Jose Efrain Vega v. State ( 2006 )

Opinion issued February 23, 2006                    

      In The    

Court of Appeals  

For The  

First District of Texas  

---

NO. 01-05-00358-CR

---

JOSE EFRAIN VEGA, Appellant

V.

THE STATE OF TEXAS, Appellee

---

On Appeal from the 208th District Court

Harris County, Texas

Trial Court Cause No. 974863

---

MEMORANDUM OPINION

          A jury found appellant, Jose Efrain Vega, guilty of aggravated sexual assault of a child. See Tex. Pen. Code Ann. § 22.021(a) (Vernon Supp. 2005). The trial court assessed appellant’s punishment at 18 years in prison. We address (1) whether appellant was denied effective assistance of counsel when trial counsel failed to challenge the hearsay testimony of three outcry witnesses and (2) whether the trial court erred by denying appellant the opportunity to question a State’s witness about her bias or interest. We affirm.

Factual BackgroundWhen D.A. was approximately six years old, appellant touched D.A.’s legs underneath her pajamas and “rubbed [his hand] against [her] private part.” Appellant then took off D.A.’s pants and had sex with her. D.A. began to cry, and appellant showed her a gun and threatened to harm her and her mother. D.A. remained silent because she was afraid that appellant would harm her mother. When D.A. was approximately nine years old, appellant pulled D.A.’s pants off and applied cream to her “private area” with his hand. D.A. did not report this incident either because she was afraid of appellant.  

          When she was nine years old, D.A. moved away from appellant and her mother to live with her aunt, Mary Hernandez, for about a year. When she was 11, D.A. moved again to live with her aunt, Bonita Garcia, at which time she told Garcia that she had been raped by Alex, her aunt Norma Castillo’s (“Norma”) boyfriend, not appellant. In December 2003, when D.A. was 13 years old, she told her mother, Dora Castillo (“Dora”), another aunt, Norma, and her grandmother, Esperanza Arredondo, that she had been sexually assaulted. She initially told them that “Alex ” had raped her. When Arredondo took D.A. into another room alone and instructed her to tell the truth, D.A. admitted that appellant had assaulted her.

            Prior to trial, the State filed a notice of intention to use a child-abuse victim’s hearsay statement. See Tex. Code Crim. Proc. Ann. art. 38.072 (Vernon 2005). The notice referenced three outcry witnesses: “Dora Castillo, Norma Castillo, and Lisa Holcomb.” At trial, Dora, Norma, and Arredondo testified regarding D.A.’s statement to them about appellant’s having sexually assaulted her.     Ineffective Assistance of Counsel

          In point of error one, appellant argues that he was denied effective assistance of counsel because his attorney failed to request an article 38.072 hearing and failed to object to the hearsay testimony of the three outcry witnesses. See id. The State contends that, because there was no motion-for-new-trial hearing to establish the reasons for trial counsel’s actions and because counsel’s strategy cannot be determined from the record, appellant has not rebutted the presumption that he received reasonable assistance of counsel. See Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). Moreover, the State argues that, even if trial counsel’s representation was deficient, appellant has not shown the result of the proceedings would have been different.

          A child-abuse victim’s statement to another is not inadmissible hearsay if the statement describes the alleged offense and the person to whom the statement is made is at least 18 years old and is the first person to whom the child made a statement about the offense. Tex. Code Crim. Proc. Ann. art. 38.072. Article 38.072 requires that (1) notice of the intent to offer the statement be given before trial; (2) the defendant be notified of the identity of the outcry witness and given a written summary of the outcry witness’s testimony; (3) the trial court find, in a hearing conducted outside the presence of the jury, that the statement is reliable based on the time, content, and circumstances of the statement; and (4) the child testify or be made available to testify. Id. § 2(b).  

