Charles Anthony Cueva Ii v. State ( 2011 )

NUMBER 13-09-00195-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
CHARLES ANTHONY CUEVA II, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 347th District Court
of Nueces County, Texas.
OPINION
Before Justices Rodriguez, Benavides, and Vela
Opinion by Justice Rodriguez
Appellant Charles Anthony Cueva II challenges his conviction for one count of
indecency with a child and two counts of sexual assault of a child. See TEX. PENAL
CODE ANN. ' 21.11(a) (West Supp. 2010),1 ' 22.021(a)(1)(B) (West Supp. 2010). By
four issues, Cueva argues that: (1) the jury charge on one count of sexual assault
allowed for his conviction on a less than unanimous verdict; (2) the punishment charge
contained an erroneous instruction regarding the applicability of good conduct time to
his potential parole calculation; and (3-4) he received ineffective assistance of counsel.
We affirm.
I. BACKGROUND
Indicted on eleven counts, Cueva pleaded not guilty to six counts of aggravated
sexual assault and one count of indecency with a child by contact. The State
abandoned the remaining four counts before the trial began. A jury convicted Cueva
of two counts of aggravated sexual assault and assessed punishment at seventy years
in prison and a $10,000 fine.2 See TEX. PENAL CODE ANN. § 22.021(e) (identifying
aggravated sexual assault as a first-degree felony), § 12.32 (West Supp. 2010)
(providing for first-degree felony punishment as imprisonment "for life or for any term of
not more than 99 years or less than 5 years" and "a fine not to exceed $10,000"). 3 It
1
Cueva was indicted for indecency with a child under an earlier version of section 21.11(a). In
2009, amendments were made to this section removing from subsection (a) the words "and not the
person's spouse" and adding the words "of age" in their place. See Act of May 18, 2009, 81st Leg.,
R.S., ch. 260, ' 1, 2009 TEX. GEN. LAWS 710 (current version at TEX. PENAL CODE ANN. ' 21.11(a) (West
Supp. 2010)). Because the relevant portions of the prior and current statutes do not differ materially,
we will refer to the current version of this section throughout this opinion.
2
The jury acquitted Cueva on two counts of aggravated sexual assault and could not reach a
verdict on the remaining two counts. The trial court declared a mistrial on those counts, and the State
dismissed them.
3
The earlier version of section 22.021(e) also applies in this case. When amended in 2007, no
changes were made to subsection (e), which identifies the offense as a first degree felony. See Acts
2007, 80th Leg., ch. 593, ' 1.18, eff. Sept. 1, 2007 (current version at TEX. PENAL CODE ANN. ' 22.021(e)
(West Supp. 2010)). Therefore, throughout the opinion, we will refer to the current version of this
provision. However, subsection (f), which provides that "[t]he minimum term of imprisonment for an
2
also convicted Cueva of the one count of indecency with a child and assessed
punishment at fifteen years and a $10,000 fine. See id. ' 21.11(d) (setting out that
indecency with a child under subsection (a)(1) is a second-degree felony), § 12.33
(West Supp. 2010) (allowing for second-degree felony punishment as imprisonment
"for any term of not more than 20 years or less than 2 years" and "a fine not to exceed
$10,000"). The trial court ordered the sentences to run concurrently. Cueva filed a
motion for new trial raising, among other issues, ineffective assistance of counsel
claims. After hearing Cueva's motion for new trial, the trial court denied the motion
and later issued extensive findings. This appeal followed.
II. JURY CHARGE ISSUES
In his first two issues, Cueva complains of charge error. By his first issue,
Cueva argues that the guilt-innocence jury charge allowed for his conviction for
aggravated sexual assault on a less than unanimous verdict. By his second issue,
Cueva argues that the jury charge at the punishment stage contained an erroneous
instruction regarding the applicability of good conduct time to his potential parole
calculation.
offense [of the first degree] under this section is increased to 25 years if … the victim is younger than six
years of age at the time of the offense is committed," was also added as part of the 2007 amendment.
See id. Although subsection (f) did not take effect until September 1, 2007 and does not apply in this
case, we note this change because, as part of his ineffective assistance of counsel issue, Cueva
complains that his counsel should have challenged the State's punishment-stage argument that the
Legislature changed the law after Cueva committed the offenses to eliminate probation and increase the
minimum sentence to twenty-five years and that Cueva benefited by committing the offenses before the
law changed. In addition, earlier versions of sections of 12.32 and 12.33 apply, but because the
relevant portions of the prior and current law do not differ materially, we will refer to the current version of
these sections throughout this opinion. See Acts 2009, 81st Leg., ch. 87 (current version at TEX. PENAL
CODE ANN. '' 12.32, 12.33 (West Supp. 2010) (amending each section to remove from subsection (a)
the words "institutional division" and adding the words "Texas Department of Criminal Justice" in their
place).
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A. STANDARD OF REVIEW
In analyzing a jury charge issue, our initial inquiry is whether error exists in the
charge submitted to the jury. Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005)
(en banc). If error is found, the degree of harm necessary for reversal depends on
whether the appellant preserved the error by objection. Id. If the defendant properly
objected to the erroneous jury charge, reversal is required if we find "some harm" to the
defendant's rights. Id. Here, Cueva concedes that he did not object at trial to either jury
charge issue he raises on appeal, so we may only reverse if the record shows egregious
harm. See id. at 743-44.
Egregious harm is a difficult standard that is determined on a case-by-case basis.
Ellison v. State, 86 S.W.3d 226, 227 (Tex. Crim. App. 2002) (en banc); Hutch v. State,
922 S.W.2d 166, 171 (Tex. Crim. App. 1996) (en banc); see Igo v. State, 210 S.W.3d 645,
647 (Tex. Crim. App. 2006) (applying egregious harm analysis to erroneous parole and
good conduct instructions). To determine whether a defendant suffered egregious
harm, we assess the degree of harm in light of (1) the entire jury charge, (2) the state of
the evidence, including contested issues, (3) the arguments of counsel, and (4) any other
relevant information in the record. Warner v. State, 245 S.W.3d 458, 461 (Tex. Crim.
App. 2008); see Almanza v. State, 686 S.W.2d 157, 172 (Tex. Crim. App. 1985) (op. on
reh'g). Errors that result in egregious harm are those that affect "the very basis of the
case," "deprive the defendant of a valuable right," or "vitally affect a defensive theory."
Ngo, 175 S.W.3d at 750; Hutch, 922 S.W.2d at 171 (citing Almanza, 686 S.W.2d at 172).
4
B. UNANIMITY OF THE VERDICT ON COUNT 4
1. Applicable Law
The Texas Constitution requires a unanimous verdict in felony criminal cases.
TEX. CONST. art. V, ' 13; see TEX. CODE CRIM. PROC. ANN. art. 36.29(a) (West Supp.
2010). A unanimous verdict is more than a mere agreement on a violation of a statute; it
ensures that the jury agrees on the factual elements underlying an offense. Francis v.
State, 36 S.W.3d 121, 125 (Tex. Crim. App. 2000) (op. on reh'g) (en banc). Generally,
instructing a jury on alternative theories of committing the same offense does not violate
the unanimity requirement. Martinez v. State, 129 S.W.3d 101, 103 (Tex. Crim. App.
2004). If a defendant is charged with multiple offenses, however, the trial court must
instruct the jury that it cannot return a guilty verdict unless it unanimously agrees upon
which offense the defendant committed. Gonzalez Soto v. State, 267 S.W.3d 327, 335
(Tex. App.—Corpus Christi 2008, no pet.) (citing Ngo, 175 S.W.3d at 744).
We determine exactly what a jury must be unanimous about by examining the
legislative intent of the applicable statute. Id. (citations omitted). The statute at issue
here is section 22.021 of the penal code, which provides, in relevant part, that a
defendant commits an offense if he intentionally or knowingly:
(i) causes the penetration of the anus or sexual organ of a child by any
means;
(ii) causes the penetration of the mouth of a child by the sexual organ of
the actor;
(iii) causes the sexual organ of a child to contact or penetrate the mouth,
anus, or sexual organ of another person, including the actor;
(iv) causes the anus of a child to contact the mouth, anus, or sexual
organ of another person, including the actor; or
5
(v) causes the mouth of a child to contact the anus or sexual organ of
another person, including the actor; and
the victim is younger than fourteen years of age. TEX. PENAL CODE ANN. '
22.021(a)(1)(B), (2)(B). The Texas Court of Criminal Appeals has ruled that section
22.021 is a conduct-oriented offense in which the Legislature criminalized specific acts of
conduct of several different types. Vick v. State, 991 S.W.2d 830, 832 (Tex. Crim. App.
1999). In other words, each of the above separately-described acts constitutes a
separate statutory offense. Id. at 833. For example, an allegation that a defendant
caused a child's sexual organ to contact his mouth is a separate and distinct offense from
an allegation that the defendant penetrated the child's sexual organ with his sexual organ.
