Price, William Robert v. The State of Texas--Appeal from 178th District Court of Harris County

Affirmed and Opinion filed September 25, 2003

Affirmed and Opinion filed September 25, 2003.

In The

Fourteenth Court of Appeals

____________

NO. 14-02-00816-CR

____________

WILLIAM ROBERT PRICE, Appellant

V.

THE STATE OF  TEXAS, Appellee

On Appeal from the 178th District Court

Harris  County,  Texas

Trial Court Cause No. 918,615

O P I N I O N

Appellant, William Robert Price, was charged by indictment with aggravated sexual assault. The jury found appellant guilty and assessed his punishment at 25 years= imprisonment. In four points of error, appellant contends (1) the evidence was legally and factually insufficient to support his conviction, and (2) he received ineffective assistance of counsel. We affirm.

For a few months in 1986, Carolyn Michelle Stevens lived with appellant and her two young daughters. On several occasions, while Stevens worked, appellant cared for her two daughters. On one of those occasions, the younger daughter was watching television in her room, when appellant approached the older daughter in the living room. He threatened to kill her if she told anyone what he was about to do. Appellant then proceeded to sexually assault the complainant.

During the assault, a neighborhood friend knocked on the door and asked if the older daughter could play. Appellant told the neighbor the complainant was sick and locked the door. He then went back to the complainant and continued his assault. Afterward, he told the girl to get dressed, and threatened her life again.

Four years later, when the older daughter was 12 years-of-age, Stevens found her engaged in simulated sexual intercourse with her younger sister, at which time the older daughter confided in her mother that she had been sexually assaulted. Stevens immediately called police. After a thorough investigation, appellant was charged with, and subsequently convicted of, aggravated sexual assault.

Legal and Factual Insufficiency

In his first and second issues, appellant argues the evidence is legally and factually insufficient to support his conviction because the State failed to prove he sexually assaulted the victim.

In evaluating a legal sufficiency challenge, we view the evidence in the light most favorable to the verdict and determine whether a 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 n. 12 (1979); Garrett v. State, 851 S.W.2d 853, 857 (Tex. Crim. App. 1993). We will not overturn the verdict unless it is irrational or unsupported by proof beyond a reasonable doubt. Matson v. State, 819 S.W.2d 839, 846 (Tex. Crim. App. 1991). The jury, as the trier of fact, Ais the sole judge of the credibility of witnesses and of the strength of the evidence.@ Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Crim. App. 1999). The jury may believe or disbelieve any portion of the witnesses=testimony. Sharp. v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). Therefore, if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, we must affirm. McDuff v. State, 939 S.W.2d 607, 614 (Tex. Crim. App. 1997).

To show appellant was guilty of aggravated sexual assault as alleged in the indictment, the State had to show he intentionally and knowingly penetrated the sexual organ of another, under the age of fourteen and not his spouse, and he caused the sexual organ of the complainant, a person younger than fourteen years of age and not his spouse, to contact the sexual organ of the appellant. Tex. Pen. Code Ann. ' 22.021(a)(1)(A)(i) & (iii) (Vernon Supp. 2003). Appellant contests only the State=s proof to show he committed aggravated sexual assault.

The complainant, a twelve-year-old girl, testified appellant Astuck his private inside of her private.@ Appellant then threatened to kill the victim, her mother, or her little sister if she told anyone about the incident. During cross-examination, the complainant admitted this was an isolated incident, and that she did not tell her mother until four years later when her mother found her involved in simulated sexual intercourse with her younger sister. The victim=s testimony, alone, however, is sufficient to support the jury=s finding that appellant caused the contact of her sexual organ with his. Vernon v. State, 841 S.W.2d 407, 409B10 (Tex. Crim. App. 1992). After examining the evidence, we find it is sufficient to permit a rational factfinder to convict appellant of aggravated sexual assault. Appellant=s first issue is overruled.

Appellant, however, also contends the evidence is factually insufficient. When reviewing claims of factual insufficiency, it is our duty to examine the jury=s weighing of the evidence. Clewis v. State, 922 S.W.2d 126, 133, 134 (Tex. Crim. App. 1996). There are two ways in which evidence can be factually insufficient: (1) the evidence is so weak as to be clearly wrong or manifestly unjust, or (2) the finding of a vital fact is so contrary to the great weight and preponderance of the evidence as to be clearly wrong. Zulianiv. State, 97 S.W.3d 589, 593 (Tex. Crim. App. 2003). Determining which standard applies depends upon whether the complaining party had the burden of proof at trial. Id. If the complaining party did not have the burden of proof, then the Amanifestly unjust@standard applies. Id. On the other hand, if the complaining party had the burden of proof, then the Aagainst the great weight and preponderance@ standard applies. Id. Under the Texas Court of Criminal Appeals= modified approach, if the defendant challenges the factual sufficiency of the elements of the offense, even though the State had the burden of proof, we must review the evidence using both standards. Id. Thus, when reviewing factual sufficiency challenges, we must determine Awhether a neutral review of all of the evidence, both for and against the finding, demonstrates that 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, 11 (Tex. Crim. App. 2000).

