Henry Gonzalez v. The State of Texas--Appeal from 218th Judicial District Court of Atascosa County

MEMORANDUM OPINION
No. 04-05-00409-CR

No. 04-05-00410-CR
Henry L. GONZALEZ,

Appellant
v.
The STATE of Texas,

Appellee
From the 81st/218th Judicial District Courts, Atascosa County, Texas

Trial Court Nos. 03-07-0170-CRA & 03-07-0171-CRA

Honorable Donna S. Reyes, Judge Presiding

Opinion by: Sandee Bryan Marion, Justice

Sitting: Sandee Bryan Marion, Justice

Phylis J. Speedlin, Justice

Rebecca Simmons, Justice

Delivered and Filed: October 11, 2006

AFFIRMED

A jury found defendant, Henry L. Gonzalez, guilty of aggravated sexual assault of a child and indecency with a child, and assessed punishment at thirty years' and twenty years' confinement, respectively. On appeal, defendant challenges the legal and factual sufficiency of the evidence and asserts trial counsel rendered ineffective assistance of counsel. We affirm.

SUFFICIENCY OF THE EVIDENCE

We review the sufficiency of the evidence under the appropriate standards of review. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979) (legal sufficiency); Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999) (same); Zuniga v. State, 144 S.W.3d 477, 481-85 (Tex. Crim. App. 2004) (factual sufficiency); Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996) (same).

The thirteen-year-old complainant J.A.C. testified that she and her brother M.C. spent the night at defendant's home along with their aunt, Angelita Estrada, who was appellant's girlfriend. After watching television, Angelita and J.A.C. retired for the night into the master bedroom. Sometime after midnight, defendant entered the master bedroom where Angelita and J.A.C. were sleeping.

According to J.A.C., defendant got into the bed with them, and he and Angelita had sexual intercourse while J.A.C. faced the wall. Angelita then left the bed to go into the bathroom, and defendant touched J.A.C. on her breasts, under her shirt, and placed his finger inside her vagina. When Angelita returned to the bed, defendant and Angelita again engaged in sexual intercourse. Angelita went into the bathroom a second time, and defendant again touched J.A.C. on her breasts, under her shirt, and placed his finger inside her vagina. This time, when Angelita returned to the bed, J.A.C. went into the living room to sleep near her brother. J.A.C. told M.C. that defendant had touched her. A few days later, J.A.C. saw defendant while he was cutting wood at her grandmother's house. On this day, defendant touched J.A.C.'s breasts.

According to M.C., after everyone went to bed, he walked into the master bedroom to ask if he could continue watching television. He saw defendant on the bed between Angelita and J.A.C.; but because everyone was under a blanket, he saw nothing else. After receiving permission to watch television, M.C. left the bedroom; however, he returned to ask another question. This time, he saw Angelita was not in the bed, and defendant lay facing J.A.C. M.C. backed out of the room and returned to the living room. A short time later, J.A.C. joined him, and M.C. told J.A.C. he had seen defendant touching her.

Defendant asserts the evidence is legally and factually insufficient given his age, physical disability, and limited education. Defendant is a sixty-nine-year-old man, and he contends he is physically incapable of having sexual intercourse. According to his testimony at trial, J.A.C. left the bedroom when he came into the room to sleep. He denied having sexual intercourse with Angelita, although he admitted hugging and kissing her. He also denied touching J.A.C. At trial, defendant's statement to the police was introduced into evidence. In his statement, defendant admitted to having intercourse with Angelita, and putting his finger inside J.A.C.'s vagina. (1) Angelita denied having intercourse with defendant and said he and J.A.C. were never alone in the bedroom together.

Although defendant and his girlfriend denied the allegations against him, we conclude the evidence is sufficient to support the jury's verdict on both counts.

INEFFECTIVE ASSISTANCE OF COUNSEL

During trial, J.A.C.'s grandmother was asked how she met defendant. Her reply, somewhat difficult to follow, is quoted verbatim below:

First time when he went to my - there used to be a Godfather - I don't know who - compadres (phonetically.) My brother Jesse, he died a long time ago. He told me about his story in life. He was a rapist and said, "you better take care of my mother because he liked the old women, too."

On appeal, defendant asserts his trial counsel was ineffective for failing to object to this reply. We review defendant's claim of ineffective assistance of counsel under the established standard of review. See Strickland v. Washington, 466 U.S. 668, 690 (1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). A reviewing court cannot speculate as to the reasons why trial counsel acted as he did, rather a reviewing court must presume that the actions were taken as part of a strategic plan for representing the client. See Young v. State, 991 S.W.2d 835, 837- 38 (Tex. Crim. App. 1999). The appellate record must affirmatively demonstrate the alleged ineffective assistance of counsel. See Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003);Thompson, 9 S.W.3d at 813. Generally, the trial record will not suffice to establish an ineffective assistance of counsel claim. Thompson, 9 S.W.3d at 813-14.

Here, the record is silent as to why trial counsel did not object to the witness's statement and finding trial counsel ineffective based on the record before us would call for speculation, which we will not do. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App.1994). Therefore, we conclude defendant has not met his burden of establishing that trial counsel was ineffective.

CONCLUSION

We overrule defendant's issues on appeal and affirm the trial court's judgment.

Sandee Bryan Marion, Justice

DO NOT PUBLISH

1. On appeal, defendant does not assert the trial court erred in admitting his statement into evidence.