Cruz Sarabia v. The State of Texas--Appeal from 38th Judicial District Court of Medina County

MEMORANDUM OPINION

No. 04-05-00450-CR

Cruz SARABIA,

Appellant

v.

The STATE of Texas,

Appellee
From the 38th Judicial District Court, Medina County, Texas

Trial Court No. 03-12-9053-CR

Honorable Charles E. Sherrill , Judge Presiding

Opinion by: Phylis J. Speedlin , Justice

Sitting: Alma L. L pez, Chief Justice

Sandee Bryan Marion, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: July 26, 2006

AFFIRMED

Cruz Sarabia appeals his conviction of injury to a child, asserting that the evidence was factually insufficient to support his conviction and that he received ineffective assistance of counsel during trial. We affirm the trial court's judgment.

Background

Sarabia is the father of the complainant, Noah Sarabia and was awarded sole managing custody of him after he and Noah's mother, Amy Blessing, divorced. Noah lived with Sarabia in Castroville and visited his mother in San Antonio weekly and spoke to her on the phone daily.

During the summer of 2003, Sarabia hired Matthew and Jody Penrod to babysit five-year-old Noah during the day in their home while Sarabia worked. Noah had recently been suffering from constipation that caused nausea and vomiting; he saw his regular pediatrician in San Antonio for this condition. On several days during the week of June 9-13, 2003, Sarabia received phone calls from the Penrods saying Noah was vomiting and complaining of stomach cramps. Each time this occurred, Sarabia left work, picked up Noah, and spent the rest of the day with him. Noah told Sarabia that he was faking an illness because he wanted to spend more time with Sarabia and Blessing together. As punishment for his behavior, on Friday, June 13, 2003, Sarabia put Noah over his lap and spanked him.

On Monday, June 16, 2003, Jody Penrod called Sarabia, reporting that Noah was again complaining of stomach cramps. Sarabia did not pick up Noah until the evening, but Noah told Sarabia that he had received four swats with a paddle from Matthew Penrod because of his "behavior." Sarabia had given the Penrods permission to use a paddle on Noah if his behavior continued. Later that evening, Sarabia spanked Noah with a folded belt for what he described as "disobedience."

On Tuesday, June 17, 2003, Sarabia again took Noah to the Penrods, where Matthew told Sarabia he would not spank Noah anymore because he "did not feel good about it." Sarabia received a phone call later that day from the Penrods with a report that Noah was acting the same way and complaining of stomach pain; Sarabia told the Penrods he would "deal with it that evening." That evening when Sarabia arrived to pick up Noah, Matthew Penrod told Sarabia that he had again paddled Noah five times. Later that evening, while preparing Noah for a bath, Sarabia observed a bruise and redness on his bottom. He called Blessing and told her his observations. She became upset and demanded to see Noah, but because Sarabia feared Blessing would overreact, he requested they meet outside the Castroville police station. Blessing's parents arrived at the police station before Blessing arrived. When Blessing arrived, she noticed two policemen in the parking lot who then approached Blessing. After asking Blessing what was going on, one police officer told Blessing to allow Noah to go home with her parents, and that all parties should leave. The officers did not see Noah's injuries nor did they allow Blessing to speak to Noah, her parents or Sarabia. Once they left the parking lot, Blessing's parents called Blessing, stating that Noah was in pain and could not sit on his bottom in the car; they agreed to meet at the Methodist Children's Hospital emergency room in San Antonio. Noah was examined by a doctor and a nurse. The nurse had difficulty removing Noah's underwear because his bottom was so raw. The doctor prescribed pain medication and suggested cold compresses. The emergency room doctor then asked the nurse to call the San Antonio Police Department and Child Protective Services (CPS) after observing Noah's injuries.

The next day, June 18, 2003, a CPS investigation commenced in Medina County. Blessing gave a statement to CPS and Noah was interviewed by Mark Dominguez, the CPS investigator assigned to the case. Dominguez photographed Noah's injuries. Blessing signed a safety plan promising not to return Noah to Sarabia and a protective order was entered. Dominguez also interviewed Sarabia. Dominguez made a finding of child abuse by Sarabia, who was then charged with injury to a child, causing bodily injury. On January 12, 2005, the jury returned a guilty verdict. Appellant filed a motion for new trial, which was denied. This appeal followed.

Analysis

Sarabia raises two issues on appeal. First, Sarabia challenges the factual sufficiency of the evidence to support his conviction for intentionally or knowingly causing bodily injury to a child. Second, Sarabia claims he received ineffective assistance of counsel. We overrule both issues and affirm the trial court's judgment.

Factual Sufficiency

In determining the factual sufficiency of the evidence, we view "all the evidence in a neutral light, both for and against the finding, and set aside the verdict if '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.'" Vodochodsky v. State, 158 S.W.3d 502, 510 (Tex. Crim. App. 2005). There are two ways in which evidence may be factually insufficient: (1) if the evidence supporting the verdict is too weak to support the finding of guilt beyond a reasonable doubt; or (2) if contrary evidence exists that is strong enough that the beyond-a-reasonable-doubt standard could not have been met. Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex. Crim. App. 2004). The appellate court is authorized to disagree with the jury's determination, even if probative evidence exists which supports the verdict, but must avoid substituting its judgment for that of the fact-finder. Vodochodsky, 158 S.W.3d at 510; Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000) (appellate court's evaluation should not substantially intrude upon the jury's role as the sole judge of the weight and credibility given to witness testimony).

