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

MEMORANDUM OPINION
No. 04-03-00474-CR
Rudy REYES,
Appellant
v.
The STATE of Texas,
Appellee
From the 227th Judicial District Court, Bexar County, Texas
Trial Court No. 2001-CR04034
Honorable Philip A. Kazen, Jr., Judge Presiding

Opinion by: Paul W. Green, Justice

Sitting: Paul W. Green, Justice

Sandee Bryan Marion, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: July 28, 2004

AFFIRMED

Following a jury trial, Rudy Reyes (Reyes) was found guilty of aggravated sexual assault with a child and indecency with a child. Because Reyes was a repeat offender, the trial court assessed punishment in both counts at a $10,000 fine and life confinement in prison. On appeal, Reyes alleges seven points of error based on his assertion that the evidence was insufficient to show that he committed more than one sexual offense.

Admission of Testimony

In his first issue, Reyes contends the trial court abused its discretion by designating the four-year-old victim's sixteen-year-old aunt, Elizabeth Knapp (Knapp), as an outcry witness, allowing her to testify as to what the victim told her. Specifically, Reyes argues the State did not provide notice of Knapp's intent to offer the statement, did not prove that Knapp was over eighteen years of age, and did not prove that the outcry statement was reliable. Under section 38.072 of the Texas Code of Criminal Procedure the hearsay statement of a child abuse victim is admissible when made to an individual other than the defendant who is eighteen years of age or older. Tex. Code Crim. Proc. Ann. 38.072 (Vernon Supp. 2004).

Reyes contends that because Knapp is under eighteen, the State violated the statute. However, Reyes concedes that his lawyers did not object to Knapp's testimony or seek a hearing before the trial court to determine the admissibility or the reliability of the outcry statements. In order to preserve a complaint for appellate review, counsel must object or otherwise bring the complaint to the trial judge's attention. Tex. R. App. 33.1; Bouldin v. State, 100 S.W.3d 355, 356 (Tex. App.--San Antonio 2002, no pet.). Therefore, Reyes waived his complaint by failing to object. We overrule his first issue.

Ineffective Assistance of Counsel

In his second issue, Reyes contends that he was denied his right to effective assistance of trial counsel as guaranteed by the Sixth Amendment to the United States Constitution. In evaluating claims for ineffective assistance of counsel, we follow the standard of review established in Strickland v. Washington, 466 U.S. 668, 687 (1984) and adopted in Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). Under the Strickland two step analysis, a defendant must first show that counsel's performance was so deficient as to fall below an objective standard of reasonableness. Thompson, 9 S.W.3d at 812. Second, the defendant must affirmatively prove he was prejudiced by counsel's conduct. Id. Prejudice is demonstrated when the defendant shows a reasonable probability that, but for the counsel's unprofessional errors, the result of the proceeding would have been different. Holland v. State, 761 S.W.2d 307, 314 (Tex. Crim. App. 1988). Whether a defendant has received ineffective assistance of counsel is to be judged by the totality of the representation, not by isolated acts or omissions of trial counsel. Wilkerson v. State, 726 S.W.2d 542, 548 (Tex. Crim. App. 1986). The defendant bears the burden of proving ineffective assistance of counsel by a preponderance of the evidence which must be firmly supported by the record. Thompson 9 S.W.3d at 813. The defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994).

On appeal, Reyes contends that his trial counsel was ineffective because he did not request a hearing on section 38.072 and because he failed to object to the testimony of Knapp, as well as the testimony of Brenda Wilkerson (Wilkerson), the victim's care giver and a second outcry witness. The record, however, is silent as to the extent of the trial counsel's investigation into the factual and legal basis of the Reyes's case. Further, Reyes asks this court to speculate about defense counsel's trial strategy, something we cannot do; therefore, we hold that Reyes did not meet his burden of proving ineffective assistance of counsel by a preponderance of the evidence. We must reject Reyes's ineffective assistance claim and overrule his second issue.

Jury Charge: Two Separate Counts

In his third issue, Reyes contends that the trial court erred in submitting one count of aggravated sexual assault and one count of indecency with a child to the jury, arguing the evidence was insufficient to demonstrate two separate and distinct events. In Reyes's fourth issue, he contends that evidence of a single act of sexual assault was insufficient to support instructions permitting the jury to convict and sentence appellant for committing both aggravated sexual assault and indecency with a child. Reyes's complaint is limited to an assertion that no evidence was presented to demonstrate the charge of aggravated sexual assault as a separate and distinct offense from indecency with a child; he does not complain that the evidence was insufficient to demonstrate the commission of the alleged offenses when they are considered individually. Because issues three and four involve related law and facts, we will review them together.

We review an attack on a jury charge by first determining whether the charge error was objected to in a timely manner. Huizar v. State, 29 S.W.3d 249, 251 (Tex. App.--San Antonio 2000, pet. ref'd). If the error in the charge was the subject of a timely objection in the trial court, then we must reverse if the error "is calculated to injure the rights of defendant, which means no more than that there must be some harm to the accused from the error." Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985). However, if no proper objection was made at trial, the defendant must claim fundamental error. Id. Error is "fundamental" when it is so egregious and harmful as to prevent the defendant from receiving a fair and impartial trial. Id. To determine whether Reyes suffered egregious harm, we consider: (1) the entire charge; (2) the state of the evidence, including contested issues; (3) arguments of counsel; and (4) other relevant information. Id. Because the review of the record reveals no objections by Reyes to the instructions submitted by the trial court on the grounds asserted as error, we will review the jury charge to determine if there was an egregious error.

