Euleses Nejandro Davila v. State ( 2006 )

IN THE

TENTH COURT OF APPEALS

 

No. 10-04-00291-CR

Euleses Nejandro Davila,

                                                                      Appellant

 v.

The State of Texas,

                                                                      Appellee

From the 272nd District Court

Brazos County, Texas

Trial Court No. 03-02135-CRF-272

MEMORANDUM  Opinion

      Davila appeals his convictions for two counts of indecency with a child by sexual contact.  See Tex. Penal Code Ann. § 21.11(a)(1), (c), (d) (Vernon 2003).  We affirm.

      Sufficiency of the evidence. In Davila’s first two issues, he contends that the evidence was factually insufficient.  The jury found Davila guilty in two counts, and he challenges the evidence of each count.  “In a factual-sufficiency review, we view all of the evidence in a neutral light, and we set aside the verdict only if the evidence is so weak that the verdict is clearly wrong and manifestly unjust, or the contrary evidence is so strong that the standard of proof beyond a reasonable doubt could not have been met.”  Prible v. State, 175 S.W.3d 724, 730-31 (Tex. Crim. App.), cert. denied, 126 S. Ct. 481 (2005); accord Zuniga v. State, 144 S.W.3d 477, 481 (Tex. Crim. App. 2004).  “A clearly wrong and unjust verdict occurs where the jury’s finding is ‘manifestly unjust,’ ‘shocks the conscience,’ or ‘clearly demonstrates bias.’”  Prible at 731 (quoting Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997)).  “While the court of appeals may disagree with the jury’s conclusions, it must also exercise appropriate deference in order to avoid substituting its judgment for that of the jury, particularly in matters of credibility.”  Drichas v. State, 175 S.W.3d 795, 799 (Tex. Crim. App. 2005); accord Clewis v. State, 922 S.W.2d 126, 133 (Tex. Crim. App. 1996).

      “A person commits” the offense of indecency with a child “if, with a child younger than 17 years and not the person’s spouse, . . . the person . . . engages in sexual contact with the child or causes the child to engage in sexual contact . . . .”  Tex. Penal Code Ann. § 21.11(a) (Vernon 2003). 

[S]exual contact means 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.

Tex. Penal Code Ann. § 21.11(c). 

      “[T]he jury is the exclusive judge of the facts” unless otherwise provided by law.  Tex. Code Crim. Proc. Ann. art. 36.13 (Vernon 1981).  “The jury, in all cases, is the exclusive judge of the facts proved, and of the weight to be given to the testimony,” unless otherwise provided by law.  Id. art. 38.04 (Vernon 1979).  “While [the] evidence may be in conflict, it is for the jury as trier of fact to resolve any conflicts and inconsistencies in the evidence.”  Turner v. State, 4 S.W.3d 74, 83 (Tex. App.—Waco 1999, no pet.); accord Schuessler v. State, 719 S.W.2d 320, 328 (Tex. Crim. App. 1986); e.g., Tran v. State, 167 S.W.3d 483, 491 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d); Dornbusch v. State, 156 S.W.3d 859, 872 (Tex. App.—Corpus Christi 2005, pet. ref’d).

      Count 2.  In Davila’s first issue, he contends that the evidence in the second count of the indictment is “so weak that the verdict is clearly wrong and manifestly unjust.”  (Br. at 29 (quoting Shack[el]ford v. State, No. 10-05-00034-CR, 2005 Tex. App. LEXIS 86[43][, at *2] (Tex. App.—Waco Oct[.] 19, 2005, no pet.[]) [(mem. op.)].)  The trial court’s charge instructed the jury to find Davila guilty in the second count if it found that “the defendant, EULESES DAVILA did intentionally or knowingly, with the intent to arouse and gratify the sexual desire of said defendant, engage in sexual contact by causing S.H., a child younger than 17 years and not the spouse of said EULESES DAVILA, to touch the genitals of EULESES DAVILA while on or near a beanbag.”  (II C.R. 151.)  Davila acknowledges that this instruction “mirrored the allegations contained in the indictment.”  (Br. at 24-25); see Gharbi v. State, 131 S.W.3d 481, 482 (Tex. Crim. App. 2003) (“hypothetically correct jury charge”); Malik v. State, 953 S.W.2d 234, 236-40 (Tex. Crim. App. 1997). 