Sarabia contends that the evidence was factually insufficient to support his conviction for injury to a child, either as a primary actor or as a party. (1) A person commits an offense if he intentionally, knowingly, recklessly, or with criminal negligence causes bodily injury to a child. Tex. Pen. Code Ann. 22.04(a)(3), (f) (Vernon 2003). A person acts intentionally, or with intent, with respect to a result of his conduct when it is his conscious objective or desire to cause the result. Tex. Pen. Code Ann. 6.03(a) (Vernon 2003). A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result. Tex. Pen. Code Ann. 6.03(b) (Vernon 2003). In addition, a person is criminally responsible for a result, if the result would not have occurred but for his conduct, operating either alone or concurrently with another cause, unless the concurrent cause was clearly sufficient to produce the result and the conduct of the actor was clearly insufficient. Tex. Pen. Code Ann. 6.04 (a) (Vernon 2003).

During Sarabia's own testimony, he admitted to striking Noah either with his hand or belt on Friday, June 13, 2003 and Monday, June 16, 2003 and also admitted to knowing that Matthew Penrod paddled Noah on both Monday, June 16, 2003 and Tuesday, June 17, 2003. He testified that he warned Noah that if he continued disobeying by faking illness when he was with the Penrods, that he would get spanked. Sarabia said he believed Noah needed to be disciplined for this behavior and gave the Penrods permission to paddle Noah if it continued. In addition, Mark Dominguez, the CPS investigator, testified that when he questioned Sarabia about the bruises found on Noah, Sarabia responded by stating, "What do you expect there to be from a spanking?" Dominguez explained to Sarabia during that interview that Noah's injuries were considered physical abuse. Sarabia responded by saying, "Who's law is it? The law that you are talking about is man-made law. I don't answer to no man, only God." Additionally, Dominguez testified regarding Noah's injuries, describing his bottom as "black and blue," saying he "couldn't believe it," and that he had never seen anything like his injuries in his six years of work in this field. Medical records indicate that the chief complaint of Noah when he went to the hospital on Tuesday, June 17, 2003, was that he was "paddled on [his] buttock." The child reported, according to the medical records that "Matt" paddled him on two occasions and his dad "whipped" him with a belt. The records catagorize Noah's injuries as "severe bruising."

After a review of the entire record, we hold that sufficient evidence was presented to the jury to support a finding of guilt beyond a reasonable doubt, and that such finding was not greatly outweighed by contrary proof. See Vodochodsky, 158 S.W.3d at 510. It is the jury's prerogative to draw reasonable inferences from the evidence and to judge the credibility of the witnesses and the weight to be given their testimony. Jones v. State, 944 S.W.2d 642, 647-48 (Tex. Crim. App. 1996). We therefore overrule Sarabia's first issue.

Ineffective Assistance of Counsel

In Sarabia's second issue, he argues that he received ineffective assistance of counsel during the course of his trial in violation of the federal and state constitutions. U.S. Const. amend. VI; Tex. Const. art. 1, 10. Specifically, Sarabia claims his trial counsel was ineffective by failing to: (1) request a charge on a lesser mental state; (2) offer inculpatory admissions by the co-defendant, Matthew Penrod; (3) invoke the rule of optional completeness to admit inculpatory statements by Penrod; (4) challenge the admissibility of Noah's statements to medical personnel that were not made in the course of treatment; and (5) object to improper jury argument.

To establish ineffective assistance of counsel, a defendant must show by a preponderance of the evidence that (1) his trial counsel's performance was deficient, and (2) the deficient performance prejudiced him to such a degree as to deprive him of a fair trial. Strickland v. Washington, 466 U.S. 668, 687 (1984); Hernandez v. State, 988 S.W.2d 770, 770 n. 3 (Tex. Crim. App. 1999); Harling v. State, 899 S.W.2d 9, 12 (Tex. App.--San Antonio 1995, pet. ref'd). Assertions of ineffectiveness must be firmly founded in the record, which must affirmatively demonstrate the alleged ineffectiveness. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim App. 2005). When there is no record or when the record is silent on counsel's reasoning or strategy, we must generally presume the trial counsel had a plausible reason for his actions; we will not indulge in speculation to find trial counsel ineffective. Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999). We adhere to this presumption because "trial counsel should ordinarily be afforded an opportunity to explain his actions before being denounced as ineffective." Goodspeed, 187 S.W.3d at 392. "Absent such an opportunity, an appellate court should not find deficient performance unless the challenged conduct was 'so outrageous that no competent attorney would have engaged in it.'" Id. (citations omitted).

Here, although Sarabia filed a motion for new trial, he did not raise ineffective assistance as a ground for relief. Thus, no record was developed in support of Sarabia's claim of ineffective assistance. Sarabia relies solely upon the reporter's record of the trial, but that record contains no evidence of trial counsel's reasoning. From our review of the record, we cannot conclude that trial counsel's conduct was so outrageous that no competent attorney would have engaged in it. Id. Without evidence in the record to rebut the prevailing presumption that trial counsel's actions were within the range of reasonable performance, we hold that Sarabia has failed to establish deficient performance by his trial counsel, and has therefore failed to prove ineffective assistance of counsel pursuant to Strickland.

Based on the foregoing reasons, Sarabia's issues on appeal are overruled and the trial court's judgment is affirmed.

Phylis J. Speedlin , Justice

Do Not Publish

1. He was charged with injury to a child, both as a primary actor and as a party. The jury returned a general verdict of guilty.