See id. Likewise, touching a child's breast and touching a child's genitals are separate
offenses. See Francis, 36 S.W.3d at 124.
For our purposes, however, there is one notable exception to Vick's general
rule—the exception for subsumed conduct. See Patterson v. State, 152 S.W.3d 88, 92
(Tex. Crim. App. 2004) (en banc); Valdez v. State, 211 S.W.3d 395, 400 (Tex.
App.—Eastland 2006, no pet.); Hendrix v. State, 150 S.W.3d 839, 848 (Tex.
App.—Houston [14th Dist.] 2004, pet. ref'd). It is true that section 22.021 identifies
different types of conduct that constitute separate offenses, even if the different acts
occur in the same transaction. Valdez, 211 S.W.3d at 400; see Tyson v. State, 172
S.W.3d 172, 178 (Tex. App.—Fort Worth 2005, pet. ref'd). There are some cases,
though, in which one of the acts would necessarily be subsumed by another, such as
contact and penetration. Valdez, 211 S.W.3d at 400; see Gonzalez Soto, 267 S.W.3d at
339. In that event, what would appear under the charge to be two acts—contact and
6
penetration—is, essentially, one act for purposes of determining unanimity, and as such,
the defendant's right to unanimity in his verdict is not violated because every juror who
believed that the defendant penetrated the alleged victim "necessarily believed that the
antecedent contact had occurred." Valdez, 211 S.W.3d at 400; see Hendrix, 150
S.W.3d at 848; see also Patterson, 152 S.W.3d at 92 (holding that penile contact with the
alleged victim's mouth, genitals, or anus in the course of penile penetration is subsumed
within the penetration offense).
2. Discussion
In his first issue, Cueva argues that the jury charge on Count 4 was erroneous
because the jury could have found him guilty of aggravated sexual assault without
unanimously agreeing that Cueva either contacted or penetrated A.G.'s anus. We
disagree.
In Count 4, the jury was charged as follows:
Now if you find from the evidence beyond a reasonable doubt that
[Cueva], on or about August 5, 2007, in Nueces County, Texas, did then
and there intentionally or knowingly cause his sexual organ to contact or
penetrate the anus of [A.G.], and that [A.G] was then younger than 14 years
of age and not the spouse of [Cueva], then you will find [Cueva] guilty of
Count 4: Aggravated Sexual Assault Of A Child.
Unless you so find from the evidence beyond a reasonable doubt, or
if you have a reasonable doubt thereof, you will find [Cueva] not guilty of
Count 4: Aggravated Sexual Assault Of A Child.
The allegation that Cueva caused his sexual organ to contact A.G.'s anus is
subsumed within the allegation that he penetrated A.G.'s anus with his sexual organ.
Every juror who believed that Cueva penetrated A.G.'s anus necessarily believed that he
contacted it. Unlike the cases in which the alleged conduct was contact or penetration of
7
separate body parts, here, Cueva could only be convicted under Count 4 if the jury
determined that he assaulted A.G.'s anus. In other words, the jury could not divide over
whether Cueva assaulted one body part or another but, rather, necessarily had to agree
that Cueva contacted or penetrated A.G.'s anus to return a guilty verdict.
Cueva argues that because A.G. testified to multiple instances of contact and
penetration, the penetration-subsumes-contact exception does not apply to the facts of
this case. In support of his argument, Cueva cites the following three cases: Gonzalez
Soto, 267 S.W.3d at 339; Martinez v. State, 212 S.W.3d 411, 419-20 (Tex. App.—Austin
2006, pet. ref'd); and Stewart v. State, No. 14-08-00625-CR, 2009 Tex. App. LEXIS 2085,
at *7 (Tex. App.—Houston [14th Dist.] May 5, 2009, no pet.) (mem. op., not designated for
publication). These cases are, however, distinguishable from the present case.
In Gonzalez Soto, the jury charge contained one count of aggravated sexual
assault of a child and instructed the jury to convict Gonzalez Soto of the offense if he
"intentionally or knowingly . . . cause[d] his sexual organ to contact the mouth" of the
complainant or "intentionally or knowingly cause[d] his sexual organ to penetrate the
mouth" of the complainant or "intentionally or knowingly cause[d] his finger to penetrate
the sexual organ" of the complainant. 267 S.W.3d at 336. At trial, the complainant
"testified that there were two separate incidents in which appellant caused his penis to
penetrate her mouthCone in her mother's bedroom and a second incident in her
bedroom." Id. at 339.
In Martinez, the jury charge, again, contained only one count of aggravated sexual
assault of a child and instructed the jury to convict Martinez of the offense if he "knowingly
and intentionally . . . cause[d] the penetration of the anus of [the complainant] . . . ,
8
cause[d] the anus of [the complainant] . . . to contact the sexual organ" of Martinez. 212
S.W.3d at 415. The aggravated sexual assault count did not include the word "and" or
"or" in between the "penetration" phrase and "contact" phrase. Id. At trial, the
complainant "testified that the abuse happened on more than one occasion." Id. at 414.
In Stewart, the jury charge also contained one count of aggravated sexual assault
of a child and allowed conviction for the offense if "on or about the 2nd day of January,
2005," the appellant "intentionally or knowingly cause[d] the contact or penetration of the
anus or female sexual organ of [the complainant] . . . by [Stewart]'s sexual organ . . . ."
2009 Tex. App. LEXIS 2085, at *8-9. At trial, the complainant testified that the defendant
"touched his private parts to her private parts on three occasions in January 2005." Id. at
*2.
Here, the jury was instructed in seven separate counts regarding different alleged
offenses on different dates. The only detailed testimony offered by A.G. concerning
contact or penetration of her anus was the incident on August 5, 2007, in which A.G.'s
mother walked in on Cueva in a compromising position with A.G. We acknowledge that
A.G. testified that Cueva touched her with his "private" on her "front" and "back" "more
than one time." A.G.'s mother also testified that A.G. told her "it had happened more
than once. She did not specify exactly when. She just said whenever I would shower or
leave." Carol McLaughlin, the Sexual Assault Nurse Examiner (S.A.N.E.), testified
similarly, stating that A.G. told her that Cueva "does this every time when my mom
leaves."
However, unlike Gonzalez Soto, Martinez and Stewart, in which the complainants
testified clearly about multiple incidents yet the jury charges contained only one count of
9
aggravated sexual assault, the jury at Cueva's trial was charged with multiple counts of
aggravated sexual assault on multiple dates and A.G.'s vague recollections that Cueva
had touched her on more than one occasion did not create a danger that the jury would
confuse the specific testimony regarding the incident on August 5, 2007Cthe incident
charged in Count 4Cwith the unspecified instances A.G. alluded to in her comment that
Cueva had touched her "more than one time." Gonzalez Soto, Martinez, and Stewart
are, therefore, inapplicable to the facts of this case, and we are not persuaded by Cueva's
argument that the penetration-subsumes-contact exception does not apply to Count 4.
Based on the foregoing, we conclude that no error existed that violated Cueva’s
right to unanimity in his verdict in Count 4 of the jury charge. See Ngo, 175 S.W.3d at
743-44. Having found no error, we need not address harm. See id. at 743. Cueva's
first issue is overruled.
C. GOOD CONDUCT TIME AND PAROLE CHARGE INSTRUCTION
By his second issue, Cueva contends, and the State agrees, that the trial court's
punishment charge improperly instructed the jury that good conduct time would be added
to actual time served to determine when Cueva would be eligible for parole. Given that
Cueva did not object to this portion of the punishment charge, the question for this Court
is whether Cueva was egregiously harmed by this error. See id. at 743-44.
1. Applicable Law
For certain offenses, including those for which Cueva was convicted, article 37.07,
section 4(a) of the code of criminal procedure requires that the following parole law
instruction be included in the punishment charge:
10
Under the law applicable in this case, the defendant, if sentenced to
a term of imprisonment, may earn time off the period of incarceration
imposed through the award of good conduct time. Prison authorities may
award good conduct time to a prisoner who exhibits good behavior,
diligence in carrying out prison work assignments, and attempts at
rehabilitation. If a prisoner engages in misconduct, prison authorities may
also take away all or part of any good conduct time earned by the prisoner.
It is also possible that the length of time for which the defendant will
be imprisoned might be reduced by the award of parole.
Under the law applicable in this case, if the defendant is sentenced
to a term of imprisonment, he will not become eligible for parole until the
actual time served equals one-half of the sentence imposed or 30 years,
whichever is less, without consideration of any good conduct time he may
earn. If the defendant is sentenced to a term of less than four years, he
must serve at least two years before he is eligible for parole. Eligibility for
parole does not guarantee that parole will be granted.
It cannot accurately be predicted how the parole law and good
conduct time might be applied to this defendant if he is sentenced to a term
of imprisonment, because the application of these laws will depend on
decisions made by prison and parole authorities.
