MARTINIANO FLORES, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM; Opinion issued June 10, 2008
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-06-01297-CR
............................
MARTINIANO FLORES, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 219th Judicial District Court
Collin County, Texas
Trial Court Cause No. 219-80171-06
.............................................................
OPINION
Before Justices Wright, O'Neill, and Francis
Opinion By Justice Wright
        Martiniano Flores appeals his convictions for three counts of aggravated sexual assault of a child and four counts of indecency with a child. The jury found appellant guilty and assessed punishment at twenty years' confinement in each of the aggravated sexual assault cases, five years' confinement in two of the indecency cases, and ten years' confinement in the remaining two indecency cases. Thereafter, the trial court ordered the last six cases to run concurrently after the first twenty-year sentence is completed. In three issues, appellant contends he did not receive the effective assistance of counsel at trial and the evidence is legally and factually insufficient to support his convictions. We overrule appellant's issues and affirm the trial court's judgments.
Background
        Fourteen-year old A.U. testified that appellant was her grandmother's boyfriend. When A.U. was about five-years old, appellant began “touching” her. According to A.U., appellant touched her on numerous occasions and in several different ways. When they lived in a house trailer in Plano, she remembered being on the bed in appellant and her grandmother's room and appellant used his hand to touch her “bottom and [her] vagina.” He moved his hand in circles and touched her on top of and underneath her clothing. On at least one occasion, his fingers went between the lips of her vagina. Another time, appellant laid on top of A.U. with his pants and underwear pulled down and touched her vagina with his penis. He also touched her mouth with his penis, putting it into her mouth “a little bit.” On another occasion, after they moved to a house in Plano, she and appellant were in his bedroom and he touched her vagina and her breasts with his hand. He also kissed her breasts. He touched her on top of and underneath her clothes and his fingers again went between the lips of her vagina. He also made A.U. touch his penis with her hand. Sometimes his penis would be hard, other times it would be soft, and sometimes “stuff would come out.” He also used to touch her vagina and her breasts when A.U. and appellant were in his pickup truck. A.U. usually sat in the backseat of the truck, and appellant would reach into the backseat and touch her vagina over her clothes, moving his hand in “small circles and stuff like that.” He also touched her breasts over her clothes while she was in the truck. Although it was difficult to keep the different events straight, A.U. testified the events happened between 2002 and January 2005.
        Angela Zuniga, A.U.'s mother, testified that appellant was her ex-mother-in-law's boyfriend and often helped the family take care of her daughters. Among other things, appellant babysat the girls and took them to and from school. According to Zuniga, A.U. and her friend, V.F, began to act as if A.U. had “a secret.” A.U. seemed “sad, nervous, sort of isolated” and she tried to keep Zuniga from being alone with V.F., as if to prevent Zuniga from learning what the “secret” was. Eventually, A.U. told Zuniga that she “had been molested since she had been a child” by two different individuals. Zuniga then notified the police.
        V.F. testified she and A.U. had been friends since the fourth grade. When they were in the seventh grade, A.U. told V.F. that appellant touched her in a sexual way. She told her about such contact on more than one occasion, and V.F. told A.U. “over and over” that A.U. should tell her mother. V.F. wanted to tell Zuniga about what A.U. had told her and almost did so, but because she had promised A.U. not to tell, she did not.
        Detective David Wilson testified that he is a sex crimes investigator for the Plano Police Department. After Zuniga called the police, Wilson spoke with Zuniga and then arranged for A.U. to have a forensic interview at the Children's Advocacy Center. Following that interview, Wilson investigated both appellant and A.U.'s uncle, Uriel Sandoval, for the sexual abuse of A.U. Wilson spoke with appellant on two occasions. During the first interview, appellant denied having any “special contact” with A.U. He did, however, admit that he told A.U. that he did not want to have penetration of her vagina with his penis because he was afraid it would hurt her. He also said that from the time A.U. was about five- or six-years old, she would kiss him on the mouth with her mouth open and would “grab his face and pull his face into her breasts and then rub her chest around.” Later, appellant called Wilson and arranged for a second interview. During that interview, appellant told Wilson that when A.U. was about ten-years old, appellant was sleeping on his bed in his bedroom when A.U. woke him up by climbing on top of him. According to appellant, A.U. did not have any clothes on and he had on only his underwear. A.U. sat on his genital area and “began hunching his genital area.” Appellant also told Wilson that A.U. told appellant that she had dreams about having sex with appellant.         Michelle Schuback testified she is the community resource director for the Collin County Children's Advocacy Center. As part of her duties at the Advocacy Center, she supervises and performs forensic interviews and she performed such an interview with A.U. During that interview, A.U. disclosed several specific instances of abuse by appellant. Schuback explained that A.U. began by telling Schuback about appellant saying things that made A.U. uncomfortable, such as that “he loved her and wanted to be with her and that when she got older they were going to have a relationship.” A.U. discussed how appellant kissed her with an open mouth and kissed her breasts. A.U. also described how appellant “tried to put his penis inside her vagina but that he didn't do that after she said it was hurting.” A.U. also told Schuback about his hand touching her vagina, and about exposing his penis to her and having her touch it with her hand and her mouth. Schuback testified that “it sounded like this would go on, on multiple occasions” from the time A.U. was five- years old until she was around the age of ten or eleven. Schuback also testified that although A.U. told her about abuse by both appellant and Sandoval, A.U. was “very clear about who did what to her.”