Appellant contends the evidence is factually insufficient to support his conviction because of many alleged inconsistencies and inaccuracies in the State=s evidence. Appellant argues no physical evidence was offered to show he sexually assaulted the victim. Although the examining doctor admitted the victim=s medical exam failed to establish whether the victim was sexually abused, the doctor also explained that this is not unusual in cases of sexual abuse, and that in over ninety percent of these cases there is no evidence of physical trauma. Here, the victim was examined approximately four years after the incident was alleged to have occurred. Additionally, if the victim had bruising or redness in the vaginal area, it would heal in a few weeks.

Appellant also argues the victim lied as to why she told her mother about the sexual assault. On direct examination, the victim testified she told her mother of the attack while she was having her monthly cycle and her mother Acould tell something was wrong.@ On cross-examination, the victim admitted her mother walked in as she was engaging in a simulated sex act with her younger sister. After telling her mother of the sexual assault, the complainant=s mother lowered the complainant=s punishment for her behavior.

The jury disregarded appellant=s defense as was its right. Moore v. State, 804 S.W.2d 165, 166 (Tex. App.CHouston [14th Dist.]1991, no pet.) (holding jury is entitled to accept the State=s version of the facts and reject appellant=s version or reject any of the witnesses= testimony). We find the verdict was not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust nor does the record undermine our confidence in the jury=s determination. Appellant=s second issue is overruled.

Ineffective Assistance of Counsel

In his third issue, appellant contends he received ineffective assistance of counsel at the guilt/innocence phase of the trial. He contends his trial counsel failed to (1) request an instruction to disregard; (2) request a mistrial at the appropriate time; (3) establish the exact time appellant lived with the victim=s mother; and (4) investigate critical fact witnesses.

Under Strickland, appellant must demonstrate (1) counsel=s performance was deficient and not reasonably effective and (2) the deficient performance prejudiced the defense. Id. Essentially, appellant must show his counsel=s representation fell below an objective standard of reasonableness, based on prevailing professional norms, and there is a reasonable probability that, but for his counsel=s unprofessional errors, the result of the proceeding could have been different. Id. at 693; Valencia v. State, 946 S.W.2d 81, 83 (Tex. Crim. App. 1997).

Judicial scrutiny of counsel=s performance must be highly deferential and we are to indulge a strong presumption that counsel was effective. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). We presume counsel=s actions and decisions were reasonably professional and that they were motivated by sound trial strategy. Id. Moreover, to rebut this presumption, appellant must show, by a preponderance of the evidence, why trial counsel did what he did. Id. Any allegation of ineffectiveness must be firmly founded in the record and the record must affirmatively demonstrate the alleged ineffectiveness. McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996), overruled on other grounds by Mosley v. State, 983 S.W.2d 249, 263 (Tex. Crim. App. 1998). If the record contains no evidence of the reasoning behind trial counsel=s actions, we cannot conclude counsel=s performance was deficient or speculate about the reasons behind trial counsel=s actions. Jackson, 877 S.W.2d at 771.

If appellant proves his counsel=s representation fell below an objective standard of reasonableness, he must still affirmatively prove prejudice as a result of those acts or omissions. Strickland, 466 U.S. at 693; McFarland, 928 S.W.2d at 500. Counsel=s errors, even if professionally unreasonable, do not warrant setting the conviction aside if the errors had no effect on the judgment. Strickland, 466 U.S. at 691. Appellant must prove that counsel=s errors, judged by the totality of the representation, denied him a fair trial, or his claim fails. McFarland, 928 S.W.2d at 500.

There may well have been good reasons counsel did not request an instruction to disregard, request a mistrial, establish the exact time appellant lived with the victim=s mother; or subpoena certain witnesses, but he was not afforded an opportunity to explain his actions. Without such an opportunity, appellant failed to rebut the presumption that counsel=s actions were reasonably professional and motivated by sound trial strategy. McKinnyv. State, 76 S.W.3d 463, 473 (Tex. App.CHouston [1st Dist.] 2002, no pet.); Stults v. State, 23 S.W.3d 198, 208B09 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d). Appellant=s third issue is overruled.

In his fourth issue, appellant contends his trial attorney provided ineffective assistance of counsel during the punishment phase of the trial because he did not present an adequate oral argument. The record contains a cogent argument delivered by counsel on appellant=s behalf at the punishment phase. Appellant does not suggest in his appellate brief in what manner the argument was allegedly defective or inadequate. Moreover, we will not speculate on how or in what manner appellant might be dissatisfied with his counsel=s efforts. Appellant has presented nothing for our review, and his fourth point of error is overruled.

The judgment of the trial court is affirmed.

/s/ J. Harvey Hudson

Justice

Judgment rendered and Opinion filed September 25, 2003.

Panel consists of Justices Yates, Hudson, and Frost.

Do Not Publish CTex. R. App. P. 47.2(b).