You may consider the existence of the parole law and good conduct
time. However, you are not to consider the extent to which good conduct
time may be awarded to or forfeited by this particular defendant. You are
not to consider the manner in which the parole law may be applied to this
particular defendant.
TEX. CODE. CRIM. PROC. ANN. art. 37.07, ' 4(a) (West Supp. 2010) (emphasis added); see
id. at art. 42.12, ' 3g(a)(1) (West Supp. 2010).
2. Discussion
While the mandatory parole instruction was given in the punishment jury charge,
the trial court erred when it included the following italicized language in the third
paragraph of its parole instruction:
Under the law applicable in this case, if the defendant is sentenced
to a term of imprisonment he will not become eligible for parole until the
actual time served plus any good conduct time earned equals one-half of
11
the sentence imposed or 30 years, whichever is less. Eligibility for parole
does not guarantee that parole will be granted.
(Emphasis added.) Cueva argues that, by this error, the trial court essentially instructed
the jury that he would become eligible for parole much earlier than he actually would be
under the correct law. Cueva asserts that the jury responded to this erroneous
instruction by imposing extremely lengthy sentences that were "especially
harsh"—seventy years for each count of aggravated sexual assault and fifteen years for
indecency with a child. He argues that "[t]he trial court's gross misstatement of the law
misled the jury and adversely affected how it viewed parole and good conduct time, which
the charge plainly authorized the jury to consider." Cueva contends that "the erroneous
parole instruction affected the very basis of the sentences and caused egregious harm."
We disagree.
The court of criminal appeals has refused to find that a similar error of this nature
was egregious error. See Igo, 210 S.W.3d at 647. In Igo, the punishment charge
informed the jury that Igo "would not become eligible for parole until the actual time
served, plus good time, equaled one-fourth of the sentence imposed," when it should
have been instructed that Igo "would not become eligible for parole until the actual time
served, without considering good time, equaled one-half of the sentence imposed." Id.
at 646. Concluding that the error resulted in no egregious harm, the Igo Court reasoned
as follows:
Although appellant did receive the maximum sentence, a number of
other factors mitigate against a finding of egregious harm. First, the parole
instruction contained the standard curative language admonishing the jury
not to consider the extent to which the parole law might be applied to the
defendant. Second, parole was not mentioned by either counsel during
12
argument on punishment. And finally, the evidence relating to punishment
was exceptionally strong.
Id. at 647; see Ross v. State, 133 S.W.3d 618, 623 (Tex. Crim. App. 2004) (finding a
similar error to be harmless, so long as there was no reasonable probability that the jury
was misled into believing that if the defendant received a life sentence he might become
eligible for parole in less than forty years through the award of good conduct time or that
he was certain to be released after he became eligible for parole); Stewart v. State, 293
S.W.3d 853, 855-62 (Tex. App.—Texarkana 2009, pet. ref'd) (being guided by the
analysis provided in Igo, the Texarkana Court concluded that a substantially similar
punishment charge error was not egregious); Warner, 245 S.W.3d at 461 (explaining that
egregious harm is assessed in light of the entire jury charge, the state of the evidence, the
arguments of counsel, and any other relevant information in the record).
In this case, Cueva was sentenced to a substantial, but not the maximum,
sentence on the two counts of aggravated sexual assault. See TEX. PENAL CODE ANN. §§
12.31, 22.021(e). The seventy-year sentences were to run concurrently with the
fifteen-year sentence assessed for his indecency-with-a-child conviction. Moreover, the
instruction in question effectively told the jury that its sentence would have an effect on
when Cueva became eligible for parole if that sentence was sixty years or less, but that,
for sentences over sixty years, a thirty-year term would automatically apply. Because
the two significantly longer sentences in this case were for seventy years each, they were
outside the range within which this section applied. Therefore, there was no
parole-based incentive to lengthen the sentences beyond sixty years, and it is reasonable
to conclude that the jury chose seventy-year sentences for other reasons.
13
In addition, the jury charge contained the standard curative instruction which
consisted of a total of five paragraphs, only one of which contained an error. See Igo,
210 S.W.3d at 647. While the charge erroneously instructed the jury concerning when
Cueva might become eligible to be considered for parole, it did inform the jurors, in
accordance with the statute, that they were not to consider the manner in which the parole
law may be applied to Cueva. Assuming the jury followed this instruction, see Gamboa
v. State, 296 S.W.3d 574, 580 (Tex. Crim. App. 2009), we conclude, as did the Beaumont
Court in Stewart v. State, that "[t]his factor, alone, does not dictate a finding of egregious
harm." 293 S.W.3d at 857; see Igo, 210 S.W.3d at 647.
Furthermore, neither parole nor good conduct time was mentioned during
punishment arguments. This suggests that the issue of the parole law was not central to
the punishment stage of the case. See Igo, 210 S.W.3d at 647; Stewart, 293 S.W.3d at
859.
Finally, we assess harm based, in part, on the state of the evidence. See Warner,
245 S.W.3d at 461; Stewart, 293 S.W.3d at 857. The State's punishment evidence set
out a number of undesirable changes noted in A.G.'s behavior following Cueva's actions.
The evidence also highlighted conditions for probation and the unlikelihood that Cueva,
who was described as an opportunistic and impulsive person, would successfully
complete any probation period. And Cueva had been found guilty of repeatedly sexually
assaulting and fondling A.G., a five-year-old girl, who was in the vulnerable position of
becoming his step-daughter. The above evidence, as well as the "visceral nature of the
offense itself[,] offer sufficient support to explain the jury's assessment of punishment
without suggesting harm from the charge." Stewart, 293 S.W.3d at 858.
14
Under the stringent standards necessary to show egregious harm, see Ellison, 86
S.W.3d at 227; Hutch, 922 S.W.2d at 171, we conclude that this error did not affect the
very basis of his sentences, as urged by Cueva. See Ngo, 175 S.W.3d at 750; Hutch,
922 S.W.2d at 171. Egregious harm has not been shown. Cueva's second issue is
overruled.
III. INEFFECTIVE ASSISTANCE OF COUNSEL
By his third issue, Cueva complains that he received ineffective assistance of
counsel during the guilt-innocence stage and, by his fourth issue, that he received
ineffective assistance during the punishment stage. By more than twenty-five
sub-issues, Cueva asserts that he was denied effective assistance of counsel for failing to
investigate, failing to admit evidence, eliciting or failing to object to testimony, failing to
object to arguments made by the prosecutor, making improper jury arguments, and failing
to object to the jury charges.
The trial court imposed sentence against Cueva on March 12, 2009 and signed the
judgment of conviction on March 25, 2009. Cueva timely filed a motion for new trial on
April 13, 2009, bringing a number of ineffective-assistance-of-counsel claims. See TEX.
R. APP. P. 21.8 (explaining that a defendant may file a motion for new trial no later than 30
days after the date the trial court imposes or suspends sentence in open court). Cueva's
motion was heard on May 14, 15, and 21, 2009, at which time Cueva's trial counsel
testified and the trial court admitted, as exhibits, the psychological evaluation, curriculum
vitae, and supplemental affidavit of defense expert, Paul Hamilton, Ph.D., and the
15
psychiatric evaluation of the State's expert, Joel Kutnick, M.D.4 Cueva asserted, over
the State's objection, additional complaints of ineffective assistance for the first time at the
hearing. The trial court denied the motion for new trial by written order on May 26, 2009,
the seventy-fifth day after Cueva's sentence was imposed in open court. See id. ("The
court must rule on a motion for new trial within 75 days after imposing or suspending
sentence in open court."). Seven days later, on June 1, 2009, Cueva requested findings
of fact. Cueva appealed from the judgment. On appeal, Cueva included complaints of
ineffective assistance of counsel made for the first time on appeal.
On July 1, 2009, the trial court signed and filed its findings. The trial court
summarized its findings as follows in finding of fact 4 (guilt-innocence stage) and finding
of fact 44 (punishment stage):
The Court finds that, with regard to each of the claims individually,
and as a whole, Cueva has failed to prove by a preponderance of the
evidence either that [counsel's] performance was deficient or outside the
range of competence demanded of attorneys in criminal cases, or that it is
reasonably probable that the alleged deficiencies, individually or together,
prejudiced his defense to the extent that, but for the supposed deficiencies,
Cueva would not have been found guilty at trial or the result of the
proceeding would have been different.
The trial court filed sixty-one additional findings of fact, specific as to Cueva's
ineffective-assistance-of-counsel claims.
A. Trial Court's Findings
As a threshold issue, the State asserts that we should not consider the trial court's
findings because the trial court did not make its findings when it ruled on Cueva's motion
4
The defense rested on May 15, 2009. On May 21, 2009, after Dr. Kutnick's affidavit was formally
admitted, without objection, the State rested, and each side presented closing argument.