        Francisca Regina Ramos, A.U.'s grandmother, testified that appellant and A.U.'s relationship appeared to be “a family type.” She denied ever seeing anything out of the ordinary happening between appellant and A.U.
 
Sufficiency of the Evidence
        In his second and third issues, appellant contends the evidence is legally and factually insufficient to support his convictions. When addressing legal sufficiency complaints, we apply well-known standards: we consider all the evidence in the light most favorable to the verdict and determine whether, based on that evidence and reasonable inferences therefrom, a rational fact finder could have found the essential elements of the crime beyond a reasonable doubt. Rollerson v. State, 227 S.W.3d 718, 724 (Tex. Crim. App. 2007); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). The jury, as sole judge of the witnesses' credibility and the weight to be given their testimony, is free to accept or reject any or all of the evidence presented by either side. See Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim. App. 2000). The reviewing court must give deference to “the responsibility of the trier of fact to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Hooper, 214 S.W.3d at 13 (citing Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)).
        Evidence that rationally supports a guilty verdict beyond a reasonable doubt under the legal sufficiency standard can still be factually insufficient. Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006), cert. denied, 128 S. Ct. 87 (2007). Evidence is factually insufficient to support the verdict if it is clearly wrong or manifestly unjust or against the great weight and preponderance of the evidence. Marshall, 210 S.W.3d at 625. The difference between the legal and factual sufficiency standards is that “the former requires the reviewing court to defer to the jury's credibility and weight determinations while the latter permits the reviewing court to substitute its judgment for the jury's on these questions 'albeit to a very limited degree.'” Rollerson, 227 S.W.3d at 724 (quoting Marshall, 210 S.W.3d at 624); Watson v. State, 204 S.W.3d 404, 416-17 (Tex. Crim. App. 2006)). A “factual-sufficiency review is 'barely distinguishable' from a Jackson v. Virginia legal sufficiency review.” Rollerson, 227 S.W.3d at 724 (quoting Watson, 204 S.W.3d at 415).
        A person commits the offense of aggravated sexual assault of a child if he intentionally or knowingly causes (1) the penetration of the child's sexual organ by any means, (2) the penetration of the mouth of a child by the sexual organ of the actor, or (3) the sexual organ of a child to contact the sexual organ of another person, including the actor, and the child is younger than fourteen years of age. Tex. Penal Code Ann. § 22.021(a)(1)(B)(i), (ii) (iii); (2)(B) (Vernon Supp. 2007). A person commits the offense of indecency with a child if, with a child younger than 17 years and not the person's spouse, he engages in sexual contact with the child or causes the child to engage in sexual contact. Tex. Penal Code Ann. § 21.11(a)(1) (Vernon 2003). “Sexual contact” means any touching, including touching through clothing, of the breast or any part of the genitals of the child if committed with the intent to arouse or gratify the sexual desire of any person. Tex. Penal Code Ann. § 21.11(c)(1) (Vernon 2003).
        There is no requirement that a child victim's testimony be corroborated by medical or physical evidence; a child victim's testimony alone is sufficient to support a conviction for aggravated sexual assault. See Garcia v. State, 563 S.W.2d 925, 928 (Tex. Crim. App. 1978); Tear v. State, 74 S.W.3d 555, 560 (Tex. App.-Dallas 2002, pet. ref'd)); Empty v. State, 972 S.W.2d 194, 196 (Tex. App.-Dallas 1998, pet. ref'd); Karnes v. State, 873 S.W.2d 92, 96 (Tex. App.-Dallas 1990, no pet.). And, the specific intent to arouse or gratify the sexual desire of a person can be inferred from a defendant's conduct, remarks, or all the surrounding circumstances. See McKenzie v. State, 617 S.W.2d 211, 216 (Tex. Crim. App. [Panel Op.] 1981); Navarro v. State, 241 S.W.3d 77, 79 (Tex. App.-Houston [1st Dist.] 2007, pet. ref'd).