          Both the United States and Texas Constitutions guarantee an accused the right to reasonably effective assistance of counsel. U.S. Const. amend. VI; Tex. Const. art. I, § 10; see also Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2063 (1984); Ex parte Gonzales, 945 S.W.2d 830, 835 (Tex. Crim. App. 1997). To prove ineffective assistance of counsel, an appellant must show that (1) defense counsel’s representation fell below an objective standard of reasonableness, based on prevailing professional norms, and (2) the result of the proceeding would have been different but for defense counsel’s deficient performance. Strickland, 466 U.S. at 688-92, 104 S. Ct. at 2064-67; see Thompson, 9 S.W.3d at 812. Appellant has the burden of proving his claim by a preponderance of the evidence. Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998). We apply a strong presumption that defense counsel was competent. Thompson, 9 S.W.3d at 813. It is presumed that defense counsel’s strategy was sound and that the representation was reasonable. Gamble v. State, 916 S.W.2d 92, 93 (Tex. App.—Houston [1st Dist.] 1996, no pet.). In assessing whether a defendant has overcome these presumptions, we are limited to the facts of the case. Thompson, 9 S.W.3d at 813.

          An appellant “making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment.” Strickland, 466 U.S. at 690, 104 S. Ct. at 2052. Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson, 9 S.W.3d at 813. We cannot speculate beyond the record provided. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994).

          The Court of Criminal Appeals of Texas has held that a motion for new trial asserting ineffective assistance of counsel is not required to preserve that claim. Robinson v. State, 16 S.W.3d 808, 809-10 (Tex. Crim. App. 2000). A timely filed appeal is a proper procedure for seeking relief regarding ineffective assistance of counsel. Id. A hearing on a motion for new trial is required only when the motion raises matters extrinsic to the record. Rivera v. State, 123 S.W.3d 21, 29 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d). When an appellant’s allegations of ineffective assistance of counsel are firmly founded and affirmatively demonstrated in the record, no new-trial or other evidentiary hearing is required. Id.; see McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996). Thus, “in the rare case” in which the record suffices “to prove that counsel’s performance was deficient” despite the record’s silence concerning counsel’s strategy, “an appellate court should obviously address the [ineffective-assistance] claim . . . .” Robinson, 16 S.W.3d at 813 n.7.   

          Appellant did not file a motion for a new trial, nor was a hearing held to determine trial counsel’s reasons for the complained-of omission. Appellant has thus failed to overcome the presumption that counsel could have acted pursuant to sound strategy. See Gibbs v. State, 7 S.W.3d 175, 179 (Tex. App.—Houston [1st Dist.] 1999, pet. ref’d). Appellant contends that this is one of those “rare cases” in which a record

silent as to counsel’s reasoning nonetheless reveals counsel’s deficiency. See Robinson, 16 S.W.3d at 813 n.7. We disagree.

          The record demonstrates two reasons that trial counsel may have chosen not to object to the testimony of Dora, Norma, and Arredondo, which testimony related the statement of D.A. that appellant had sexually assaulted her. The first reason is that trial counsel may have concluded that his attack on D.A.’s credibility through cross-examination allowed the State to introduce the statement of D.A. to Dora, Norma, and Arredondo to show a prior consistent statement. Such a statement is not considered hearsay under rule 801(e)(1)(B) of the Texas Rules of Evidence. See Tex. R. Evid. 801(e)(1)(B). It is not ineffective assistance of counsel to refrain from objecting to admissible evidence. See Flowers v. State, 124 S.W.3d 801, 804 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d) (holding that trial counsel was not ineffective for failing to object because, even if counsel had objected, trial court would not have erred in admitting testimony or evidence).

          The second reason is that trial counsel relied heavily on D.A.’s having initially told Dora, Norma, and Arredondo that it was Alex who had sexually assaulted her. Trial counsel’s strategy was to imply that Arredondo had convinced D.A. to say that it was appellant, rather than Alex, who had raped her. This strategy realized that D.A. had changed her statement from identifying Alex to identifying appellant as the person who had sexually assaulted her.   

          For example, the record reflects that appellant’s trial counsel asked Dora the following questions on cross-examination:  

[TRIAL COUNSEL]: You testified, ma’am, that your daughter, [D.A.], stated that it was Alex who had sexually assaulted her; correct?