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for new trial.5 The trial court imposed sentence against Cueva in open court on March
12, 2009 and denied Cueva's motion for new trial seventy-five days later, on May 26,
2009. The trial court's findings were filed on July 1, 2009, more than one month after it
ruled on the motion and more than 100 days after sentence was imposed. The State
asserts that discretionary rule of appellate procedure 21 "ties" the trial court's findings to
its ruling on the motion, and, therefore, those findings, like the ruling, must have been
made within seventy-five days after the trial court imposed Cueva’s sentence. See TEX.
R. APP. P. 21.8(a)-(b). We disagree.
Texas Rule of Appellate Procedure 21 provides, in relevant part, the following trial
court process for ruling on a motion for a new trial and for making findings of fact:
(a) Time to rule. The court must rule on a motion for new trial
within 75 days after imposing or suspending sentence in open
court.
(b) Ruling. In ruling on a motion for new trial, the court may
make oral or written findings of fact.…
Id. The earlier version of rule 21.8(b) set out that "[i]n ruling on a motion for new trial, the
court must not summarize, discuss, or comment on evidence." Landers v. State, 256
S.W.3d 295, 301 n.4 (Tex. Crim. App. 2008). Now, "the court may make oral or written
findings of fact." TEX. R. APP. P. 21.8(b).
"The rationale for the change in the rule is to ensure that appellate courts will not
need to speculate as to the possible factual findings supporting a trial judge's ruling if the
trial judge will articulate them." Landers, 256 S.W.3d at 301 n.4 (citing State v. Cullen,
195 S.W.3d 696, 698 (Tex. Crim. App. 2006) (noting that a trial court's refusal to enter
5
While Cueva challenges most findings, he does not argue that the findings should not be
considered because they were untimely made by the trial court.
17
findings of fact "leaves appellate courts with nothing to review except a one-word ruling
and forces the courts of appeals to make assumptions about the trial court's ruling" where
"[t]he ruling could be based on a mistake of law, on the trial court's disbelief of the
testimony presented, or even on a clerical error")); see In re Gillespie, 124 S.W.3d 699,
703 (Tex. App.—Houston [14th Dist.] 2003, no pet.) (explaining, in a civil context, that the
expiration of the trial court's plenary power does not affect or diminish the trial court's
ability to make and file amended findings of fact). Unlike the Texas Rules of Civil
Procedure, appellate rule 21.8 provides no time frame for requesting or filing findings or
amended findings. Compare TEX. R. APP. P. 21.8, with TEX. R. CIV. P. 296 (providing that
appellant shall file his request for findings within twenty days after the judgment is signed)
and id. at R. 297 (setting out, among other things, that the court shall file its findings within
twenty days after a timely request is filed), and id. at R. 298 (providing "[a]fter the court
files original findings of fact …, any party may file with the clerk of the court a request for
specified additional or amended findings … within ten days after the filing of the original
findings … by the court").
Guided by this rationale, we conclude that rule 21 does not require the trial court to
make its findings within the same seventy-five-day period it has to rule on the motion for
new trial, and we will, therefore, consider all relevant trial court findings. See TEX. R.
APP. P. 21.8(a)-(b). We do so in an effort to ensure that we will not need to speculate as
to the possible factual findings supporting the trial court's ruling. See Landers, 256
S.W.3d at 301 n.4. Furthermore, even were we to conclude that the trial court made its
extensive and explicit written findings in error because the findings were issued after the
expiration of the time period within which it was required to rule on the motion, the findings
18
are, at worst, harmless. A reviewing court must defer to any plausible, implied factual
findings that are reasonable and supported by the record and that would uphold the trial
court's ruling.6 See Johnson v. State, 169 S.W.3d 223, 239 (Tex. Crim. App. 2005). As
discussed in detail below, the trial court's factual findings, in this case, are those which we
would imply as necessary to support the ruling and to which we would defer because they
are both reasonable and supported in the record. See id.
The State also suggests that we should not consider the trial court's findings
because certain specific deficiency findings are inconsistent with the trial court's general
finding that "Cueva has failed to prove by a preponderance of the evidence … that
[counsel's] performance was deficient or outside the range of competence demanded of
attorneys in criminal cases." However, when this general finding is read in its entirety,
we find no such inconsistency
Finding of fact 4 set out, generally, that Cueva failed to prove that counsel's
performance was deficient or that a deficiency, if any, prejudiced his defense. Likewise,
after each specific finding of deficiency, the trial court found that the deficiency, if any, did
not prejudice Cueva's defense. For example, by its specific finding 31, the trial court
found that counsel's "failure to ask for an instruction to disregard or a mistrial regarding
improper testimony by [A.G.'s] mother about an extraneous assault fell below an objective
standard of reasonableness under the prevailing professional norms." In finding 32, the
trial court then found that "any deficient performance did not cause prejudice."
6
Although Cueva filed his notice of appeal on April 7, 2009, almost three months before the
court's findings were filed on July 1, 2009, he did not file his brief until February 8, 2010. Cueva does not
argue that the filing of the findings more than 100 days after sentence was imposed harmed him, i.e., that
he was denied the opportunity to properly present his appeal. Rather, on appeal, Cueva had the
opportunity to, and did, attack most of the trial court's findings.
19
Therefore, the State's argument is not persuasive. As concluded above, all specific
findings support the general language of finding 4, and we will consider all relevant trial
court findings.
B. STANDARDS OF REVIEW AND APPLICABLE LAW
1. Claims Raised in Motion for New Trial
Appellate issues involving claims brought in a motion for new trial are really
challenges to the trial court's ruling on the motion. See Charles v. State, 146 S.W.3d
204, 208 (Tex. Crim. App. 2004), superseded in part by rule of appellate procedure
21.8(b) on other grounds, as recognized by State v. Herndon, 215 S.W.3d 901, 905 n.5
(Tex. Crim. App. 2007); Shanklin v. State, 190 S.W.3d 154, 158 (Tex. App.—Houston [1st
Dist.] 2005), pet. dism'd, 211 S.W.3d 315 (Tex. Crim. App. 2007); see also Delgado v.
State, 13-09-00300-CR, 2010 Tex. App. LEXIS 6730, at *4-5 (Tex. App.—Corpus Christi
Aug. 19, 2010, no pet.) (mem. op., not designated for publication). We review a denial of
a motion for new trial under an abuse of discretion standard. Charles, 146 S.W.3d at
208; see Shanklin, 190 S.W.3d at 158; see also Delgado, 2010 Tex. App. LEXIS 6730, at
*4-5. A trial court abuses its discretion by denying a motion for new trial only when its
decision is arbitrary or unreasonable—that is, when no reasonable view of the record
could support the trial court's ruling. Charles, 146 S.W.3d at 208; see Escobar v. State,
227 S.W.3d 123, 126 (Tex. App.—Houston [1st Dist.] 2006, pet. ref'd). Under the facts
of this case, we will, therefore, review the two prongs of Strickland v. Washington, set out
below, through this abuse of discretion standard of review, reversing only if the trial
court's decision, as to the claims raised in Cueva's motion, is arbitrary or unreasonable.
Charles, 146 S.W.3d at 208; My Thi Tieu v. State, 299 S.W.3d 216, 223 (Tex.
20
App.—Houston [14th Dist.] 2009, pet. ref'd); Shanklin, 190 S.W.3d at 158-59; see
Strickland, 466 U.S. 668, 87 (1984); State v. Gill, 967 S.W.2d 540, 542 (Tex.
App.—Austin 1998, pet. ref'd) (holding that when a trial court grants a motion for new trial
on the basis of ineffective assistance of counsel, an appellate court should review the
standards of Strickland through a prism of the abuse of discretion standard and decide
whether the trial court's decision to grant a new trial was so outside the zone of
reasonable disagreement that it is subject to reversal).
Moreover, when the trial court files findings, as in this case, "[a]n appellate court
should defer to the trial court's findings of facts regarding the credibility and demeanor of
the witnesses, viewing the evidence in the light most favorable to the trial judge's rulings."
Gamboa, 296 S.W.3d at 584; see My Thi Tieu, 299 S.W.3d at 223; Shanklin, 190 S.W.3d
at 158-59; see also TEX. R. APP. P. 21.8. Because the trial judge is the sole judge of the
credibility of the witnesses, a trial court does not abuse its discretion by denying a motion
for new trial based on conflicting evidence. See Lewis v. State, 911 S.W.2d 1, 7 (Tex.
Crim. App. 1995). And we "presume that all reasonable factual findings that could have
been made against the losing party were made against that losing party." Charles, 146
S.W.3d at 208 (citing Quinn v. State, 958 S.W.2d 395, 402 (Tex. Crim. App. 1997); Beck
v. State, 573 S.W.2d 786, 791 (Tex. Crim. App. 1978) (noting that, at a motion for new trial
hearing, the trial judge has "the right to accept or reject any part of" a witness's
testimony)).
