Gomez, Sr., Alejandro Luna v. State ( 2000 )

NUMBER 13-98-079-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

___________________________________________________________________

ALEJANDRO LUNA GOMEZ, SR.

, Appellant,

v.

THE STATE OF TEXAS

, Appellee.

___________________________________________________________________

On appeal from the 24th District Court of De Witt County, Texas.

___________________________________________________________________

O P I N I O N

Before Chief Justice Seerden and Justices Dorsey and Yañez

Opinion by Justice Dorsey

This is an appeal of Gomez's second conviction for sexually assaulting his five-year-old stepdaughter. He was previously convicted of aggravated sexual assault and sentenced to seventy years confinement. In 1994, this court reversed and remanded the cause for a new trial because the State impermissibly amended the indictment to change it from charging sexual assault to charging aggravated sexual assault.

Gomez was re-indicted by a grand jury in January of 1997 for aggravated sexual assault.⁽¹⁾ He pleaded not guilty and proceeded to trial where he was convicted and sentenced to twenty-five years confinement.

By his first point of error, Gomez contends that the evidence was insufficient to support his conviction. Specifically, he contends that the State failed, as a matter of law, to produce any evidence that he caused the "penetration" of the minor he was convicted of sexually assaulting.

The court of criminal appeals has defined the term "penetration" in the context of aggravated sexual assault. It means a significant intrusion beyond mere external contact. Vernon v. State, 841 S.W.2d 407, 489 (Tex. Crim. App. 1992). Additionally, the penal code specifies that penetration caused by "any means" is within that definition. See Tex. Pen. Code Ann. § 22.021 (Vernon Supp. 2000).

The child victim testified at Gomez's trial that Gomez penetrated her with his finger. That is sufficient evidence to support the jury's finding. We overrule his first point of error.

By his second point of error, Gomez complains that the trial court erred in not requiring the State to dismiss two other indictments that were pending against him stemming from the same incident. While the State did dismiss the other two indictments prior to Gomez's retrial, he argues that the court erred in not requiring the State to elect the indictment it would proceed under until the day before trial.

This court does not have copies of the two indictments appellant alleges were pending, as they were filed under different cause numbers, and have since been dismissed. The record indicates that one of the indictments was the original indictment under which Gomez was tried. That indictment charged sexual assault. Apparently, another indictment was issued that alleged aggravated sexual assault by means of penetration. The present indictment alleged aggravated sexual assault by means of penetration and contact.

The record reveals that at the end of a lengthy discussion regarding pretrial matters, the court instructed the State to proceed under the present indictment, and dismiss the other two. The court clearly stated that either the State must dismiss them voluntarily or it would order their dismissal. Thus, Gomez was afforded the relief he sought. We overrule his second point of error.⁽²⁾

By his third point of error, Gomez argues that this prosecution was barred by double jeopardy. He contends that once his original conviction was reversed and remanded, the State was obligated to proceed under the original indictment that charged him with the lesser offense of sexual assault. Instead, the State re-indicted him for aggravated sexual assault and dismissed the original indictment after the remand. However, the court of criminal appeals has held that "the pendency of one indictment does not prevent the grand jury from returning subsequent indictments charging the same transaction." Whitehead v. State, 286 S.W.2d 947, 948 (Tex. Crim. App. 1956). We overrule Gomez's third point of error.

By his fourth point, Gomez contends that the indictment he was tried under was fatally defective because it was returned after the expiration of the statute of limitations for the crime alleged. The indictment was filed on May 23, 1997. The offense was alleged to have occurred on October 12, 1991. Gomez argues that the statute of limitations was five years.

The statute of limitations for aggravated sexual assault of a child is ten years from the child's 18th birthday. Tex. Code Crim. Proc. Ann. art. 12.01(5)(c)(Vernon 1998). The indictment was returned well before that time. We overrule Gomez's fourth point of error.

By his fifth point of error, Gomez contends that the trial court committed reversible error by allowing the State to ask improper questions during the voir dire of the venire panel. He contends that the prosecution impermissibly asked hypothetical questions based on the exact facts of his case that were "designed to bring out the prospective juror's view on the case and the facts about to be tried." See Atkins v. State, 951 S.W.2d 787, 788 (Tex. Crim. App. 1997).

The court of criminal appeals has held that the use of a hypothetical fact situation during voir dire is permissible if it is used to explain the application of the law, but is improper if used to inquire how a venireman would respond to particular circumstances as presented in a hypothetical question. Cuevas v. State, 742 S.W.2d 331, 336 n. 6 (Tex. Crim. App.1987). Hypothetical questions may not be used to commit the venire to particular set of facts. Atkins, 951 S.W.2d at 789.

However, Gomez failed to object to the voir dire questions that he now alleges were improper. The court of criminal appeals has specifically held that "failure to object to the court's instructions during voir dire waives error for appellate review." Butler v. State, 872 S.W.2d 227, 240 (Tex. Crim. App. 1994); see also Boyd v. State, 811 S.W.2d 105 (Tex. Crim. App. 1991); Tex. R. App. P. 33.3. Therefore, we hold Gomez has waived this issue for purposes of appeal, and overrule his point of error.