      Davila points to discrepancies among S. H.’s outcry statement, her recorded statement, and her trial testimony.  For example, Davila contends that S. H. stated in her outcry that Davila, who was S. H.’s schoolteacher, did not allow her to defecate at school; but denied it in her recorded statement and her trial testimony. The State points to medical evidence of S. H.’s impacted bowel.  Davila also contends that in S. H.’s recorded statement and in her testimony on direct examination, she testified that Davila’s semen was “green,” but on cross-examination testified that it was “yellow.”  The State points out that in S. H.’s recorded statement she said that Davila’s semen was “green or something.”  Davila contends that S. H. stated in her outcry statement and her recorded statement that the offense in which Davila ejaculated took place near a bean bag, but that she testified at trial that it took place on a bed. Davila contends that a child forensic interviewer testified that S. H.’s recorded statement was “tainted” by coaching.  (Br. at 28 (emphasis in orig.)).  The State points to the investigator’s testimony that the interview did not sound tainted.  Davila also apparently contends that S. H. was biased, since her parents brought a civil suit against Davila.  The State points to S. H.’s outcry statement and recorded statement to the effect that Davila approached her when she was sleeping on a bean bag, put her hand on his penis, and ejaculated.  Viewing the evidence in a neutral light, we hold that the evidence is not so weak that the verdict is clearly wrong or manifestly unjust.  The evidence is factually sufficient.  We overrule Davila’s first issue. 

      Count 4.  In Davila’s second issue, he contends that the evidence in the fourth count of the indictment was “so weak that the verdict was clearly wrong and manifestly unjust.”  (Br. at 36 (purporting to quote Shackelford, 2005 Tex. App. LEXIS 86[43]).)  The trial court’s charge instructed the jury to find Davila guilty in the fourth count if it found that “the defendant, EULESES DAVILA did intentionally or knowingly, with the intent to arouse and gratify the sexual desire of said defendant, engage in sexual contact by touching the anus or any part of the genitals of S.H., a child younger than 17 years and not the spouse of said EULESES DAVILA.”  (II C.R. 151-52.)  Davila concedes that this instruction “appropriately tracked the indictment.”  (Br. at 30.)[1]  Davila assumes, without good reason, that this offense took place inside a closet.[2]  In accordance with that assumption, Davila contends that S. H.’s recorded statement conflicts with another alleged victim’s allegations concerning alleged offenses inside a closet.  Davila also contends that S. H. sometimes stated that she was clothed, and sometimes stated that Davila removed her clothes, when he touched her “bottom” and “pee-pee” with a flyswatter.  The State points to S. H.’s statements that Davila tickled her “heinie” or “bottom” and her “pee-pee” with a flyswatter.  Viewing the evidence in a neutral light, we hold that the evidence was not so weak that the verdict was clearly wrong or manifestly unjust.  The evidence was factually sufficient.  We overrule Davila’s second issue.

      Extraneous Offense Evidence.  In Davila’s third issue, he contends that the trial court erred in overruling Davila’s objection to certain evidence.  Davila complains of the following testimony on direct examination of a State’s witness:

      Q.   Did the defendant ever tell you why he was going to school at A&M?

      A.   He told me that he was on a football scholarship.

      Q.   How did that come up? Did you ask him or—

      A.   I don’t remember.  We just—I think I was just asking him why was he here and he told me he was going to A&M on a football scholarship.

      Q.   Did he tell you what position he played?

      A.   Kicker.

      Q.   Kicker or punter?

      A.   Whichever one kicks the ball.

      Q.   Okay.  And did you ask him how the season was going?

      A.   No, I didn’t.

      Q.   Did you ask him how spring training was going?

      A.   No, I didn’t.

      Q.   Did you ask him how he liked RC?

      A.   No.

      Q.   Did he ever offer that?

      A.   No.

      Q.   Do you know if that, in fact, was true or not?

      A.   No, I didn’t know.

      Q.   Did he say it to you in a boastful way?  Was he flirting with you?

      A.   No, he wasn’t.

      Q.   Did you have any reason to believe he wasn’t on a football scholarship at A&M?

      A.   No.

      Q.   Do you know if, in fact, he was; or do you just not know?

      A.   At the time I didn’t know.

      Q.   Do you know now?

      A.   Yes.

      Q.   Was he?

      A.   That he’s not on the football team.

(10 R.R. 231-33.)  Davila contends that the testimony constituted “improper impeachment of appellant’s character on a specific incident of misconduct.” (Br. at 36 (emphasis in orig.) (citing Tex. R. Evid. 404-405).) 