We utilize a two prong Strickland analysis to determine whether counsel's
representation was so deficient that it violated a defendant's constitutional right to
effective assistance of counsel. See Strickland, 466 U.S. at 687. Appellant must show
21
by a preponderance of the evidence that (1) counsel's performance was deficient, and (2)
the deficiency prejudiced the defense. Perez v. State, 310 S.W.3d 890, 893 (Tex. Crim.
App. 2010); Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005); Jaynes v.
State, 216 S.W.3d 839, 851 (Tex. App.—Corpus Christi 2006, no pet.); see Strickland,
466 U.S. at 687; Ex parte Martinez, 195 S.W.3d 713, 721 (Tex. Crim. App. 2006). A
defendant's failure to satisfy one prong negates the court's need to consider the other
prong. Strickland, 466 U.S. at 697; Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim.
App. 2009), cert. denied, 130 S. Ct. 3411 (2010).
Counsel's performance is deficient when his representation falls below an
objective standard of reasonableness. Ex parte Briggs, 187 S.W.3d 458, 466 (Tex.
Crim. App. 2005); Strickland, 466 U.S. at 687-88. In determining whether there is a
deficiency, we afford great deference to trial counsel's ability, indulging ―a strong
presumption that counsel's conduct falls within the wide range of reasonable professional
assistance,‖ Strickland, 466 U.S. at 689, and that counsel's actions were the result of
sound and reasonable trial strategy. Jaynes, 216 S.W.3d at 851. Decisions rooted in
strategy do not constitute deficient performance. Strickland, 466 U.S. at 689. Unless a
defendant can show in the record that counsel's conduct was not the product of a
strategic decision, "a reviewing court should presume that trial counsel's performance
was constitutionally adequate 'unless the challenged conduct was so outrageous that no
competent attorney would have engaged in it.'" State v. Morales, 253 S.W.3d 686,
696-97 (Tex. Crim. App. 2008) (en banc) (quoting Goodspeed, 187 S.W.3d at 392);
Roberts v. State, 220 S.W.3d 521, 533 (Tex. Crim. App. 2007) (quoting Goodspeed, 187
S.W.3d at 392); cf. Andrew v. State, 159 S.W.3d 98, 102 (Tex. Crim. App. 2005) (―[W]hen
22
no reasonable trial strategy could justify the trial counsel’s conduct, counsel’s
performance falls below an objective standard of reasonableness as a matter of law,
regardless of whether the record adequately reflects the trial counsel’s subjective
reasons for acting as she did.‖).
A defendant must also show that counsel's deficiency caused prejudice—i.e., that
the "errors were so serious as to deprive the defendant of a fair trial, a trial whose result is
reliable." Strickland, 466 U.S. at 687. To show prejudice, the defendant "must show
there is a reasonable probability that, but for his counsel's unprofessional errors, the
result of the proceeding would have been different." Smith v. State, 286 S.W.3d 333,
340 (Tex. Crim. App. 2009) (citing Strickland, 466 U.S. at 694). A reasonable probability
of prejudice is a "probability sufficient to undermine confidence in the outcome," meaning
"counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose
result is reliable." Id. (citing Strickland, 466 U.S. at 687); Mallett v. State, 65 S.W.3d 59,
62 (Tex. Crim. App. 2001) (explaining that a lawyer's deficient performance must
undercut the "proper functioning of the adversarial process" such that the result of the trial
cannot be reliable). "While the ultimate question of prejudice under Strickland is to be
reviewed de novo, the trial court should be afforded deference on any underlying
historical fact determinations." Escobar, 227 S.W.3d at 127 (quoting Johnson, 169
S.W.3d at 239).
"This right [to effective assistance of counsel] does not mean errorless or perfect
counsel whose competency of representation is to be judged by hindsight." Robertson
v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006). "The 'right to effective assistance
of counsel merely ensures the right to reasonably effective assistance.'" Id. (quoting
23
Rylander v. State, 101 S.W.3d 107, 109-10 (Tex. Crim. App. 2003) (en banc)).
"Allegations of ineffectiveness of counsel must be firmly founded in the record,"
Escobar, 227 S.W.3d at 127 (citing Mallett, 65 S.W.3d at 63), and a silent record that
provides no explanation for counsel's actions typically will not overcome the strong
presumption of effective assistance. Rylander, 101 S.W.3d at 110-11; Shanklin, 190
S.W.3d at 158-59.
2. Other Claims
There are significant differences between the claims Cueva raised in his
timely-filed motion for new trial and the claims Cueva argued at the hearing. Texas Rule
of Appellate Procedure 21.4(a)-(b) provides, in relevant part, the following procedure for
filing and amending a motion for new trial filed in a criminal case:
(a) To file. The defendant may file a motion for new trial before,
but no later than 30 days after, the date when the trial court
imposes or suspends sentence in open court.
(b) To amend. Within 30 days after the date when the trial court
imposes or suspends sentence in open court but before the
court overrules any preceding motion for new trial, a
defendant may, without leave of court, file one or more
amended motions for new trial.
TEX. R. APP. P. 21.4(a)-(b). In addition, a defendant may not amend or enlarge his
original motion with additional claims after the thirty-day period has expired, except when
the State fails to object to the addition at the time those claims are raised. Clarke v.
State, 270 S.W.3d 573, 580-81 (Tex. Crim. App. 2008) (citing State v. Moore, 225 S.W.3d
556, 570 (Tex. Crim. App. 2007)); see Jordan v. State, 883 S.W.2d 664, 665 (Tex. Crim.
App. 1994) (en banc) (setting out that the purpose of the hearing is for a defendant to fully
develop the issues raised in this motion for new trial). Thus, rule 21.4(b) permits the
24
State, after properly objecting, to insist that the trial court rule only upon the timely motion
for new trial as originally filed or timely amended, but not as untimely amended. See
TEX. R. APP. P. 21.4(b); see also Moore, 225 S.W.3d at 570.
At the hearing on his motion for new trial, which occurred after the relevant
thirty-day period had expired, Cueva attempted to enlarge or amend his original motion
with additional ineffective-assistance claims. See Clarke, 270 S.W.3d at 580-81. The
State objected to these additional claims. Because the State did so, the trial court should
have ruled only on the motion for new trial as it was originally filed. See TEX. R. APP. P.
21.4(b); Moore, 225 S.W.3d at 570. Instead, the trial court allowed Cueva to present
evidence on his additional claims and considered this evidence, in error. See TEX. R.
APP. P. 21.4(b); Moore, 225 S.W.3d at 570.
Nevertheless, it is well settled that ineffective assistance of counsel may be raised
without the necessity of a motion for new trial. See Robinson v. State, 16 S.W.3d 808,
809-13 (Tex. Crim. App. 2000). We, therefore, will consider these additional claims and
arguments under the Strickland standard, based only on the trial record, without giving
consideration to the evidence presented at the hearing on Cueva's motion for new trial or
to the trial court's findings relevant to those claims. See Strickland, 466 U.S. at 687; see
also TEX. R. APP. P. 21.4(b); Moore, 225 S.W.3d at 570.
In addition, Cueva raises other claims of ineffective assistance of counsel for the
first time on appeal. The Strickland standard also applies to these new claims. See
Strickland, 466 U.S. at 687. Therefore, the claims raised for the first time at the hearing
on the motion for new trial and objected to by the State and those made for the first time
on appeal will be reviewed together.
25
C. DISCUSSION
1. Claims Raised in Motion for New Trial
We will first address the ineffective-assistance-of-counsel claims that Cueva
presented in his motion for new trial and now asserts as part of his third and fourth issues
on appeal. The trial court denied Cueva's motion and filed findings regarding these
claims. As set out above, we will review the claims raised in Cueva's motion for new trial
under an abuse of discretion standard. See Charles, 146 S.W.3d at 208.
a. Cueva's Written Statement
Cueva first asserts that counsel's performance was deficient and that he was
harmed when counsel (1) failed to investigate matters and present evidence related to the
voluntariness of his written statement, (2) withdrew the motion to suppress his written
statement when counsel changed trial strategy, and (3) failed to request a jury instruction
on voluntariness.
A defendant's statement must be voluntary to be admissible. U.S. CONST.
amends. V & XIV; Jackson v. Denno, 378 U.S. 368, 376-77 (1974); see TEX. CODE CRIM.
PROC. ANN. arts. 38.21, 38.22 § 2(b) (West 2005) (providing that a statement is admissible
if made freely and voluntarily without compulsion or persuasion and the defendant
knowingly, intelligently, and voluntarily waives statutory rights). A confession may be
involuntary under the Due Process Clause only when there is police coercion or
overreaching. See Colorado v. Connelly, 479 U.S. 157, 163-66 (1985); Oursbourn v.
