ELOY JASSO CEDILLO v. THE STATE OF TEXAS--Appeal from 206th District Court of Hidalgo County

 NUMBER 13-03-00689-CR

 COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI  B EDINBURG

ELOY JASSO CEDILLO, Appellant,

v.

THE STATE OF TEXAS, Appellee.

 On appeal from the 206th District Court of Hidalgo County, Texas.

   MEMORANDUM OPINION

 Before Chief Justice Valdez and Justices Hinojosa and Rodriguez

Memorandum Opinion by Justice Hinojosa

A jury found appellant, Eloy Jasso Cedillo, guilty of one count of aggravated sexual assault[1] and eight counts of indecency with a child.[2] The jury assessed punishment at twenty-five years= imprisonment for the aggravated sexual assault and fifteen years= imprisonment for each count of indecency with a child. The trial court ordered the sentences to run concurrently. In eight issues, appellant contends (1) the application of Malik v. State violates due process, (2) the trial court erred in admitting extraneous offense evidence, and (3) his trial counsel was ineffective. We affirm.

A. Jury Charge Error

In his first issue, appellant contends that the application of Malik v. State, 953 S.W.2d 234 (Tex. Crim. App. 1997), to Count One (the aggravated sexual assault charge) violates the federal due process clause because United States Supreme Court precedent mandates that the jury, not the appeals court, must make fact findings on all essential elements of the offense charged. Specifically, appellant argues that because the issue of the victim=s age, a necessary element to the offense of aggravated sexual assault, was not submitted to the jury, the jury was unable to convict him beyond a reasonable doubt. The State concedes that there is error in the application paragraph of the jury charge as to Count One. However, the State contends that such error does not implicate the issue of sufficiency of the evidence under Malik, but constitutes jury charge error which must be evaluated under Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1985), and its progeny. We agree with the State and will address appellant=s issue accordingly.[3]

When an appellant claims that a jury charge error violated a constitutional right, and the appellant fails to preserve the jury charge error, the applicable standard of review is set out in article 36.19 of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 36.19 (Vernon 1981); Hutch v. State, 922 S.W.2d 166, 170 (Tex. Crim. App. 1996) (citing Almanza, 686 S.W.2d at 171).

First, an appellate court must determine whether error exists in the jury charge. Second, the appellate court must determine whether sufficient harm was caused by the error to require reversal. Hutch, 922 S.W.2d at 170; Arline v. State, 721 S.W.2d 348, 351 (Tex. Crim. App. 1986). The degree of harm necessary for reversal depends upon whether the error was preserved. Hutch, 922 S.W.2d at 170-71; Arline, 721 S.W.2d at 351. Error properly preserved by an objection to the charge will require reversal Aas long as the error is not harmless.@ Almanza, 686 S.W.2d at 171. However, when the charging error is not preserved, a greater degree of harm is required. Hutch, 922 S.W.2d at 171. This standard of harm is described as Aegregious harm.@ Almanza, 686 S.W.2d at 171. Errors which result in egregious harm are those which affect Athe very basis of the case,@ deprive the defendant of a Avaluable right,@ or Avitally affect a defensive theory.@ Id. at 172. In either event, when conducting a harm analysis the reviewing court may consider the following four factors: (1) the charge itself; (2) the state of the evidence including contested issues and the weight of the probative evidence; (3) arguments of counsel; and (4) any other relevant information revealed by the record of the trial as a whole. Bailey v. State, 867 S.W.2d 42, 43 (Tex. Crim. App. 1993).

Count One of the indictment charged appellant with aggravated sexual assault. A person commits aggravated sexual assault Aif he intentionally and knowingly causes the penetration of the anus or female sexual organ of a child by any means and the victim is younger than 14 years of age.@ Tex. Pen. Code Ann. ' 22.021(a)(1)(B), (2)(B) (Vernon Supp. 2005). Because the charge did not include the element of the victim=s age in the application paragraph, the charge was erroneous. See Escobar v. State, 28 S.W.3d 767, 779 (Tex. App.BCorpus Christi 2000, pet ref=d). However, because appellant failed to object to the charge, we must determine if such error resulted in egregious harm. See Almanza, 686 S.W.2d at 171.

First, we look at the charge itself to determine harm. The abstract portion of the jury charge correctly stated the elements of aggravated sexual assault: A. . . a person commits the offense of Aggravated Sexual Assault if the person commits sexual assault of a child and the victim is younger than 14 years of age.@ Tex. Pen. Code Ann. ' 22.021(a)(1)(B), (2)(B) (Vernon Supp. 2005). Because the abstract portion included an instruction on the element of the victim=s age, we conclude the jury charge when viewed in its entirety informed the jury of the age element required for the commission of aggravated sexual assault. See Lane v. State, 957 S.W.2d 584, 587 (Tex. App.BDallas 1997, pet ref=d).

Next, we look at the state of the evidence. The age of the victim was not a contested issue at trial. Both the indictment and the charge state that the offense occurred on or about March 31, 1997. The trial testimony shows that the victim was born on December 24, 1986. The victim testified that she was approximately nine or ten years old when she had her first menstrual period, and her mother was out of town. She went to the appellant, her stepfather, for guidance. Appellant told her to pull her pants down and then stuck his finger in her vagina. Testimony of the outcry witness also indicated that the victim told her that appellant had touched her in the vaginal area from the time she was about three years old until she was about ten or eleven years old.

Finally, we look at the jury arguments. In its closing argument, the State set forth the elements required to convict appellant of aggravated sexual assault, including that the victim was under fourteen years of age. The State reviewed the evidence supporting each element, including the age of the victim. The State reiterated that the victim got her first period in 1997, when she was eleven years old; the victim testified that the incident happened when she was eleven years old; and all of the incidents occurred between 1990 and 1997, when the victim was between the ages of three and eleven.

