KENDRICK DEMON JOHNSON, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM; Opinion issued June 19, 2008
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-07-01208-CR
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KENDRICK DEMON JOHNSON, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 363rd Judicial District Court
Dallas County, Texas
Trial Court Cause No. F06-89584-JW
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OPINION
Before Justices Wright, Bridges, and Mazzant
Opinion By Justice Mazzant
        A jury convicted Kendrick Demon Johnson of indecency with a child by contact and the trial court sentenced him to twenty years in prison. In four issues, appellant argues that the trial court abused its discretion when it denied his request for a continuance, that he received ineffective assistance of counsel, and that the evidence is legally and factually insufficient. For the following reasons, we affirm the trial court's judgment.
Background
        Appellant was accused of engaging in sexual contact with the complainant, V.B., a seven- year-old boy.   See Footnote 1  The contact occurred in an apartment that V.B., his mother, and his two younger sisters were sharing with appellant. Other individuals were living in the apartment at the time, including appellant's brother, Calvin Johnson; Calvin's wife, Holly Washington; their friend, Eric Gardner; and the boyfriend of V.B.'s mother, Rafael Wooten. V.B. testified that, on more than one occasion, appellant undressed him and touched his “pee-pee” and his “behind” with his hand. This occurred in Calvin's room when V.B.'s mother was “gone.” V.B. also claimed that he was forced to touch appellant's “pee-pee” more than once. V.B. did not tell his mother about the abuse because appellant told him not to and because he was afraid of appellant.
        Appellant's mother, M.B., testified that Calvin forced her to work as a prostitute while she was living with them. On most evenings she would leave V.B. and his sisters in the care of appellant, Calvin, and Holly while she was out working. M.B. never suspected that appellant was abusing V.B. and he never said anything to her about the abuse.
        M.B. and her children eventually moved out of appellant's apartment and moved in with M.B.'s new boyfriend, Justin Hickman. A short while later, Justin's sister, Andrea Hickman, called Child Protective Services (CPS) to report that V.B. and his sisters were being neglected. CPS removed the children from their mother's custody on April 26, 2006. They were sent to live with Andrea in October of 2006 and subsequently placed with their maternal great-grandparents.
        V.B. started to misbehave in school shortly after he moved in with Andrea. When she asked him if anything was wrong, V.B. told her that appellant had abused him when they were living with appellant. Andrea testified that V.B. was scared and his “whole body was shaking” as he told her that appellant touched his penis and put his penis on V.B.'s “butt.” Andrea reported V.B.'s outcry to CPS. In December of 2006, CPS referred the case to the Dallas Police Department's Child Abuse Division.
        Dallas Police detective Arleen Martinez arranged for V.B. to be interviewed at the Dallas Children's Advocacy Center (DCAC). According to the interviewer, Jesse Gonzales, V.B. made an outcry of abuse and provided details of the abuse. Gonzales claimed that a child's ability to provide “sensory details” when describing the abuse is an important factor in determining whether the child has been coached or told to lie. Gonzales thought that V.B.'s demeanor throughout the interview was consistent with someone who had been abused. When Martinez spoke to appellant after his arrest, he told her that he “had watched V.B. on multiple occasions” while his mother was away. He claimed that he never “put his hand on the child.”
        Cindy Alexander, the clinical director at DCAC and an expert in child sexual abuse, explained why children often hesitate to tell someone they are being sexually abused. Alexander said that many children are reluctant to report sexual abuse either because they have been threatened or they are fearful, ashamed, and embarrassed. Boys experience a great deal of shame when they are sexually abused and are especially reluctant to talk about sexual abuse inflicted by another male.
