainant is impeached with prior inconsistent statements); Leday v. State, 983 S.W.2d 713, 718 (Tex.Crim.App. 1998)(improper admission of evidence does not constitute reversible error if the same facts are shown by other unchallenged evidence). Thus, Appellant has not met his burden under either prong of Strickland.

Finally, Appellant asserts that his counsel was ineffective because A[i]n this case, the Jury sentencing on the basis of 6 to 12 events as against two was fundamentally unfair under any totality test.@ Appellant provides no further explanation for his contention nor does he provide any supporting authority. We find that Appellant has waived his contention based on inadequate briefing, thus he has not preserved this complaint for review. See Tex.R.App.P. 38.1(h)(the appellate brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record); see also Peake v. State, 133 S.W.3d 332, 334 (Tex.App.--Amarillo 2004, no pet.)(ineffective assistance complaint overruled based on inadequate briefing). Appellant=s ninth issue is overruled.

We affirm the trial court=s judgment.

September 28, 2006

DAVID WELLINGTON CHEW, Justice

Before Barajas, C.J., McClure, and Chew, JJ.

Barajas, C.J., Not Participating

(Do Not Publish)

[1] Appellant inadvertently labeled two issues with the same number. For sake of clarity we will refer to the second sixth issue as Six (A).