        The record in this case shows there were some minor inconsistencies in A.U.'s testimony and some confusion on her part about exactly what happened and when it happened. However, A.U. was not confused about the fact that appellant used his finger to penetrate her vagina on at least two occasions, and penetrated her mouth with his penis “a bunch of times.” Nor was she confused that appellant touched her vagina with his penis, touched and kissed her breasts in the bedroom in the Plano house, touched her breasts and her vagina when she was in the backseat of the truck, or that appellant made her touch his penis and described it as sometimes being hard, sometimes being soft, and sometimes “stuff would come out.”         Nevertheless, appellant contends A.U.'s testimony is insufficient to support his convictions because there is “no medical evidence, no DNA, no witness, no outcry for nine years and no notice of any behavior change during the nine years this was allegedly occurring.” There is no requirement that A.U.'s testimony be corroborated by medical or physical evidence; her evidence alone is sufficient to support his three convictions for aggravated sexual assault and four convictions for indecency with a child. See Garcia, 563 S.W.2d at 928; Tear, 74 S.W.3d at 560; Empty, 972 S.W.2d at 196; Karnes, 873 S.W.2d at 96. Moreover, Schuback explained that children often do not make an outcry for years, either because they may be fearful or because of a sense of loyalty to the abuser. They also may not talk about the abuse to others because they are afraid of the reaction people might have or because they are embarrassed about what has happened to them. The jury heard the evidence and viewed the witnesses as they testified. In making credibility determinations, it could take into consideration the distress exhibited by a fourteen-year old girl attempting to communicate to a room of adults how she was sexually abused by her grandmother's boyfriend. In short, the jury was in the best position to evaluate the witnesses' credibility. Neither the lack of physical evidence nor the delay in making an outcry renders the evidence insufficient. Reviewing the evidence under the appropriate standards, we conclude it was both legally and factually sufficient to support appellant's three convictions for aggravated sexual assault and four convictions for indecency with a child. We overrule appellant's second and third issues.
Ineffective Assistance of Counsel
        In his first issue, appellant claims counsel was ineffective by eliciting Wilson's testimony that he believed A.U. and by failing to object to Schuback's testimony that she believed A.U. was telling the truth. For the reasons that follow, we conclude appellant has not met his burden entitling him to relief.         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 has the burden to show by a preponderance of the evidence (1) trial counsel's performance was deficient in that it fell below the prevailing professional norms, and (2) 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.
        “In the usual case in which an ineffective-assistance claim is made, 'the record on direct appeal will not be sufficient to show that counsel's representation was so deficient and so lacking in tactical or strategic decisionmaking as to overcome the presumption that counsel's conduct was reasonable and professional.'” Cannon v. State, 2008 WL 141902, *6 (Tex. Crim. App. Jan. 16, 2008) (quoting Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002)). This is generally the case because a silent record provides no explanation for counsel's actions and therefore 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, 77 S.W.3d at 833; 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.         In this case, appellant did not file a motion for new trial and, consequently, there was no post-conviction hearing. As a result, the record does not provide a discussion of trial counsel's purported errors. It contains no discernible explanation of the motivation behind counsel's decision to elicit or failure to object to the complained-of testimony. The State suggests, and the record supports the State's contention, that trial counsel's decision could have been a reasonable trial strategy. According to the State, appellant's strategy throughout the case was to emphasize this case depended on one witness, and that witness could be lying. As part of that strategy, counsel elicited testimony that Wilson had been involved in cases in which the victim had lied. When Wilson went on to testify that he did not believe A.U. was lying, counsel chose not to object but rather to challenge Wilson's credibility by eliciting further testimony that Wilson had obtained warrants on defendants who had later been found not guilty. Similarly, the State argues counsel could have chosen not to object to Schuback's testimony that she believed A.U. was credible, but rather question Schuback about what counsel thought was a “lie of omission.”
        Although there are rare cases in which a record is sufficient for an appellate court to make a decision on the merits of an ineffective assistance of counsel claim, after reviewing the record, we conclude this is not one of those cases. See Cannon, 2008 WL 141902, at *6. We conclude appellant has not 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.         Accordingly, we affirm the trial court's judgments.
 
 
                                                          
                                                          CAROLYN WRIGHT
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 47 061297F.U05