[DORA]: Yes.

. . .

[TRIAL COUNSEL]: And you testified that she blamed Alex at first because he was not present and not part of the family.

[DORA]: Exactly.

[TRIAL COUNSEL]: Well, was [appellant] present?

[DORA]: No.

[TRIAL COUNSEL]: Is he part of the family?

[DORA]: My son has his blood, so I think so.

The record reflects that appellant’s counsel asked Norma the following questions:

[TRIAL COUNSEL]: When you went at [sic] your mother’s house—when you asked [D.A.], “Are you telling the truth” when she told you about Alex what did she say?

[NORMA]: She started crying.

[TRIAL COUNSEL]: So she didn’t respond to you at all? Yes or no?

[NORMA]: She didn’t respond to me. My mom grabbed her and took her to the room.

[TRIAL COUNSEL]: So before she could respond, your mother took her to the room; is that correct?

[NORMA]:Yes, ma’am.

[TRIAL COUNSEL]: Now, when she described to you what happened to her, didn’t —did she not tell you that when [appellant] allegedly raped her he would come into the room where she was reading a book and tried to slap her around a little bit? Did she tell you that?

[NORMA]: She told me that [appellant] slapped her when he was doing that. She told me [appellant] had a gun. She told me [appellant] covered her mouth. And she told me that, “It’s embarrassing for me to say this” how [appellant] was putting her to do that.

. . .

[TRIAL COUNSEL]: But you’re stating that she did lie on Alex [about having raped her]; is that correct?

[NORMA]: Yes.  

The record reflects that appellant’s counsel asked Arredondo the following questions on cross-examination:

[TRIAL COUNSEL]: Good. Would you describe [your relationship with D.A.] as being close?

[ARREDONDO]: Yes.  

[TRIAL COUNSEL]: Okay. And [Dora] never told you that anyone had raped her up until December 2003?

[ARREDONDO]: Yes.

. . .

[TRIAL COUNSEL]: You don’t want to believe it was Alex, do you?

[ARREDONDO]: It was not Alex.  

                    . . .

                    [TRIAL COUNSEL]: And you’ve decided that it wasn’t Alex?

[ARREDONDO]: It was not him.  

Under these circumstances, we cannot say that trial counsel’s failure to challenge the outcry statements could not have been a plausible trial strategy.   

          Accordingly, appellant has not overcome the strong presumption of reasonable professional assistance. See Mallett v. State, 65 S.W.3d 59, 62-63 (Tex. Crim. App. 2001).

          We overrule appellant’s point of error one.  

Witness Bias

          In point of error two, appellant argues that the trial court erred when it denied him the opportunity to question Arredondo about her bias or interest.

          On cross-examination, appellant’s counsel inquired:   

[APPELLANT]: Do you like Alex?

[STATE]: Objection to the relevance.

THE COURT: Sustained.

          To preserve a complaint that the trial court erroneously excluded evidence, the complaining party must bring forward a record indicating the nature of the evidence. Guidry v. State, 9 S.W.3d 133, 153 (Tex. Crim. App. 1999). Error in the exclusion of evidence may not be asserted on appeal unless the proponent perfected an offer of proof or a bill of exception. Id. Absent a showing of what such testimony would have been, or an offer of a statement concerning what the excluded evidence would have shown, nothing is preserved for appellate review. Id.  

          The record in this case does not indicate what the excluded testimony would have been. Appellant did not make or request the opportunity to make an offer of proof of his intended cross-examination of Arredondo. Therefore, appellant did not preserve error as to his second point of error, and we need not reach its merits. See Guidry, 9 S.W.3d at 153; see also Tex. R. App. P. 33.2; Tex. R. Evid. 103(a)(2).

            We overrule appellant’s point of error two.                                                      

Conclusion

          We affirm the judgment of the trial court.                                                                    

                                                             Tim Taft

                                                             Justice

Panel consists of Justices Taft, Higley, and Bland.

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