Roberto Valenzuela v. The State of Texas--Appeal from 227th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-02-00732-CR
Roberto VALENZUELA,
Appellant
v.
The STATE of Texas,
Appellee
From the 227th Judicial District Court, Bexar County, Texas
Trial Court No. 2001CR5076
Honorable Philip A. Kazen, Jr., Judge Presiding

Opinion by: Karen Angelini, Justice

Sitting: Catherine Stone, Justice

Paul W. Green, Justice

Karen Angelini, Justice

Delivered and Filed: November 26, 2003

AFFIRMED

Roberto Valenzuela was convicted of indecency with a child and sentenced to twenty-years imprisonment. On appeal, Valenzuela argues that (1) the evidence is legally insufficient to support his conviction; (2) the evidence is factually insufficient, and (3) he was denied effective assistance of counsel. We overrule all issues and affirm the judgment of the trial court.

Background

Valenzuela was indicted for engaging in indecent contact with his five-year old step-daughter, A.G. (1) This alleged indecent contact was initially discovered by A.G.'s kindergarten teacher, Mary Bowe. In early March 2001, A.G. and her classmates were playing in her school's Rodeo Learning Center. (2) According to Bowe, A.G.'s classmate approached her and stated that A.G. wanted to play "nude rodeo." Concerned about this comment, Bowe questioned A.G. about what she meant by "nude rodeo." A.G. explained that she plays nude rodeo at home with her dad and that she wanted to have sex. Finding these remarks inappropriate for a girl of A.G.'s age, Bowe contacted Child Protective Services and informed A.G.'s mother of what she had heard, prompting a medical examination and investigation into the allegations.

At trial, A.G. testified that her mother worked the night-time shift at a grocery store. Thus, usually in the evenings, A.G., Valenzuela, and A.G.'s younger sisters would be at home together. After A.G.'s younger sisters went to bed, Valenzuela would watch pornographic movies with A.G and then afterwards, Valenzuela would "do sex." When asked to elaborate about what she meant, A.G. testified that on one occasion, Valenzuela engaged in sexual intercourse with her. In A.G.'s word's, Valenzuela put his "middle part" in her "middle part." While he did this, Valenzuela was breathing hard and white stuff came out of his middle part. Also, according to A.G., Valenzuela has placed his tongue and fingers inside her middle part. When asked what "middle part" meant, A.G. explained that she "goes potty" from her "middle part." A.G. also drew a stick-figure diagram indicating where her "middle part" and Valezuela's "middle part" is located on the body. This stick-figure diagram, admitted as Exhibit 10, points to the area in which the sexual organs are located. Additionally, according to A.G., Valenzuela placed his "middle part" in A.G.'s "back part where [she] go[es] poo-poo."

Legal Sufficiency

In his first issue, Valenzuela argues that the evidence is legally insufficient to support his conviction of indecency with a child. When conducting a legal sufficiency-of-the-evidence review as prescribed by Jackson v. Virginia, 443 U.S. 307, 319 (1979), we do not weigh the evidence tending to establish guilt against the evidence tending to establish innocence, nor do we assess the credibility of witnesses on each side. Ex parte Elizondo, 947 S.W.2d 202, 205 (Tex. Crim. App. 1996). We review 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, 443 U.S. at 319; Mosley v. State, 983 S.W.2d 249, 254 (Tex. Crim. App. 1998).

Section 21.11 of the Texas Penal Code provides that a person commits the offense of indecency with a child if, with a child younger than seventeen years and not the person's spouse, whether the child is of the same or opposite sex, the person does one of the following:

(1) engages in sexual contact with the child or causes the child to engage in sexual contact; or

(2) with intent to arouse or gratify the sexual desire of any person:

(A) exposes the person's anus or any part of the person's genitals, knowing the child is present; or

(B) causes the child to expose the child's anus or any part of the child's genitals.

Tex. Pen. Code Ann. 21.11(a) (Vernon Supp. 2003). Sexual contact is defined as any of the following acts, if committed with the intent to arouse or gratify the sexual desire of any person:

(1) any touching by a person, including touching through clothing, of the anus, breast, or any part of the genitals of a child; or

(2) any touching of any part of the body of a child, including touching through clothing, with the anus, breast, or any part of the genitals of a person.

Id. 21.11(c).

Here, A.G. testified that Valenzuela placed his fingers and tongue inside her "middle part." And, Valenzuela placed his "middle part" inside A.G.'s "middle part." While his "middle part" was inside her "middle part," Valenzuela engaged in heavy breathing and then "white stuff" would come out of his "middle part." Additionally, A.G. testified that Valenzuela placed his "middle part" into her "back part where [she] go[es] poo-poo." When asked what her "middle part" was, A.G. testified that her "middle part" is where she goes "potty." And, A.G. drew a diagram, admitted as Exhibit 10, where she pointed to the "middle parts" of the stick-figures. Exhibit 10 indicates that A.G. was referring to the area of the body where sexual organs are located. A.G.'s testimony alone is legally sufficient evidence to support Valenzuela's conviction. We overrule Valenzuela's first issue.