        Calvin, appellant's brother, testified that, although appellant was one of four individuals listed on the apartment lease (the others were Eric, Calvin, and Holly), appellant rarely stayed at the apartment while M.B. and her children were living there. Calvin denied forcing M.B. into prostitution. He also testified that M.B. would disappear for weeks at a time, leaving the children to be cared for by her boyfriend, Rafael Wooten, who was also frequently absent. Calvin claimed that a man named Christopher Austin would come to the apartment and babysit the children when M.B. was gone.
        Holly, Calvin's wife, denied forcing M.B. into prostitution or threatening her children. Holly testified that appellant usually stayed at the apartment only twice a week and that he was never alone with M.B.'s children. She admitted, however, that she did not know whether appellant was alone with the children when she was not at the apartment.
        Eric Gardner, who referred to appellant as his “God brother,” testified that appellant was never left alone with the children. He also claimed that the “babysitter” Christopher Austin often looked after them. Gardner added, however, that appellant sometimes spent the night at the apartment when the children were living there.
        Appellant testified in his defense and denied the allegations against him. He maintained that he would often stay with friends while M.B. and her children were living in his apartment because he wanted to give everyone “their space.” He denied telling Martinez that he babysat M.B.'s children. He testified that he was sometimes at the apartment with the children when their mother was away, but he was never left alone with them. He also admitted that he had spent the night in the apartment on multiple occasions when the children were there.
Discussion
        In his first issue, appellant argues that the trial court abused its discretion when it denied appellant's motion for continuance.
        A motion for continuance is a matter left to the sound discretion of the trial court. Tex. Code Crim. Proc. Ann. art. 29.06 (Vernon 2006). As a result, an appellate court reviews a trial court's ruling on a motion for continuance for abuse of discretion. Heiselbetz v. State, 906 S.W.2d 500, 511 (Tex. Crim. App. 1995). To establish an abuse of discretion, the defendant must show he was actually prejudiced by the denial of his motion. See Janecka v. State, 937 S.W.2d 456, 468 (Tex. Crim. App. 1996); Heiselbetz, 906 S.W.2d at 511.
        In this case, appellant filed an “Election and Omnibus Pretrial Motion” on June 11, 2007. This motion included pretrial discovery requests for, among other things, copies of CPS records and “any video or audio interviews conducted.” The motion also requested that, “in the interest of judicial economy,” the documents and recordings be produced “before trial so that there would not be a lengthy interruption of trial while a review is done.” On August 21, 2007, the date that trial was scheduled to begin, appellant filed a written motion for continuance, sworn to by defense counsel, stating that counsel had not yet had time to review 2,500 pages of discovery provided by the State seven days earlier or to watch the videotape of V.B.'s interview at the DCAC. When the case was called for trial, appellant announced “not ready” and directed the court's attention to his motion for continuance. The trial court denied the motion. On August 22, 2007, after jury selection and before the start of testimony, appellant again announced “not ready” and stated that “the Defense stands on the motion that it filed . . . yesterday.” The trial court again denied the motion.
        The record does not indicate that appellant made any attempt to secure a hearing or a ruling on his discovery request until the day that trial was scheduled to begin. In other words, there is no indication that appellant presented the “Election and Omnibus Pretrial Motion” to the trial court until the first day of trial, just before the start of voir dire. A motion must be presented to the trial court to preserve a complaint for appellate review and presentment means more than mere filing. Guevara v. State, 985 S.W.2d 590, 592 (Tex. App.-Houston [14th Dist.] 1999, pet. ref'd). Because appellant waited until the first day of trial to present his motion to the trial court, he cannot rely on his failure to secure a discovery order further in advance of trial as a ground for his motion for continuance. We therefore conclude the trial court did not abuse its discretion when it denied the motion for continuance.
