MELTRON LEVION ALBERTY, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRMED; Opinion Issued February 9, 2007
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-05-01687-CR
No. 05-05-01688-CR
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MELTRON LEVION ALBERTY, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the Criminal District Court No. 3
Dallas County, Texas
Trial Court Cause Nos. F03-73030-TJ & F03-73031-TJ
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OPINION
Before Justices Whittington, Moseley, and O'Neill
Opinion By Justice Whittington
        Meltron Levion Alberty appeals his convictions for aggravated sexual assault of a child. After the jury found appellant guilty of both offenses, the trial judge sentenced him to fifteen years' confinement in each case. In three issues, appellant contends he was denied effective assistance of counsel at trial and the trial judge erred in submitting erroneous jury charges and admitting certain evidence. We affirm the trial court's judgments.
        D.A. testified he was born January 25, 1991. Appellant, who was born July 7, 1984, is his uncle. When D.A. was seven years old, appellant began sexually assaulting him. The first assault occurred when appellant caused his penis to penetrate D.A.'s anus. According to D.A., appellant sexually abused him in excess of one hundred times over a five-year period. D.A. was twelve years old when the last sexual assault occurred. On that occasion, appellant penetrated D.A. both orally and anally with appellant's penis. D.A. reported the abuse, and appellant was subsequently charged with intentionally and knowingly causing the contact and penetration of (i) D.A.'s anus by appellant's sexual organ on or about July 7, 2001 and (ii) D.A.'s mouth by appellant's sexual organ on or about June 1, 2003. After hearing D.A.'s testimony and other evidence, the jury found appellant guilty of both charges. Following sentencing, appellant filed these appeals.
Jury Charge Error
        In his second issue, appellant claims
 
[t]he jury charges in these cases were erroneous in that they instructed the jury that they could convict appellant of any offense anterior to presentment of the indictment and within the statute of limitations, when in fact he could only be convicted of offenses occurring on or after his seventeenth birthday, July 7, 2001, since jurisdiction over offenses before that date had never been waived by the juvenile court.
 
Thus, appellant claims he could only be convicted of offenses occurring on or after his seventeenth birthday because the trial court lacked jurisdiction over any offenses which occurred prior to his seventeenth birthday. For the reasons that follow, we conclude appellant waived this issue.
        The Texas Code of Criminal Procedure provides
 
        A claim that a district court or criminal district court does not have jurisdiction over a person because jurisdiction is exclusively in the juvenile court and that the juvenile court could not waive jurisdiction under Section 8.07(a), Penal Code, or did not waive jurisdiction under Section 8.07(b), Penal Code, must be made by written motion in bar of prosecution filed with the court in which criminal charges against the person are filed.
 
Tex. Code Crim. Proc. Ann. art. 4.18(a) (Vernon 2005). If the defendant's guilt or punishment is being tried or determined by a jury, the written motion must be filed and presented to the presiding judge of the court before selection of the jury. Tex. Code Crim. Proc. Ann. art. 4.18(b)(2) (Vernon 2005). If a defendant does not file a motion within the applicable time requirements of article 4.18(b), he may not contest the jurisdiction of the trial court on the ground that the juvenile court has exclusive jurisdiction. Tex. Code Crim. Proc. Ann. art. 4.18(d)(1) (Vernon 2005).
        In this case, appellant did not file a motion claiming the criminal district court lacked jurisdiction. Because he did not file an article 4.18 motion, he may not complain on appeal that the trial court lacked jurisdiction. Nevertheless, appellant contends the trial judge erred in submitting a jury charge allowing his conviction for acts that occurred before his seventeenth birthday because the trial court lacked jurisdiction to do so. By raising this issue under the guise of jury charge error, appellant is attempting to do precisely what the code of criminal procedure has mandated that he may not do-challenge the trial court's jurisdiction. Because he did not file a written motion as required by article 4.18, appellant may not raise jury charge error when the sole argument alleged is that the trial court lacked jurisdiction because the juvenile court had not waived jurisdiction. We overrule appellant's second issue.
Ineffective Assistance of Counsel
 