Under the Texas Penal Code, a person commits the offense of aggravated sexual assault if that person intentionally or knowingly causes the penetration of the anus or sexual organ of a child by any means and the victim is younger than 14 years of age. Tex. P. Code Ann. 22.021 (Vernon 2003). The Code also instructs that an individual commits indecency with a child if the person engages in sexual contact with a child younger than 17 years of age. Id. at 21.11(a)(1). A charge on a lesser-included offense of indecency with a child, in addition to aggravated sexual assault would be proper "if the evidence at trial raised the issue that appellant intended to arouse or gratify his sexual desire while in course of committing the alleged penetration." Beltran v. State, 30 S.W.3d 532, 534 (Tex. App.--San Antonio 2000, no pet.) (quoting Ochoa v. State, 982 S.W.2d 904, 907 (Tex. Crim. App. 1998)); see Hutchins v. State, 992 S.W.2d 629, 633 (Tex. App.--Austin 1999, pet ref'd) (finding appellant's sexual touching of the victim to be a distinct act from his sexual penetration of the victim).

Here, the State introduced evidence that Reyes committed more than one sexual offense. Based on the testimony of both Knapp and Wilkerson, the victim told them of two distinct acts perpetrated by "Daddy Rudy," one involving the penetration of the victim's sexual organ with that of the appellant's and the other involving the touching of the victim's sexual organ by the appellant. Based on the testimony, the jury charge as a whole properly instructed the jury on aggravated sexual assault and indecency with a child. Therefore, we cannot say Reyes failed to receive a fair and impartial trial. Any error in the jury charge, then, was not egregious. We overrule Reyes's third and fourth issues.

Jury Charge: Lesser Included Offense

In his fifth issue, Reyes states that the trial court erred in failing to instruct the jury that indecency with a child is a lesser included offense of aggravated sexual assault. Again, we review any error in the jury charge under the Almanza standard. Almanza, 686 S.W.2d at 171. Because Reyes failed to object to any potential error, we will reverse only if the trial court's failure to include this instruction created an egregious error. Id.

In support of his argument, Reyes cites Ochoa v. State in which this Court found a trial court's failure to instruct the jury regarding lesser included offenses to have caused the jury to convict the defendant of two crimes arising from the same transaction. 982 S.W.2d at 907. As stated above, there were, in fact, two separate transactions, the aggravated assault and the indecency with a child. Therefore, the trial court did not commit egregious error in failing to instruct the jury regarding the lesser charge. We overrule Reyes's fifth issue.

Jury Charge: Election Between the Two Allegations

In his sixth issue, Reyes argues the trial court erred in submitting a charge to the jury which allowed for convictions on both aggravated sexual assault and indecency with a child without ordering the State to elect between the two allegations in the indictment. However, the concept of mandating an election by the State is inapplicable here because, as discussed above, the State has proven that there were two distinct and separate acts. See Francis v. State, 36 S.W.3d 121 (Tex. Crim. App. 2000).

In Francis, the State elected to prosecute on two acts of indecency with a child. Id at 122. The trial court denied the defendant's request to require the State to elect between the two different acts and allowed a conviction on a finding that the defendant engaged in sexual contact by touching "the breast or genitals of [the] victim." Id. However, the Court of Criminal Appeals concluded that the submission of two separate offenses in the disjunctive was error because it was conceivable that six members of the jury convicted the defendant on the breast-touching offense and six members convicted him on the genital-touching offense. Id at 125.

The present case differs from Francis because Reyes was charged in two separate counts with two separate and distinct offenses. In addition, the jury was not charged in the disjunctive but was required to reach a verdict as to each count. Therefore, the trial court did not err in submitting each count to the jury without requiring the state to make an election between the two counts. Bottenfield v. State, 77 S.W.3d 349, 359 (Tex. App.--Fort Worth, 2002, pet. ref'd). We overrule Reyes's sixth issue.

Double Jeopardy

In Reyes's seventh and final issue, he contends that his convictions for both aggravated sexual assault and indecency with a child are disallowed by the Fifth Amendment's prohibition against multiple convictions for the same conduct. Generally, a double jeopardy claim must be raised in the trial court to preserve error for appellate review. Gonzalez v. State, 8 S.W.3d 640, 643 (Tex. Crim. App. 2000); Honeycutt v. State, 82 S.W.3d 545, 547 (Tex. App.-- San Antonio 2002, pet. ref'd). However, an appellant may raise a double jeopardy claim for the first time on appeal when 1) the undisputed facts show that any double jeopardy violation is clearly apparent from the face of the record; and 2) enforcement of the usual rules of procedural default serves no legitimate purpose. Gonzalez, 8 S.W.3d at 643; Honeycutt, 82 S.W.3d at 547. A violation of the double jeopardy clause occurs when the evidence establishes the defendant has committed only one offense, but he is convicted of more than one offense. See Ochoa, 982 S.W.2d at 908.

In the case at hand, Reyes failed to raise a double jeopardy objection at trial. In addition, a violation of the clause is not clearly apparent on the face of the record because the State has established two separate and distinct acts which support multiple convictions. Therefore, Reyes cannot raise this issue for the first time on appeal. We overrule Reyes's seventh issue.

The judgment of the trial court is affirmed.

Paul W. Green, Justice

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