State, 259 S.W.3d 159, 169-71 (Tex. Crim. App. 2008). However, even absent coercion
or overreaching, a confession may still be involuntary under the broader protections of
Texas statutory law. See TEX. CODE CRIM. PROC. ANN. art. 38.22 § 6. The court of
26
criminal appeals has set out the following fact scenarios, among others, that can raise a
state-law claim of involuntariness: "(1) the suspect was ill and on medication and that
fact may have rendered his confession involuntary; (2) the suspect was mentally retarded
and may not have 'knowingly, intelligently and voluntarily' waived his rights; [or] (3) the
suspect 'lacked the mental capacity to understand his rights' …." Oursbourn, 259
S.W.3d at 172-73.
When assessing the reasonableness of an attorney's investigation, a reviewing
court must consider the quantum of evidence already known to counsel and whether the
known evidence would lead a reasonable attorney to investigate further. Ex parte
Martinez, 195 S.W.3d at 721 (citing Wiggins v. Smith, 539 U.S. 510, 527 (2003)). The
Supreme Court has set out the following concerning the duty to investigate:
Strategic choices made after thorough investigation of law and facts
relevant to plausible options are virtually unchallengeable; and strategic
choices made after less than complete investigation are reasonable
precisely to the extent that reasonable professional judgments support the
limitations on investigation. In other words, counsel has a duty to make
reasonable investigations or to make a reasonable decision that makes
particular investigations unnecessary. In any ineffectiveness case, a
particular decision not to investigate must be directly assessed for
reasonableness in all the circumstances, applying a heavy measure of
deference to counsel's judgments.
Wiggins, 539 U.S. at 521-23; see Ex parte Martinez, 195 S.W.3d at 721; Ex parte Briggs,
187 S.W.3d at 466-67. In Strickland, the Supreme Court concluded that "the decision
not to seek more character or psychological evidence than was already in hand was
likewise reasonable" and that "[t]rial counsel could reasonably surmise from his
conversations with respondent that character and psychological evidence would be of
27
little help."7 466 U.S. at 699. In addition, the defendant himself bears the primary duty
to divulge to his attorney evidence of his own physical and emotional conditions that
might have a bearing on the issues at trial. See Ex parte Martinez, 195 S.W.3d at 738
(providing that "the failure to present evidence of the alleged sexual abuse is borne
primarily by applicant, as he had ample opportunity to divulge this evidence to his lawyer
… before trial"). Also, when the facts adduced at trial and at any hearings concerning
ineffectiveness do not show that the defensive issue in question would have been viable,
trial counsel is not deficient for failing to further investigate and pursue that defense at
trial. See Ex parte Martinez, 195 S.W.3d at 724; Ex parte Lilly, 656 S.W.2d 490, 493
(Tex. Crim. App. 1983) (en banc).
In this case, the trial court found credible counsel's testimony, given at the hearing,
regarding Cueva's written statement given to the police and its voluntariness.
Specifically, the trial court's findings set out that the following testimony, provided by
counsel at the hearing, was credible: (1) "[counsel] changed his initial strategy of
attempting to exclude Cueva's statement and instead attempted to use the statement at
trial to show how the investigation had been 'botched' by the police" when they allowed
"the video recording to cut off in the middle of the taped statement and then attempt[ed] to
complete the statement with an unrecorded written confession"; (2) "[counsel] did not
believe he needed to have Cueva psychologically examined" based on meetings with
Cueva and with members of his family; and (3) "no one from Cueva's family mentioned
7
In Strickland v. Washington, the Supreme Court identified the ABA Standards for Criminal Justice
as one guide to determine what is reasonably expected of defense counsel. See 466 U.S. 668, 688
(1984). Under the section titled "Prompt Action to Protect the Accused," those standards encourage
counsel to consider numerous means to protect the client, including "obtaining psychiatric examination of
the accused when a need appears." ABA STANDARDS FOR CRIMINAL JUSTICE 4-3.6 (3rd Ed. 1993)
(emphasis added).
28
that he was slow in school or expressed concern with his mental or psychological
condition." The trial court also found that counsel "made a reasonable determination,
based on the facts available to him at the time, that he did not need a professional
evaluation of, or further investigation into, Cueva's psychological condition" and "[t]hus,
had no reasonable grounds to oppose or question the voluntariness of the statement
based on Cueva's psychological condition."
As part of its findings, the trial court addressed the opinions rendered by Paul
Hamilton, Ph.D., a psychologist who, after trial, examined Cueva for the defense to
determine whether he understood his Miranda warnings and the sworn, written
statement. The trial court found "implausible the opinions rendered by Dr. Paul Hamilton
… "that Cueva's 'emotional disturbance in combination with certain personality
characteristics … led him to sign a sworn, written statement without fully reading it and
understanding its content, thereby rendering it unknowing and involuntary' … especially
in light of the controverting affidavit and report of … Joel Kutnick[, M.D.,] disputing this
opinion and finding 'no specific cognitive defects or attentional disorder.'" See Lewis,
911 S.W.2d at 7.
The trial court further found that,
[counsel's] abandonment of the motion to suppress and his failure to
ask for a voluntariness instruction to the jury charge did not fall below an
objective standard of reasonableness under the prevailing professional
norms, in light of the fact that [counsel] had no reason to believe that Cueva
could raise a legitimate challenge to the voluntariness of the statement.
It concluded by finding "that abandonment of the motion to suppress was a reasonable
trial strategy under the circumstances in order to use the statement against the police and
to show how the overall investigation had been mishandled."
29
We also note that absent from the record is any indication that Cueva himself
expressed to his trial attorney that he was too slow or emotionally impaired to voluntarily
make the statement in question. See Ex parte Martinez, 195 S.W.3d at 738. Rather, at
trial, Cueva claimed only that he did not read the statement because he knew the officer in
question and trusted him to have typed it up correctly.
Therefore, deferring to the trial court's findings of facts regarding the credibility and
demeanor of the witnesses and viewing the evidence in the light most favorable to the trial
judge's rulings, see Gamboa, 296 S.W.3d at 584, we conclude that the trial court's
decision that counsel's actions in this regard were not deficient was not an abuse of
discretion. See Charles, 146 S.W.3d at 208; see also Strickland, 466 U.S. at 687.
Cueva has not demonstrated that counsel performed "below an objective standard of
reasonableness" on this basis. See Ex parte Briggs, 187 S.W.3d at 466.
b. "Victim" Language
Cueva complains that counsel’s actions were deficient when counsel referred to
A.G. as the victim at least five times during the course of the trial and, by his actions,
conceded that Cueva had committed a crime. He contends that counsel's purported
strategic explanation for his conduct was unsound. Cueva also asserts that the
prejudicial effect of counsel’s use of this word was compounded when the State and its
witnesses described A.G. as the victim twenty-three times during the guilt-innocence
stage, without objection. In response, the State argues the following:
"Victim" is a convenient label that identifies who the witnesses and
attorneys are arguing about. It is a more common and commonly
understood term, and less stuffy than "complainant," less awkward than
continuing to refer to the person as the "alleged victim," and does not
suggest what may be perceived as inappropriate familiarity in referring to
30
the person by their [sic] name. Moreover, in view of the vigorous defense
presented in the present case, there should have been no doubt in the jury's
mind that it was merely being used as a convenient label and not as any sort
of admission that the crime actually occurred.
Cueva cites Talkington v. State and Veteto v. State for the proposition that
references to the complainant as the "victim" are improper when made by the trial court
because they constitute comments on the weight of the evidence. See Talkington, 682
S.W.2d 674, 674-75 (Tex. App.—Eastland 1984, pet. ref'd) (explaining that the trial
court's reference in its charge to the "victim" in a rape case was an improper comment on
the weight of evidence because there was no dispute that sexual intercourse had
occurred and the sole issue was whether it was consensual and whether the complainant
was truly a "victim"); Veteto, 8 S.W.3d 805, 816-17 (Tex. App.—Waco 2000, pet. ref'd),
abrogated on other grounds by State v. Crook, 248 S.W.3d 172, 174-75 (Tex. Crim. App.
2008) (determining that the trial court "gave credence to [the complainant's] testimony
that the assaults occurred and that she was, indeed, a victim" by referring to the
complainant as the victim instead of the alleged victim and concluding that the trial court
commented on the weight of the evidence by failing to refer to A.L. as the "alleged"
victim). Cueva asserts that references to ―victim‖ by lawyers and witnesses are equally
improper and unfairly prejudicial, not because they are comments on the weight of the
evidence, but because the references suggest personal opinions that a crime occurred.