        In his first issue, appellant claims he was denied effective assistance of counsel at trial when counsel “failed to demand that the State elect which offense it sought a conviction on in each case.” Under this issue, appellant argues D.A.'s testimony alleged over one hundred acts of sexual assault, many of which occurred before appellant's seventeenth birthday. He claims an election would “have narrowed the acts upon which the State could have relied to find guilt” and it would have “pointed out to the jury forcefully that appellant was a child himself during the majority of the conduct described at trial.”
        We examine ineffective assistance of counsel claims by the standard set out in Strickland v. Washington, 466 U.S. 668 (1984) and adopted by Texas in Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex. Crim. App. 1986). Appellant's burden is to show by a preponderance of the evidence (i) trial counsel's performance was deficient in that it fell below the prevailing professional norms, and (ii) the deficiency prejudiced the defendant-that is, but for the deficiency, there is a reasonable probability that the result of the proceeding would have been different. See Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). We examine the totality of counsel's representation to determine whether appellant received effective assistance but do not judge counsel's strategic decisions in hindsight; rather, we strongly presume counsel's competence. Thompson, 9 S.W.3d at 812. Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson, 9 S.W.3d at 812.
        The court of criminal appeals has made clear that, in most cases, a silent record which provides no explanation for counsel's actions will not overcome the strong presumption of reasonable assistance. See Rylander v. State, 101 S.W.3d 107, 110-11 (Tex. Crim. App. 2003); Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002); Thompson, 9 S.W.3d at 813-14. Furthermore, counsel should ordinarily be given an opportunity to explain his actions before being condemned as unprofessional or incompetent. Rylander, 101 S.W.3d at 111; Bone, 77 S.W.3d at 836. Consequently, an application for writ of habeas corpus is the more appropriate vehicle to raise ineffective assistance of counsel claims. Rylander, 101 S.W.3d at 110.
        Although appellant filed motions for new trial, the complaint raised in each motion was that the “verdict is contrary to the law and evidence in the case.” His motions did not allege he received ineffective assistance of counsel at trial. There were no hearings on the motions for new trial. Therefore, as was the case in Thompson, the record provides no discussion of trial counsel's purported errors. It contains no discernible explanation of the motivation behind counsel's decision not to request the State elect on which offense it sought a conviction.
        Appellant argues there is no plausible strategic reason for failing to require election; however, we note that “trial upon the indictment bars prosecution . . . for offenses for which proof was offered at trial.” Ex parte Goodbread, 967 S.W.2d 859, 861 (Tex. Crim. App. 1998). Therefore, if an indictment charges a defendant with only one sexual assault and the State provides evidence of multiple sexual assaults, double jeopardy bars prosecution for the remaining sexual assaults for which proof was offered at trial following the defendant's conviction on one act of sexual assault. Ex parte Goodbread, 967 S.W.2d at 861; Brown v. State, 6 S.W.3d 571, 576 (Tex. App.-Tyler 1999, pet. ref'd) (when addressing ineffective assistance of counsel claims, failure to request election must be viewed in light of double jeopardy concerns). Trial counsel could have reasonably believed that not requesting an election was the most prudent and effective course because it would bar any subsequent prosecution for any of the sexual assaults for which evidence was offered during trial. See Brown, 6 S.W.3d at 577. Because there was a plausible basis for counsel not to request an election and the record is silent regarding any explanation for counsel's actions, we cannot conclude appellant has met his burden to overcome the strong presumption of reasonable assistance. See Freeman v. State, 125 S.W.3d 505, 506 (Tex. Crim. App. 2003 ) (“The record in this case is insufficient to support the conclusion [that appellant received ineffective assistance of counsel] because appellant did not develop a record in the trial court for the purpose of establishing this claim.”); Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994) (appellate court is not required to indulge in speculation concerning counsel's decision-making processes or to imagine reasons why counsel acted or failed to act in particular manner). We overrule appellant's first issue.
 
Hearsay
        In his third issue, appellant claims the trial judge erred in allowing the testimony of Jennifer Goldberg, D.A.'s therapist, because Goldberg was “not a medical professional attempting to diagnose or treat any medical condition.” At trial, appellant raised an evidentiary rule 803(4) objection to Goldberg's testimony on the grounds that she was not qualified and the statements were “not made for purposes of facilitating or making a medical diagnosis of [sic] treatment.” On appeal, appellant argues Goldberg's testimony was improperly admitted because it “suggested” to the jury that she believed D.A. and D.A. was being treated for sexual abuse.
        Although we question whether appellant's complaint on appeal comports with the objection lodged below, see Routier v. State, 112 S.W.3d 554, 586 (Tex. Crim. App. 2003) (complaints not preserved for review because objection at trial did not comport with complaint on appeal); Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002) (error is not preserved when objection raised on appeal differs from that lodged at trial), we nevertheless conclude that even if Goldberg's testimony was inadmissible and its admission error, the error was harmless. See Tex. R. App. P. 44.2(b) (providing that appellate court must disregard non-constitutional error that does not affect defendant's substantial rights); Garcia v. State, 126 S.W.3d 921, 927 (Tex. Crim. App. 2004) (same). Goldberg specifically testified on cross-examination that, as a therapist, she was “not out to get details” or “specifics on abuse.” Her job was not “to find out the truth” or to “say if it's true or not true.” She did not have a “fact-finding, investigative role.” She did not review any records to determine whether or not D.A. was sexually abused. She testified that D.A. exhibited many behavioral factors that were indicators of sexual abuse but conceded the existence of those factors did not necessarily mean he had been sexually abused. Finally, she testified she could not tell the jury that D.A. was sexually abused. Thus, although her testimony indicated D.A. was referred to her for sexual abuse, nothing in her testimony suggested she could state whether he had been sexually abused. This limited testimony did not have a significant impact in light of the other evidence the jury heard-D.A.'s and his mother's testimony detailing the abuse and appellant's, appellant's mother's, and D.A.'s brother's testimony denying appellant abused D.A. See Garcia, 126 S.W.3d at 927-28. We overrule appellant's final issue.
        We affirm the trial court's judgments.
 
 
                                                          
                                                          MARK WHITTINGTON
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
051687F.U05