Emilio Gaspar Faustino v. State of Texas ( 2002 )

                                                             11th Court of Appeals

                                                                  Eastland, Texas

                                                                        Opinion

Emilio Gaspar Faustino

Appellant

Vs.             No. 11-01-00118-CR  --  Appeal from Dallas County

State of Texas

Appellee

Emilio Gaspar Faustino entered an open plea of guilty to the offense of aggravated sexual assault of his 11-year-old stepdaughter.  The jury assessed his punishment at confinement in the Institutional Division of the Texas Department of Criminal Justice for life and assessed a fine of $10,000.  We affirm.

There is no challenge to the sufficiency of the evidence.  Appellant=s 11-year-old stepdaughter testified that appellant had been assaulting her vaginally and anally since she was 9 years old.  He had threatened to kill her and her mother if she told anyone.  The victim became pregnant as a result of appellant=s assaults.  

Appellant asserts ineffective assistance of counsel in his first point of error.  To prevail on a claim of ineffective assistance of counsel, an appellant must establish that his lawyer's performance fell below an objective standard of reasonableness and that there is a "reasonable probability" that the result of the proceeding would have been different but for counsel's deficient performance.  Strickland v. Washington, 466 U.S. 668, 693-94 (1984); see Mallett v. State, 65 S.W.3d 59, 62-63 (Tex.Cr.App.2001). A reasonable probability is a probability sufficient to undermine confidence in the outcome.  Hernandez v. State, 726 S.W.2d 53, 55 (Tex.Cr.App.1986). The purpose of this two-pronged test is to judge whether counsel's conduct so compromised the proper functioning of the adversarial process that the trial cannot be said to have produced a reliable result.  Thompson v. State, 9 S.W.3d 808, 812-13 (Tex.Cr.App.1999)(citing McFarland v. State, 845 S.W.2d 824, 843 (Tex.Cr.App.1992), cert. den=d, 508 U.S. 963 (1993)).

The review of defense counsel's representation is highly deferential and presumes that counsel's actions fell within a wide range of reasonable professional assistance. Tong v. State, 25 S.W.3d 707, 712 (Tex.Cr.App.2000), cert. den=d, 532 U.S. 1053 (2001).  When the record is silent on the motivations underlying counsel's tactical decisions, an appellant usually cannot overcome the strong presumption that counsel's conduct was reasonable.  See Thompson v. State, supra at 813.  In order to defeat  Strickland's presumption of reasonable professional assistance, "any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness."  Thompson v. State, supra at 814 (quoting McFarland v. State, 928 S.W.2d 482, 500 (Tex.Cr.App.1996), cert. den=d, 519 U.S. 1119 (1997).

Appellant contends that trial counsel should not have permitted a particular juror to serve on the jury.   The juror in question stated during voir dire examination that she had been the victim of sexual assault.  The juror further stated that she would be able to evaluate the evidence fairly.  Appellant=s trial counsel neither challenged the juror for cause nor exercised a peremptory strike to remove her from the jury. The appellate record is silent regarding trial counsel=s motivations and does not establish that the outcome would have been different had the juror in question not served on the jury.  Appellant=s first point of error is overruled.

Appellant argues in his second point of error that the trial court failed to comply with TEX. CODE CRIM. PRO. ANN. art. 42.07 (Vernon Supp. 2002) prior to pronouncing sentence which provides that, A[b]efore pronouncing sentence, the defendant shall be asked whether he has anything to say why the sentence should not be pronounced against him.@ Article 42.07 further specifies the only reasons which preclude the pronouncement of sentence.  Appellant did not object to the trial court=s omission.  Furthermore, he has not cited any of the reasons listed in Article 42.07.   Appellant is not entitled to a remand of these proceedings.   Hernandez v. State, 628 S.W.2d 145, 147 (Tex.App. B Beaumont 1982, no pet=n); see Tenon v. State, 563 S.W.2d 622, 624 (Tex.Cr.App.1978).  Appellant=s second point of error is overruled. 

The judgment of the trial court is affirmed.

JIM R. WRIGHT

August 15, 2002                                                                       JUSTICE

Do not publish.  See TEX.R.APP.P. 47.3(b).

Panel consists of: Arnot, C.J., and

Wright, J., and McCall, J.