      The State argues that any error in the overruling of Davila’s objection to that evidence was cured.  The State points to Davila’s testimony on cross-examination: 

      Q.   You indicated when [Davila’s counsel] Bryan asked you about going and attending A&M, that was a lie.  Right?

      A.   Yes, sir.

      Q.   Why would you make that up?

      A.   Trying to impress the people I work with.

(12 R.R. 148-49.)  Davila did not object to that testimony.

As a prerequisite to presenting a complaint for appellate review, the record must show that:

      (1)  the complaint was made to the trial court by a timely request, objection, or motion . . . ; and

      (2) the trial court . . . ruled on the request, objection, or motion . . . .

Tex. R. App. P. 33.1(a).

[T]o preserve error in admitting evidence, a party must make a proper objection and get a ruling on that objection.  In addition, a party must object each time the inadmissible evidence is offered or obtain a running objection.  An error [if any] in the admission of evidence is cured where the same evidence comes in elsewhere without objection.

Lane v. State, 151 S.W.3d 188, 193 (Tex. Crim. App. 2004) (quoting Valle v. State, 109 S.W.3d 500, 509 (Tex. Crim. App. 2003)) (2nd alteration in Lane); accord Holmes v. State, 135 S.W.3d 178, 195 (Tex. App.—Waco 2004, no pet.); Sinclair v. State, No. 10-05-00216-CR, 2006 Tex. App. LEXIS 4277, at *5 (Tex. App.—Waco May 17, 2006, no pet. h.) (not designated for publication) (mem. op.); see Etheridge v. State, 903 S.W.2d 1, 14 (Tex. Crim. App. 1994).    

      Davila did not request a running objection to evidence concerning the lie, nor did he object to the evidence of it that the State elicited on cross-examination of Davila.  Davila did not preserve his complaint, or any error was cured.[3]  We overrule Davila’s third issue.

      Charge.  In Davila’s fourth issue, he contends that the trial court erred in its jury instruction on the fourth count.  “[I]n each felony case . . . , the judge shall . . . deliver to the jury . . . a written charge distinctly setting forth the law applicable to the case . . . .”  Tex. Code Crim. Proc. Ann. art. 36.14 (Vernon Supp. 2005).

Whenever it appears by the record in any criminal action that any requirement of Article[] 36.14 . . . has been disregarded, the judgment shall not be reversed unless the error appearing from the record was calculated to injure the rights of defendant, or unless it appears from the record that the defendant has not had a fair and impartial trial.

Id.  art. 36.19 (Vernon 1981).

      Our first duty in analyzing a jury-charge issue is to decide whether error exists.  Then, if we find error, we analyze that error for harm.  Preservation of charge error does not become an issue until we assess harm.  The degree of harm necessary for reversal depends on whether the appellant preserved the error by objection.  Under Almanza, jury charge error requires reversal when the defendant has properly objected to the charge and we find “some harm” to his rights.  When the defendant fails to object or states that he has no objection to the charge, we will not reverse for jury-charge error unless the record shows “egregious harm” to the defendant.

Ngo v. State, 175 S.W.3d 738, 744 (Tex. Crim. App. 2005) (internal footnotes omitted) (quoting Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) [(op. on reh’g)]); accord Penry v. State, 178 S.W.3d 782, 788 (Tex. Crim. App. 2005), cert. denied, 165 L. Ed. 2d 909 (2006). 

      Davila cites Francis v. Texas for the proposition that “by the use of the disjunctive charge, ‘anus or any part of the genitals’, in Count IV, it is impossible to ascertain whether the jury verdict was unanimous.”  (Br. at 46 [(quoting II C.R. 149, 152) (emphasis added by Davila)] (citing Francis v. State, 36 S.W.3d 121 (Tex. Crim. App. 2000)).)  Francis is distinguishable.  Cf. Francis, 36 S.W.3d 121.  Davila contends that in Francis “the State introduced evidence of four acts of indecency and elected to proceed on only two counts.” (Br. at 45.)  Rather, the trial court charged the jury on only one count.  Francis at 122.  The trial court instructed the jury that it might find the appellant guilty if it found that the appellant “engage[d] in sexual contact by touching the breast or the genitals.”  Id. at 124. 