Cueva refers this Court to Craig v. State and Doherty v. State as cases that are
sufficiently analogous to the present case so as to lend support to his argument. See
Craig, 847 S.W.2d 434, 435-36 (Tex. App.—El Paso 1993, no pet.); Doherty, 781 S.W.2d
439, 441-42 (Tex. App.—Houston [1st Dist.] 1989, no pet.). On remand, the Craig Court
31
reviewed counsel's effectiveness only at the punishment stage, not the guilt-innocence
stage, and considered the effect of his performance by applying the then-accepted Duffy
standard, not the Strickland standard.8 Craig, 847 S.W.2d at 435-36 (citing Ex parte
Duffy, 607 S.W.2d 507, 514 n.14 (Tex. Crim. App. 1980) (explaining that the Duffy test for
effectiveness of counsel in the punishment phase of a non-capital offense was, first,
whether counsel was reasonably likely to render effective assistance, and second,
whether counsel reasonably rendered effective assistance). These facts alone
distinguish Craig from the present case. Nonetheless, in its original opinion, the El Paso
Court had found that counsel's actions during the guilt-innocence stage were deficient
when, among other things, counsel framed questions on cross-examination in a manner
that accepted "a State-oriented interpretation of the circumstantial evidence and
implications of the witness's testimony."9 Id. at 435 (citing Craig v. State, 783 S.W.2d
620, 625-26 (Tex. App.—El Paso 1989) rev'd, 825 S.W.2d 128 (Tex. Crim. App. 1992) (en
banc)). On remand, the court further concluded that "[g]iven these [eight] instances of
deficient performance of counsel throughout the trial, [including the one noted above,] we
are constrained to find that [Craig] did not receive reasonably effective assistance of
counsel at the punishment stage of trial." Id. at 435-36. The Craig court reversed the
8
The Texas Court of Criminal Appeals noted that the El Paso Court of Appeals had found eight
instances of deficient performance by trial counsel. Craig v. State, 825 S.W.2d 128, 129 (Tex. Crim. App.
1992 (en banc). The "immediate impression [of the court of criminal appeals] was that these deficiencies
would necessitate reversal" of the entire case. Id. However, upon closer analysis, the court determined
that Craig had not satisfied the prejudice prong of Strickland. Id. (citing Boyd v. State, 811 S.W.2d 105,
109 (Tex. Crim. App. 1991) (en banc)) (providing that the Strickland test is the proper standard to gauge
counsel's effectiveness at the guilt-innocence phase of a non-capital trial and at the guilt-innocence and
punishment phases of a capital murder trial).
9
The Craig Court also found, in its original opinion, that this incident was not "attributable to
colorable tactical decision." See id. at 435 (citing Craig, 783 S.W.2d at 626). Again, this distinguishes
Craig because the findings of the trial court in this case, as set out below, suggest a strategic or tactical
decision-making on the part of counsel regarding the use of "victim."
32
judgment and remanded for a new trial only on punishment. Id. at 436.
The Doherty Court determined that counsel's omissions, including his failure to call
certain witnesses and to object on numerous legal grounds to the State's questions and to
the admissibility of exhibits at the guilt-innocence stage, met both prongs of Strickland.
781 S.W.2d at 442. Concluding that counsel's ineffective assistance warranted remand
for a new trial, the First Court of Appeals added the following:
However, [counsel] did not stop there. Aside from his omissions,
[counsel] himself made remarks prejudicial to appellant. [Counsel's]
remarks to appellant, "you didn't take all the money?" and, "What did you
do, hit him over the head first?" were heard 15-20 feet away. Fleming
essentially admitted his client's guilt in the presence and hearing of the jury.
We find that, considering the totality of [counsel's] representation of
appellant, [counsel's] performance did not meet the standard of reasonably
effective assistance of counsel.
Id.
Although both Craig and Doherty found multiple deficiencies in the respective
counsel's performance, none of the deficiencies involved the use of the word "victim."
Specific to Cueva's argument, Craig's counsel framed questions on cross-examination in
a manner that accepted the State's interpretation of the evidence. See Craig, 847
S.W.2d at 435. Doherty's counsel asked him, with the jury nearby, if he took all the
money and if he hit the victim over the head first. See Doherty, 781 S.W.2d at 441-42.
Counsel's performance in each case arguably suggests a personal opinion that a crime
occurred. We cannot conclude the same through Cueva's counsel's use of "victim" or
through his failure to object to another's use of the word, as Cueva urges.
This conclusion is supported by the trial court's findings in this case. It found
counsel's testimony regarding references to the complainant as "victim" credible;
33
specifically, that counsel did not object to the use of "victim" "because he did not believe it
was practical to restrict the labels used to identify the parties in this manner" and
"because he did not believe the references were harmful [to the defense], because jurors
expected the use of such terms and were not influenced by their use." The trial court
found that counsel's performance as it related to the use of the word "victim" was not
deficient, and specifically, the court found that counsel's own use of the term was not
deficient "in light of the fact that such terms are commonly used at trial in a neutral manner
to describe the events in question and, in context, carry no implication that the person
using such terms has an opinion one way or the other about the guilt of the defendant."
The trial court further found that any deficient performance regarding use of the "victim"
language "did not cause prejudice, and specifically that there is not a probability sufficient
to undermine confidence in the outcome that, but for the complained-about deficiencies,
the result of the proceeding would have been different."
We agree—because the term "victim‖ is relatively mild and non-prejudicial,
especially given that courts have held invocation of far stronger terms did not amount to
reversible error. See Lopez v. State, 162 Tex. Crim. 454, 286 S.W.2d 424, 425 (Tex.
Crim. App. 1956) (holding that the use of the word "slaughter" did not cause injury to
appellant); Espalin v. State, 90 Tex. Crim. 625, 237 S.W. 274, 279 (Tex. Crim. App. 1921)
(concluding that the prosecutor's reference to appellant as "this killer" was not so
prejudicial as to injure appellant's rights); Jones v. State, 900 S.W.2d 392, 397 (Tex.
App.—San Antonio 1995, pet. ref'd) (deciding that the prosecutor's use of the term "sex
slave" in regard to the complainant was not reversible error); White v. State, 699 S.W.2d
607, 615 (Tex. App.—Dallas 1985, pet. ref'd) (determining that the use of the word
34
"butcher" in reference to the appellant was not improper); see also Byler v. State, No.
03-01-00012-CR, 2002 Tex. App. LEXIS 1667, at *9-10 (Tex. App.—Austin Mar. 7, 2002,
pet. ref'd) (mem. op., not designated for publication) (holding that counsel was not
ineffective for failing to object to the State's characterization of complainant as "victim").
And appellate courts in Texas have even used the word "victim" in writing their opinions.
See, e.g., Villalon v. State, 791 S.W.2d 130, 134 n.1 (Tex. Crim. App. 1990) (en banc) ("In
this opinion the victim of appellant's sexual assault is referred to as the victim.").
Therefore, deferring to the trial court's findings of facts regarding the credibility and
demeanor of the witnesses and viewing the evidence in the light most favorable to the trial
judge's ruling, see Gamboa, 296 S.W.3d at 584, we conclude that the trial court's decision
that counsel's actions were not deficient in this regard and that any deficiency was not
prejudicial, was not an abuse of discretion. See Charles, 146 S.W.3d at 208; see also
Strickland, 466 U.S. at 687. Cueva has not demonstrated that counsel performed
"below an objective standard of reasonableness" on this basis. See Ex parte Briggs, 187
S.W.3d at 466.
c. Testimony that Sexual Assault Occurred
Cueva also complains that references to where the crime occurred or the sexual
assault took place and counsel's failure to object to the use of this language improperly
communicated the opinions of the witnesses and counsel that Cueva was guilty. He
asserts that counsel's purported strategic explanations were unsound and did not justify
his eliciting or failing to object to references and opinion testimony that a sexual assault
occurred; thus, this conduct constitutes deficient performance.
35
Cueva first complains of exchanges between counsel and Detective Eduardo
Tagle that occurred over approximately sixty pages of trial transcript. Cueva directs this
Court to ten times Detective Tagle made reference, without objection, to where the crime
or sexual assault occurred. Furthermore, in response to counsel's question "Who took
you in there and showed you these beds and told you this what you had been calling the
scene where the sexual assault took place?", Detective Tagle responded, "Well, the
mother explained to me which bed the sexual assault took place on and which bed he
jumped over to."
Importantly, the trial court found credible counsel's "testimony that he did not
object to testimony by the detective referring to the 'assault' because he did not perceive
these references as suggesting that the assault or crime actually occurred and because
jurors expect officers to testify in this manner." The trial court also found credible
counsel's "testimony that his questioning of the detective referring to the location where
the sexual assault occurred was designed to show that [A.G.'s] mother claimed
something happened without actually seeing it." Thus, the trial court concluded that
counsel "had a strategic reason for phrasing his questions in the way he did."
Cueva also directs us to the following exchange between counsel and Nurse
McLaughlin, regarding her examination of A.G.:
Q. So what is the point of the exam actually?
A. The point of the exam is to find out from the child what happened, get
her history, and to treat her medically so that she does not have an
infection or something that needs to be treated.