Next, Gomez contends that the trial court committed reversible error by reading back testimony to the jury after it retired for deliberations without first ascertaining whether there was a disagreement about a specific part of the testimony. Article 36.28 of the code of criminal procedure provides that "if the jury disagrees as to the statement of any witness they may, upon applying to the court, have read to them from the court reporter's notes that part of such witness testimony or the particular point in dispute, and no other. . . ." Tex. Code Crim. Proc. Ann. art. 36.28 (Vernon 1981). The court of criminal appeals has held that article 36.28 requires that the jurors must disagree as to the testimony of a witness before the testimony may be read back to them. DeGraff v. State, 962 S.W.2d 596, 598 (Tex. Crim. App.1998). Further, a mere request for testimony does not in itself reflect that there is dispute and is not a proper request under article 36.28. Id. Accordingly, a trial court abuses its discretion when it reads testimony to the jury without first determining if a disagreement exists. Moore v. State, 874 S.W.2d 671, 674 (Tex. Crim. App.1994). The manner in which the trial court determines whether there is a dispute among the jurors is left to its sound discretion. Robison v. State, 888 S.W.2d 473, 480 (Tex. Crim. App.1994).

However, once again, the defendant expressly waived any objection to the reading of the entire testimony of Alex Gomez and the child victim. Upon receiving the request from the jury, the prosecutor stated to the court:

Your Honor, the State would point out that Article 36.28 of the code of criminal procedure requires in a trial of a criminal case if the jury disagrees as to any statement of any witness, they may upon applying from the Court have read to them from the Court Reporter's notes that part of such witness' testimony or the particular point in dispute, and no other.

So, the State does not have any objection to them having the entire testimony read, but I would request that the Defendant make his position known on the record.

Gomez's attorney then stated:

Your Honor, it is my understanding the jury has requested the entire testimony of each of those witnesses, and we are not objecting to that entire testimony being read to the jury.

Accordingly, Gomez has waived his objection to the article 36.28 violation. See Tex. R. App. P. 33.3.

Gomez also complains that the trial court erred in re-reading the testimony of only the victim to the jury. The jury was called back in for the re-read and the testimony of the victim was read to them. After they heard that testimony, a juror asked the court if they might retire for a brief moment of deliberations. The court acquiesced. They came back from that meeting with a verdict, and never heard the re-read of Gomez's testimony.

Gomez argues that his waiver of objection to the article 36.28 violation was contingent upon the court's re-reading both the victim's and his testimony. However, he made no such objection to the trial court. See Tex. R. App. P. 33.3 (requiring timely objection to preserve error for appeal). We hold, therefore, that the previous waiver was unconditional. Accordingly, we overrule this point of error.

By his seventh point of error, Gomez contends that he received ineffective assistance of counsel. Gomez contends that his trial counsel's performance was deficient because counsel failed to properly preserve the record for appellate review. He argues that he was somehow harmed by his counsel's performance during pretrial argument. We hold that he has not met his burden of showing either ineffective assistance or prejudice to his case.

In order to prove an ineffective assistance of counsel claim, a defendant must establish that (1) counsel's performance fell below the standards of reasonable competency, and (2) there is a reasonable probability that the deficient performance prejudiced his defense thus depriving him of a fair trial. Strickland v. Washington, 466 U.S. 668, 687 (1984); Hernandez v. State, 726 S.W.2d 53 (Tex. Crim. App.1986).

The assessment of whether a defendant received effective assistance of counsel must be made according to the facts of each case. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). Any allegation of ineffectiveness must be firmly founded in the record. Id. Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim because, absent both showings, an appellate court cannot conclude the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. Id. Appellant bears the burden of proving by a preponderance of the evidence that counsel was ineffective. Id. We look to the totality of the representation and the particular circumstances of each case in evaluating the effectiveness of counsel. Id. This court must be highly deferential to trial counsel and employs a strong presumption that his conduct fell within the wide range of reasonable professional assistance. Strickland, 466 U.S. at 687.

Gomez has entirely failed to meet his burden of showing ineffective assistance. He has not pointed to one specific instance where his attorney's conduct fell below the standard of reasonably competent representation. We overrule Gomez's seventh point of error.

Finally, Gomez contends that he was the target of prosecutorial vindictiveness because the prosecution re-indicted him for a more serious crime after reversal and remand by the court of appeals. This argument is without merit. The facts of the case demonstrate that the prosecution's conduct was not out of the ordinary.

The State initially attempted to indict him for aggravated sexual assault. That indictment was determined to be defective, and the State attempted to amend it. Gomez was tried and convicted under the amended indictment. This court held that the amendment was impermissible, and reversed the conviction for a new trial. At that point, the State sought a new indictment for aggravated sexual assault. This was to be expected, and does not evidence any sort of retaliation on the part of the State for Gomez's exercise of his right to seek appellate review. We overrule his eighth point of error.⁽³⁾

The judgment of the trial court is AFFIRMED.

J. BONNER DORSEY,

Justice

Do not publish

.

Tex. R. App. P. 47.3(b).

Opinion delivered and filed

this 10th day of August, 2000.

1. See Tex. Pen. Code Ann. § 22.021(a)(2)(B) (Vernon Supp. 2000).

2. We also note that the appellant did not have a motion to dismiss on file at the time he made this argument to the court. He had filed a motion to quash the indictment on grounds that it violated the prohibition against double jeopardy, which the court denied. During the hearing on that motion, appellant also argued that the state impermissibly had three indictments pending against him for the same crime. We can only presume that appellant was granted the relief he requested, as there is no indication in the record that he ever filed such a motion to dismiss. Nevertheless, he styled this point of error, "The trial court erred in failing to grant my motion to dismiss."

3. Appellant, who filed a pro se brief, alleged twelve points of error in the section of his brief entitled "Statement of the Issues." However, he did not present argument or even address all of those points in the body of his brief. In our opinion, we have addressed the points of error he urged in the body of his brief.