Factual Sufficiency

In his second issue, Valenzuela argues that the evidence is factually insufficient to support his conviction. When a defendant challenges the factual sufficiency of the elements of the offense on appeal, we ask whether "a neutral review of all the evidence ... 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." Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003) (quoting Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000)) (alteration in original).

Valenzuela argues that A.G.'s testimony appears to be a fantasy because when asked if she went to the doctor's office, A.G. testified to the following:

No. But when I went to my grandma's office--my grandma's house, right there where my great grandma is, my grandma inside the other room right there between those six walls right there . . . I spent the night over my grandma's house and then one night I got a stone inside my middle part.

While it is unclear what A.G. meant by this testimony, her testimony about Valenzuela's indecent contact with her is clear. Valenzuela also emphasizes that A.G. testified she was angry with Valenzuela for taking money from her mother and giving her mother costume jewelry. While this is some evidence of motive for A.G. to lie, it is the jury's province to judge A.G.'s credibility. See Johnson, 23 S.W.3d at 9 (emphasizing that we must give due deference to the fact finder's determinations, particularly those determinations concerning the weight and credibility of the evidence).

Valenzuela also stresses that in contradiction to A.G.'s testimony, Laurie Charles, a sexual assault nurse examiner at Santa Rosa Children's Hospital, testified that the medical exam did not result in evidence of vaginal or anal penetration. However, Charles also testified that there are not usually medical findings of penetration in cases like this, because with children, the sexual contact is usually not actually inside the vagina, but more in contact with the outer lips of the vagina, the labia majora. And, here, Charles testified that A.G.'s labia majora and anus were red. And, there was some "rough, patchy, shiny skin" around the labia majora. According to Charles, this "rough, patchy" skin was consistent with A.G.'s version of events. Reviewing the evidence in a neutral light, we cannot say that it demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, or that the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. We, therefore, hold that the evidence is factually sufficient and overrule Valenzuela's second issue.

Ineffective Assistance of Counsel

In his third through fourteenth issues, Valenzuela argues that he was denied effective assistance of counsel. Specifically, Valenzuela complains of his counsel's (1) failure to object to Bowe's testimony about her conversations with A.G. and another child regarding A.G.'s comments about playing "nude rodeo"; (2) failure to file pre-trial motions for discovery; (3) failure to object to the admission of pornographic videotapes; (3) failure to object to Detective Cline's testimony that if Valenzuela had wanted to give a statement, he could have done so; and (4) failure to object to the admission of photographs.

Because the test for ineffective assistance of counsel is the same under the state and federal constitutions, both inquiries are subsumed into one. Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex. Crim. App. 1986). We measure a claim of ineffective assistance of counsel against the two-prong test established by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 687 (1984). See Hernandez, 726 S.W.2d at 55-57. The appellant must first show that his attorney's performance was deficient, i.e., that his assistance fell below an objective standard of reasonableness. Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). Second, assuming the appellant has demonstrated deficient assistance, it is necessary to affirmatively prove prejudice. Id.

The assessment of whether a defendant received effective assistance of counsel must be made according to the facts of each case. Id. at 813. Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Id. Under normal circumstances, 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. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). Rarely will the trial record contain sufficient information to permit a reviewing court to fairly evaluate the merits of such a serious allegation. Id.; Thompson, 9 S.W.3d at 813. In the majority of cases, the record on direct appeal is simply undeveloped and cannot adequately reflect the failings of trial counsel. Bone, 77 S.W.3d at 833.

Here, Valenzuela's motion for new trial did not raise these issues, and no affidavits were attached to the motion for new trial. As such, Valenzuela's complaints directed at his trial counsel involve actions that may or may not be grounded in sound trial strategy. The record simply does not reflect his attorney's reasons for failing to do the things of which appellant complains. In such situations, the issues are better presented within the framework of a post-conviction writ of habeas corpus under article 11.07 of the code of criminal procedure. Tex. Code Crim. Proc. Ann. art. 11.07 (Vernon Supp. 2003); Ex parte Torres, 943 S.W.2d 469, 475-76 (Tex. Crim. App. 1997); see also Thompson, 9 S.W.3d at 813 ("A substantial risk of failure accompanies an appellant's claim of ineffective assistance of counsel on direct appeal. Rarely will a reviewing court be provided the opportunity to make its determination on direct appeal with a record capable of providing a fair evaluation of the merits of the claim . . . ."). We, therefore, overrule Valenzuela's third through fourteenth issues.

Conclusion

Having overruled all issues, we affirm the judgment of the trial court.

Karen Angelini, Justice

Do not publish

1. Valenzuela was charged in a two-count indictment. Count I charged him with aggravated sexual assault. Count II charged him with indecency with a child. The jury unanimously found that Valenzuela was guilty of count II. However, the jury was unable to reach a unanimous verdict on Count I. The trial court, therefore, declared a mistrial with respect to Count I.

2. The school created this learning center as a way for the students to learn about the rodeo.