        Furthermore, even if we overlooked appellant's delay in presenting his motion to the trial court, he has not shown actual prejudice arising from the trial court's denial of his motion for continuance. Appellant argues, for example, that he was “unable to subpoena any CPS witnesses (with potential exculpatory evidence) due to the fact that he did not know their names because they were contained in the records turned over the week before trial.” However, at the pretrial hearing held on August 21, 2007, appellant's trial counsel told the court that he had subpoenaed CPS witnesses whose names were disclosed on the State's witness list. Appellant's trial counsel also argued that the CPS records frequently mentioned that appellant had used “profane and cussing words” in front of V.B. and his sisters. Yet there is no indication that this information was brought out at trial, so it is difficult to see how appellant's defense could have suffered actual prejudice. Appellant also fails to explain how he was prejudiced by the fact that he did not view the videotape of V.B.'s DCAC interview prior to jury selection. In addition, appellant's general assertions that he did not have enough time to prepare for trial do not establish actual prejudice. See Heiselbetz, 906 S.W.2d at 512. And without a showing of actual prejudice, appellant cannot establish that the trial court abused its discretion when it denied the motion for continuance. See id.; see also Gallo v. State, 239 S.W.3d 757, 777 (Tex. Crim. App. 2007). We therefore overrule appellant's first issue.         In his second issue, appellant argues that he was denied the effective assistance of counsel. Specifically, appellant alleges that trial counsel failed to (1) adequately prepare for trial; (2) conduct an effective voir dire; (3) adequately cross-examine witnesses; (4) object to testimony; (5) preserve error for appeal; (6) object to improper closing arguments by the prosecutor “that were attacks on [appellant] over defense counsel's shoulder;” (7) require the State to prove allegations in the enhancement paragraph of the indictment that appellant was previously convicted of burglary in South Carolina;   See Footnote 2  and (8) object to the trial court's response to a note from the jury during deliberations in the guilt/innocence phase of the trial.
        Ineffective assistance of counsel is evaluated under the standard set out in Strickland v. Washington, 466 U.S. 668 (1984), and adopted in Hernandez v. State, 726 S.W.2d 53 (Tex. Crim. App. 1986) (en banc). To prevail on an ineffective assistance claim, an appellant must show (1) counsel's performance fell below an objective standard of reasonableness and (2) a reasonable probability exists that, but for counsel's errors, the result would have been different. See Strickland, 466 U.S. at 687-88. “Any allegation of ineffectiveness must be firmly rooted in the record, and the record must affirmatively demonstrate the alleged ineffectiveness.” Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). “Ineffective assistance of counsel claims are not built on retrospective speculation; they must 'be firmly founded in the record.' That record must itself affirmatively demonstrate the alleged ineffectiveness.” Bone v. State, 77 S.W.3d 828, 835 (Tex. Crim. App. 2002).         Our review of an ineffective assistance claim is highly deferential and begins with a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994) (en banc). An appellate court should not try to second guess counsel's tactical decisions that do not fall below the objective standard of reasonableness. Young v. State, 991 S.W.2d 835, 837 (Tex. Crim. App. 1999) (en banc). When, as in this case, the record is silent regarding counsel's reasons for his conduct, we will defer to counsel's decisions if there is at least the possibility that the conduct could have been legitimate trial strategy. See Ortiz v. State, 93 S.W.3d 79, 88-89 (Tex. Crim. App. 2002). Trial counsel should ordinarily be afforded the opportunity to explain his actions before being denounced as ineffective. See Goodspeed v. State, 187 S.W.3d 390, 393-94 (Tex. Crim. App. 2005). Because the reasonableness of counsel's choices often involve facts that do not appear in the record, an application for a writ of habeas corpus is normally the preferred vehicle for raising ineffective assistance of counsel claims. See Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002) (en banc).