The State introduced evidence of four separate incidents.  In two different incidents, the appellant touched the victim’s breasts.  In two separate incidents, the appellant touched the victim’s genitals.  There was never a single incident alleged in which the appellant touched both the breasts and the genitals of the victim.

Id. 

      Davila was indicted on four counts of indecency against S. H., the trial court charged the jury on all four counts, and the jury found him guilty on two counts, including the fourth. Unlike in Francis, here the State did allege a single incident against Davila in which he touched both S. H.’s genitals and anus with a flyswatter.

      The trial court did not err.  We overrule Davila’s fourth issue.

      Effective Assistance of Counsel.  In Davila’s fifth issue, he contends that if the Court holds that Davila’s trial counsel did not preserve Davila’s third issue then Davila was denied the effective assistance of counsel.  “In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence.”  U.S. Const. amend. VI.  “In Strickland v. Washington, 466 U.S. 668 (1984),” the Supreme Court “held that criminal defendants have a Sixth Amendment right to ‘reasonably effective’ legal assistance.”  Roe v. Flores-Ortega, 528 U.S. 470, 476 (2000) (quoting Strickland, 466 U.S. at 687).  “Ineffective assistance under Strickland is deficient performance by counsel resulting in prejudice, with performance being measured against an ‘objective standard of reasonableness,’ ‘under prevailing professional norms.’”  Rompilla v. Beard, 545 U.S. 374, ___, 125 S. Ct. 2456, 2462 (2005) (quoting Strickland at 688) (internal citation omitted).  “[C]ounsel is ‘strongly presumed’ to make decisions in the exercise of professional judgment.”  Yarborough v. Gentry, 540 U.S. 1, 8 (2003) (quoting Strickland at 690).  “That presumption has particular force where a petitioner bases his ineffective-assistance claim solely on the trial record, creating a situation in which a court ‘may have no way of knowing whether a seemingly unusual or misguided action by counsel had a sound strategic motive.’”  Id. (quoting Massaro v. United States, 538 U.S. 500, [505] (2003)).  “A Strickland claim must be ‘firmly founded in the record’ and ‘the record must affirmatively demonstrate’ the meritorious nature of the claim.”  Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005) (quoting Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999)). “Direct appeal is usually an inadequate vehicle for raising such a claim because the record is generally undeveloped.”  Goodspeed at 392; accord Thompson at 813-14.  “This is true with regard to the question of deficient performance—in which counsel’s conduct is reviewed with great deference, without the distorting effects of hindsight—where counsel’s reasons for failing to do something do not appear in the record.”  Goodspeed at 392 (internal citation omitted); accord Thompson at 813-14.  “[T]rial counsel should ordinarily be afforded an opportunity to explain his actions before being denounced as ineffective.”  Goodspeed at 392 (quoting Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003)).  “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. (quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001)). 

      Davila does not point to the reasons for counsel’s conduct in the record.  Davila does not demonstrate ineffective assistance.  We overrule Davila’s fifth issue.

      Conclusion.  Having overruled Davila’s issues, we affirm.

TOM GRAY

Chief Justice

Before Chief Justice Gray,

      Justice Vance, and

      Justice Reyna

Affirmed

Opinion delivered and filed August 2, 2006

Do not publish

[CR25]

---

[1]  Nonetheless, in Davila’s fourth issue, he contends that the instruction was erroneous.  But see Malik, 953 S.W.2d 234.

[2]  In the first count, in which the jury found Davila not guilty, the State alleged that Davila indecently touched S. H. “while in or near a closet.”  (I C.R. 35; see II id.149, 157.)  The jury also found Davila not guilty in the third and fifth counts.

[3]  In Davila’s argument on his fifth issue, he cites Rogers v. Texas for the proposition that an appellant “does not waive the error if he testifies in order to explain, rebut or meet otherwise inadmissible evidence.”  (Br. at 51 (citing Rogers v. State, 853 S.W.2d 29, 35 (Tex. Crim. App. 1993)).  Davila did not bring forward evidence in order to explain, rebut, or meet the State’s evidence of Davila’s lie.