Having considered the error in light of the charge itself, the state of the evidence, the argument of counsel, and any other relevant information revealed by the record of the trial as a whole, we conclude that the error did not cause appellant egregious harm. Appellant=s first issue is overruled.

In his second issue, appellant argues that this case should be remanded for a new sentencing hearing on Count One, because the judgment of conviction of aggravated sexual assault is void because the jury failed to make a finding on the essential element of the victim=s age. Appellant=s argument is based on the premise that the jury convicted appellant of sexual assault rather than aggravated sexual assault. However, as we concluded above, the error of omitting the element of the victim=s age in the jury charge does not affect the validity of the jury=s verdict of guilt of aggravated sexual assault. Therefore, punishment was properly assessed within the range of punishment for aggravated sexual assault. Appellant=s second issue is overruled.

B. Admission of Extraneous Offense

In his third and fourth issues, appellant contends the trial court erred in admitting testimony regarding appellant=s uncharged bad acts during the guilt/innocence phase of the trial because they constituted improper character evidence under Texas Rule of Evidence 404(b), and the testimony was irrelevant to the case.

We review a trial court's decision to admit evidence under rule 404(b) under an abuse of discretion standard. Prible v. State, 175 S.W.3d 724, 732 (Tex. Crim. App. 2005). A trial court abuses its discretion when its decision is so clearly wrong as to lie outside the zone within which reasonable persons might disagree. McDonald v. State, 179 S.W.3d 571, 576 (Tex. Crim. App. 2005).

Appellant asserts the trial court erred in allowing E.G. to testify that once, when she was sleeping over at appellant=s house with the victim, appellant pulled up her nightgown and touched her. He contends that E.G.=s testimony constituted improper character evidence under rule 404(b).

Under rule 404(b), extraneous offense evidence is inadmissable if it is only relevant to show character conformity. Tex. R. Evid. 404(b); see Montgomery v. State, 810 S.W.2d 372, 387-88 (Tex. Crim. App. 1990); Wolfberg v. State, 73 S.W.3d 441, 443 (Tex. App.BHouston [1st Dist.] 2002, pet. ref=d). However, extraneous offense evidence may be relevant and admissible to rebut a defensive theory. See Ransom v. State, 920 S.W.2d 288, 301 (Tex. Crim. App. 1994); Wolfberg, 73 S.W.3d at 443.

Appellant testified that he was never alone with the children; there were always other adults around the house. Therefore, he argues, there was no opportunity to sexually assault them. The State argued that E.G.=s testimony was relevant to show that appellant did, in fact, have the opportunity to commit the offense.

We conclude the trial court did not abuse its discretion when it allowed the State to present evidence of the extraneous offense of sexual assault against E.G. to rebut the theory of Alack of opportunity@ asserted by appellant. See Wolfberg, 73 S.W.3d at 443. Appellant=s third and fourth issues are overruled.[4]

C. Ineffective Assistance of Counsel

In his fifth, sixth, seventh, and eighth issues, appellant contends he received ineffective assistance of counsel during trial. Specifically, appellant contends that his trial counsel was ineffective because counsel failed to: (1) properly object to E.G.=s testimony as irrelevant; (2) properly object to E.G.=s testimony on the basis that the probative value of the testimony was substantially outweighed by the danger of unfair prejudice; (3) request a limiting instruction when the trial court admitted E.G.=s testimony; and (4) request a jury instruction on the extraneous offenses introduced at the guilt/innocence phase of the trial.

The standard of review for a claim of ineffective assistance of counsel is well established. See Strickland v. Washington, 466 U.S. 668, 687 (1984); Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999); Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994).

In the absence of affirmative evidence contained in the record, we presume that trial counsel=s actions were strategically motivated and that counsel=s conduct fell within the wide range of reasonable professional assistance. Strickland, 466 U.S. at 689; Thompson, 9 S.W.3d at 814; Jackson, 877 S.W.2d at 771. We will not conclude that the conduct was deficient unless the conduct was so outrageous that no competent attorney would have engaged in it. Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001).

The record in this case does not show trial counsel=s reasoning behind the challenged conduct. Because appellant=s complaint that he received ineffective assistance of trial counsel is not firmly founded in the record, and the record does not affirmatively demonstrate the alleged ineffectiveness, we cannot say that trial counsel=s performance failed to constitute reasonably effective assistance by falling below an objective standard of reasonableness.[5] Appellant=s fifth, sixth, seventh, and eighth issues are overruled.

The judgment of the trial court is affirmed.

FEDERICO G. HINOJOSA

Justice

Do not publish. See Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and filed

this the 29th day of June, 2006.

[1]See Tex. Pen. Code Ann. ' 22.021(a)(2)(B) (Vernon Supp. 2005)

[2]See Tex. Pen. Code Ann. ' 21.11(a)(1) (Vernon 2003).

[3] Even if we were to construe appellant=s argument as a challenge to the constitutionality of Malik, as an intermediate court we are bound to follow the decisions of the court of criminal appeals and have no authority to change the current standard of review. See Wiley v. State, 112 S.W.3d 173, 175 76 (Tex. App. Fort Worth 2003, pet. ref'd).

[4] In his brief, appellant also argues that E.G.=s testimony was subject to the balancing test contained in Texas Rule of Evidence 403. However, because appellant failed to object on rule 403 grounds at trial, this argument is waived. See Tex. R. App. P. 33.1.

[5] Appellant is not foreclosed from presenting his claim via collateral attack by virtue of an application for post conviction writ of habeas corpus. Ex parte Nailor, 149 S.W.3d 125, 130 31 (Tex. Crim. App. 2004).