        In the majority of cases, the undeveloped record on direct appeal will be insufficient for an appellant to satisfy the dual prongs of Strickland because the reasonableness of counsel's choices often involve facts not appearing in the cold appellate record. See Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003). This case is no different. The record in this case is undeveloped and does not shed any light on the reasons for defense counsel's actions. Nor has appellant shown that counsel's conduct was so outrageous that no reasonably competent trial attorney would have done likewise. See Mata v. State, 226 S.W.3d 425, 433 (Tex. Crim. App. 2007). It is not enough for appellant to show, “with the benefit of hindsight, that his counsel's actions or omissions during trial were merely of questionable competence.” Id. at 430; see also Bone, 77 S.W.3d at 836 (noting that “[a] vague, inarticulate sense that counsel could have provided a better defense is not a legal basis for finding counsel constitutionally incompetent.”). We must presume trial counsel had plausible reasons for his actions. Because appellant has failed to rebut the presumption that his trial counsel's actions were part of some sound trial strategy, we are unable to conclude trial counsel's performance was deficient.
        Moreover, appellant fails to argue how counsel's alleged deficiencies prejudiced him and undermined the reliability of his trial. See Herron v. State, 86 S.W.3d 621, 634 (Tex. Crim. App. 2002) (appellant's failure to show how counsel's alleged deficiency prejudiced him precludes relief in connection with an ineffective assistance claim). The only exception concerns appellant's allegation that counsel failed to challenge the prior South Carolina conviction alleged for enhancement purposes. Appellant argues that if trial counsel had forced the State to prove the enhancement allegation instead of just entering a plea of true on appellant's behalf, he would not have been subjected to an enhanced range of punishment.
        The record does not contain a finding of true on the enhancement paragraph. The indictment alleged that appellant was previously convicted in South Carolina of felony burglary. During the punishment hearing, appellant entered a plea of true to the enhancement paragraph and the State introduced certified documents from the South Carolina Department of Corrections showing that appellant was convicted on January 22, 2003, of the offense of burglary in the third degree and sentenced to the State Department of Corrections for a period not to exceed five years. The trial court made no oral pronouncement or finding on the enhancement allegation before sentencing appellant to twenty years in prison. The trial court did not include a finding on the enhancement paragraph in its written judgment.
        Courts have applied section 12.41 of the penal code, which provides for the classification of offenses defined outside the penal code, to out-of-state convictions used for enhancements. See, e.g., Tucker v. State, 136 S.W.3d 699, 701 (Tex. App.-Texarkana 2004, no pet.); Golden v. State, 874 S.W.2d 366, 368 (Tex. App.-Beaumont 1994, pet. ref'd); Trotti v. State, 698 S.W.2d 245, 246 (Tex. App.-Austin 1985, pet. ref'd). When it is clear on the face of the out-of-state document that an appellant was incarcerated in a penitentiary for a conviction in that state, the evidence of those convictions is sufficient for enhancement purposes. Golden, 874 S.W.2d at 368; see Davis v. State, 645 S.W.2d 288, 292 (Tex. Crim. App. 1983); Ex parte Blume, 618 S.W.2d 373, 376 (Tex. Crim. App. 1981). According to the documents introduced by the State, appellant was sentenced to not more than five years in the South Carolina Department of Corrections. Thus, appellant's South Carolina conviction was available for enhancement purposes. Counsel cannot be deemed constitutionally deficient for failing to challenge a valid enforcement allegation. See Ex parte White, 211 S.W.3d 316, 320-21 (Tex. Crim. App. 2007).
        Regarding the second prong of Strickland, we note that appellant's twenty-year sentence is within the statutory range for the unenhanced, second-degree felony offense of indecency with a child. See Tex. Penal Code Ann. § 12.33 (Vernon 2003). Putting aside the question of whether trial counsel should have challenged the South Carolina conviction, appellant cannot show he suffered any prejudice merely because the trial court made no finding on the enhancement allegation. See Harris v. State, 153 S.W.3d 394, 396-97 (Tex. Crim. App. 2005) (suggesting that a finding of true by a trial court on an enhancement allegation may not be implied if the trial court does not find the enhancement true on the record and the sentence is within the punishment range for an unenhanced offense). We therefore overrule appellant's second issue.
