Delgado, Arturo Dominguez v. The State of Texas--Appeal from 232nd District Court of Harris County

Affirmed and Memorandum Opinion filed December 13, 2005.

In The

Fourteenth Court of Appeals

_______________

NO. 14-04-00879-CR

NO. 14-04-00880-CR

_______________

ARTURO DOMINGUEZ DELGADO, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 232nd District Court

Harris County, Texas

Trial Court Cause Nos. 965,911 & 965,912

M E M O R A N D U M O P I N I O N

Arturo Dominguez Delgado was convicted by a jury of both indecency with a child (Trial Court Cause No. 965,912, Appellate Cause No. 14-04-00880-CR) and aggravated sexual assault of a child (Trial Court Cause No. 965,911, Appellate Cause No. 14-04-00879-CR) and has appealed both. However, because he raises no issues on appeal regarding his conviction for indecency with a child, the judgment in Trial Cause No. 965,912 is affirmed. In appealing his conviction for aggravated sexual assault of a child, appellant contends that: (1) he was denied effective assistance of counsel; and (2) the trial court erred by not submitting a definition of proof beyond a reasonable doubt to the jury. We affirm.

Appellant=s first issue argues that his trial counsel was ineffective by failing to: (1) conduct an adequate factual investigation; (2) properly prepare appellant for his testimony; and (3) object to victim-impact evidence at the guilt-innocence stage of trial.

To prevail on a claim of ineffective assistance of counsel, appellant must show that: (1) counsel=s performance was below an objective standard of reasonableness; and (2) there is a reasonable probability that, but for this deficient performance, the result of the proceeding would have been different. Wiggins v. Smith, 539 U.S. 510, 521, 534 (2003). Although strategic decisions made by counsel after thorough investigation are unchallengeable, strategic decisions made after less than complete investigation are reasonable only to the extent that the known evidence would not have led a reasonable attorney to investigate further. Id. at 521, 527.

In this case, appellant claims that his trial counsel failed to obtain a ruling on his motion for investigative funds and failed to talk to key witnesses prior to trial as part of his own investigation. In particular, he argues that by not interviewing the complainant=s mother, trial counsel did not at first appreciate the usefulness of showing the extent of the complainant=s relationship with her dropout, drug-abusing boyfriend. Appellant also asserts that counsel did not speak to the complainant, the examining physician, and potentially to the psychologist and Officers Parnell and Moreno. Appellant contends that Aif counsel had talked to these key witnesses prior to trial, he would have known to focus attention on@ the complainant=s boyfriend, which Awould have taken the sting out of the medical evidence@ presented at trial. However, appellant has not developed a record of whatever additional testimony he contends these witnesses could have provided to support such a defensive theory, and thus has not demonstrated that any failure to investigate that alleged evidence was deficient or prejudicial.

Additionally, appellant alleges that his counsel failed to prepare him for his testimony at trial by not providing appellant with a copy of his recorded confession to avoid any discrepancies between his trial testimony and confession. Particularly, appellant claims that had he been familiar with his recorded confession, in which he admitted to putting his hands inside the complainant=s clothes and touching her skin, he would not have testified that he touched the complainant=s genitals through her underwear without Atouching her skin in that area.@ Without impeachment with this discrepancy, appellant argues he Amight have been able to raise reasonable doubt as to the sexual assault with his admission of the other offense,@ i.e. indecency with a child. Again, however, appellant fails to explain how the lack of this basis for impeachment (creating, if anything, a more consistent record of his guilt) would have operated to raise any reasonable doubt or otherwise shown a reasonable probability that the outcome of the proceeding would have been different.

Lastly, appellant argues that trial counsel=s failure to object when the State introduced victim-impact evidence among Aaccommodation@ evidence Amay have caused excessive sympathy for the complainant in the guilt-stage deliberations.@ However, appellant=s brief does not demonstrate that, but for this alleged error, individually or in combination with the others, there is a reasonable probability that he would not have been convicted. Therefore, appellant=s first issue is overruled.

Appellant=s second issue contends the trial court erred in not submitting a definition of proof beyond a reasonable doubt to the jury. However, as appellant=s brief acknowledges, a trial court is not required to instruct the jury on the definition of Abeyond a reasonable doubt.@ Woods v. State, 152 S.W.3d 105, 115 (Tex. Crim. App. 2004) cert. denied, U.S. __, 125 S. Ct. 2295, 161 L. Ed. 2d 1092 (2005); Paulson v. State, 28 S.W.3d 570, 573 (Tex. Crim. App. 2000). Because appellant=s second issue thus fails to show that the trial court erred, it is overruled, and the judgment of the trial court is affirmed.

/s/ Richard H. Edelman

Justice

Judgment rendered and Memorandum Opinion filed December 13, 2005.

Panel consists of Justices Fowler, Edelman, and Guzman.

Do Not Publish C Tex. R. App. P. 47.2(b).