        In his third and fourth issues, appellant argues that the evidence is legally and factually insufficient to support the conviction. Specifically, appellant claims that the evidence is insufficient because appellant denied committing the offense and because “[n]umerous witnesses” testified that he “was never alone with the children.”
        In evaluating a legal sufficiency challenge, we view the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 319 (1979); Drichas v. State, 175 S.W.3d 795, 798 (Tex. Crim. App. 2005); Lane v. State, 151 S.W.3d 188, 191-92 (Tex. Crim. App. 2004); Sanders v. State , 119 S.W.3d 818, 820 (Tex. Crim. App. 2003). The fact-finder is the exclusive judge of the witnesses' credibility and the weight to be given to their testimony. Harvey v. State, 135 S.W.3d 712, 717 (Tex. App.-Dallas 2003, no pet.).
        In reviewing the factual sufficiency of the evidence, we view all of the evidence in a neutral light to determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Watson v. State, 204 S.W.3d 404, 415 (Tex. Crim. App. 2006); see also Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006). Unless the record clearly reveals a different result is appropriate, we must defer to the fact-finder's determination concerning what weight to be given to contradictory testimony. Johnson v. State, 23 S.W.3d 1, 8 (Tex. Crim. App. 2000).
        A person commits the offense of indecency with a child by contact if, with a child younger than seventeen years and not the person's spouse, the person engages in sexual contact with the child. Tex. Penal Code Ann. § 21.11(a)(1) (Vernon 2003). The indictment in this case alleged that appellant caused his hand to contact V.B.'s genitals. V.B. testified that appellant touched his “pee-pee” with his hand and, using a diagram, indicated that by “pee-pee” he was referring to his genitals. The testimony of the child victim alone is legally sufficient evidence to support a conviction for indecency with a child. See Tex. Code Crim. Proc. Ann. art. 38.07(a) (Vernon 2005); Perez v. State, 113 S.W.3d 819, 838 (Tex. App.-Austin 2003, pet. ref'd); Tear v. State, 74 S.W.3d 555, 560 (Tex. App.-Dallas 2002, pet. ref'd).
        As for the factual sufficiency of the evidence, although Holly Washington and Eric Gardner testified that appellant was never left alone with V.B., they also testified, as did Calvin Johnson, that he had been around V.B. and had spent the night at the apartment while V.B. was living there. Detective Martinez testified that appellant admitted to her that he had looked after V.B. on more than one occasion while V.B.'s mother was out of the apartment. The jurors were in the best position to evaluate the credibility of the witnesses. See Marshall, 210 S.W.3d at 625. We find no basis in the record for determining that the jury's verdict is clearly wrong and manifestly unjust or that it is contradicted by the great weight and preponderance of the evidence. See id. at 625-26. Viewing the evidence under the appropriate standards, we therefore conclude that the evidence is both legally and factually sufficient to support the conviction. We overrule appellant's third and fourth issues.         
        We affirm the trial court's judgment.
 
                                                          
                                                          AMOS L. MAZZANT
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
071208F.U05
 
Footnote 1 V.B. was eight-years-old at the time of trial.
Footnote 2 In his brief, appellant refers to the South Carolina burglary conviction as a juvenile adjudication. He argues that if trial counsel had challenged the enhancement, the State would have had to show that South Carolina law is similar to Texas law regarding the use of juvenile adjudications for enhancement purposes. See Tex. Penal Code Ann. § 12.42(f) (Vernon Supp. 2007) (providing for enhancement of felonies for certain juvenile adjudications). According to the documents introduced by the State, however, appellant was seventeen years old at the time he committed the South Carolina burglary offense. Like Texas law, South Carolina law defines a child as a person under seventeen years of age. Compare S.C. Code Ann. §§ 20-7-6605(1), 20-7-400 (2007) with Tex. Fam. Code Ann. § 51.02(2) (Vernon Supp. 2007) and § 51.04 (Vernon 2002).