Q. And you also gather some evidence, correct?
36
A. I gather evidence if it falls within the period of time that evidence
collection is recommended, and I do it as a courtesy but nothing else.
Q. Did it happen in this case?
A. It did.
Q. Because it fell within the 96 hour period, correct?
A. Right. Because I saw [A.G.] right after something had happened to
her.
Q. Is that the impression you got from … the mother of [A.G.], that she
brought her there immediately after this happened?
A. I had that the time of the incident on my chart was 8/5/07 at 2200 or
10 o'clock at night.
…
Q. On page 2 of 6, we have post-assault hygiene. You have that page
in front of you?
A. Yes, I do.
…
Q. Post-assault hygiene which means after the assault happened?
A. Before she saw me, yes.
Q. In between the assault and seeing you –
A. Correct.
Q. – [A.G.] told you that she had wiped and washed herself?
A. She had wiped.
As to this complained-of testimony, the trial court found credible counsel's
"testimony that his question regarding what [A.G.] told the nurse 'after the assault took
place' merely restated the victim's words and did not communicate [counsel's] own
37
opinion that an assault occurred." The trial court also generally found credible counsel's
"testimony that his reference to the 'scene of the crime' did not communicate to the jury
the belief that a crime actually occurred" and "that references to … the 'scene of the crime'
during the course of a trial do not cause harm to the defense." Finally, the court found
the counsel's failure to object to references by the prosecutor or the witnesses to "scene
of the crime" and to statements suggesting that a crime occurred and his own use of the
terms was not deficient performance "in light of the fact that such terms are commonly
used at trial in a neutral manner to describe the events in question and, in context, carry
no implication that the person using such terms has an opinion one way or the other about
the guilt of the defendant."
Cueva also suggests that counsel was ineffective when he did not object to
Detective Arturo Gonzalez's testimony, on direct examination by the State, that the
absence of semen did not cause him to believe Cueva was innocent and, later, that he
believed "there was a sexual act going on." However, with regard to Detective
Gonzalez's first response, the State's initial question merely elicited his conclusion that
the absence of semen on A.G.'s panties did not show that Cueva could not have
committed the crime and, with regard to Detective Gonzalez's later response, that he
believed there was a "sexual act going on," counsel did object, and the trial court
sustained the objection.
Finally, Cueva directs us to the use of "after the assault took place" in the following
question asked by counsel of A.G.'s mother during cross-examination: "You understand
[A.G.] has told the nurse that she did all three of those things after the assault took place
and before she was examined?" When the question is read in context, however, it is
38
apparent that counsel was attacking the credibility of the child by emphasizing
inconsistencies between what A.G. told the nurse and what her mother believed
happened, not that he was conceding a crime occurred, as argued by Cueva.
Again deferring to the trial court's findings of facts regarding the credibility and
demeanor of the witnesses and viewing the evidence in the light most favorable to the trial
judge's rulings, see Gamboa, 296 S.W.3d at 584, we conclude that the trial court's
decision that counsel's actions in regard to the use or failure to object to the use of such
complained-of language were not deficient was not an abuse of discretion. See Charles,
146 S.W.3d at 208; see also Strickland, 466 U.S. at 687. Cueva has not demonstrated
that counsel performed "below an objective standard of reasonableness" on this basis.
See Ex parte Briggs, 187 S.W.3d at 466.
d. Testimony that A.G. Was Telling the Truth10
Cueva contends that his counsel was ineffective when he elicited testimony from
three witnesses—A.G.'s mother, a nurse, and a counselor—that they believed A.G. was
telling the truth about the allegations of sexual assault. He describes this testimony as
prejudicial. Cueva asserts that counsel's strategic explanation for this conduct was
incredible and did not justify his actions. We disagree.
A direct opinion on the truthfulness of the child, from either a lay witness or an
expert witness, is inadmissible. Yount v. State, 872 S.W.2d 706, 708 (Tex. Crim. App.
1993) (en banc); Sessums v. State, 129 S.W.3d 242, 247 (Tex. App.—Texarkana 2004,
10
In his motion for new trial, Cueva also complained that his trial counsel failed "to object to the
prosecutor's argument that [Cueva] and his mother were lying" during the guilt-innocence stage of the trial.
However, no findings were made regarding this claim, and Cueva does not make this argument on appeal.
39
pet. ref'd); Fisher v. State, 121 S.W.3d 38, 41-42 (Tex. App.—San Antonio 2003, pet.
ref'd). Additionally, an expert may not offer an opinion that the class of persons to which
the complainant belongs, such as child sexual abuse victims, is truthful or worthy of belief.
Pavlacka v. State, 892 S.W.2d 897, 902 n.6 (Tex. Crim. App. 1994) (en banc); Yount, 872
S.W.2d at 712. This type of testimony is inadmissible because it does more than "assist
the trier of fact to understand the evidence or to determine a fact in issue"; it decides an
issue for the jury. Yount, 872 S.W.2d at 709. An expert may, however, testify to
behaviors and traits that might constitute indicia of manipulation. Schutz v. State, 957
S.W.2d 52, 70 (Tex. Crim. App. 1997). For example, "[a] party may attack the credibility
of a witness or other declarant by offering," among other things, "evidence that the person
is, in general, the kind of person who is easily manipulated," id., or an expert may offer
"testimony that a child exhibits behavioral characteristics that have been empirically
shown to be common among children who have been abused" because it "is relevant and
admissible as substantive evidence under [r]ule 702." Perez v. State, 113 S.W.3d 819,
832 (Tex. App.—Austin 2003, pet. ref'd), overruled on other grounds, Taylor v. State, 268
S.W.3d 571, 587 (Tex. Crim. App. 2008).
(i.) A.G.'s Mother
First, Cueva complains of the following testimony counsel elicited from A.G.'s
mother on cross-examination:
Counsel: Do you have any evidence to present to this jury that this
incident was repeated on prior occasions?
…
40
Mother: My daughter should be more than—she told me. I believe
her. I walked in on it. I don't know what other evidence you
need.
After A.G.'s mother testified in this manner, counsel elicited testimony from A.G.'s mother
that she believed everything her daughter told her. Counsel then asked questions about
inconsistencies between what A.G. told her mother and what A.G. told the nurse
immediately after the incident.
As to this complaint, the trial court found "credible [counsel's] testimony [at the
hearing on the motion for new trial] that it was his strategy to elicit testimony from [A.G.'s
mother] that she believed [A.G.'s] accusations and that she always believed [A.G.],
because it allowed [counsel] to contradict this by showing that [A.G.] lied about matters
that occurred after the assault." The court also found credible counsel's "testimony that
[A.G.] could not have been truthful to both her mother and the nurse examiner because of
conflicts in what she told the two witnesses, even though both witnesses were adamant
that [A.G.] did not lie." The trial court further found that counsel's actions were based on
reasonable trial strategy to attack the credibility of A.G.'s mother and that deficient
performance, if any, did not cause prejudice "in light of the fact that the opinion testimony
was given by witnesses who had shown themselves to be biased against Cueva and
thus, the witnesses could be expected to hold such opinions." The trial court's finding of
"no prejudice" is further supported by the line of cases that stand for the proposition that
the admission of a mother's testimony regarding her child's character for truthfulness is
harmless. See, i.e., Fisher, 121 S.W.3d at 41 (holding any error in allowing an aunt and
legal guardian to testify to complainant's character for truthfulness was harmless and
stating, that "[a] jury would have expected … Alice's aunt and legal guardian who raised
41
Alice as her own child for six years prior to trial, to testify that Alice was truthful"); In the
Matter of G.M.P., 909 S.W.2d 198, 206 (Tex. App.—Houston [14th Dist.] 1995, no pet.)
("A jury would expect a mother to testify that her son was truthful, and would likely view
such testimony with natural skepticism.").
(ii.) Nurse Examiner McLaughlin
Cueva also complains of counsel's eliciting from McLaughlin, the sexual assault
nurse examiner, that all five-year-old children tell her the truth. This question followed
testimony by McLaughlin about A.G.'s examination. McLaughlin indicated, through her
testimony, that it would not matter to her if the things A.G. told her about her "post-assault
hygiene" were not true because she was five. When asked by counsel, "So when they
are five it really does not matter to you whether or not what they are telling you is the
truth?", McLaughlin testified that "[t]hey are usually pretty on about what they've done."
After obtaining testimony regarding details of A.G.'s "post-assault hygiene," the following
cross-examination occurred:
Counsel: Can a five year olds [sic] be manipulated?
Nurse: Can they be manipulated? Sometimes, sure. Everybody
can.
Counsel: Do you know if [A.G.] is a five-year old subject to being
manipulated?
Nurse: I think ever [sic] person is subject to being manipulated, sir, so
yeah, she could be manipulated.
Counsel: And finally, do all five-year olds tell you the truth?
Nurse: Pretty much so, yeah.
McLaughlin's opinion testimony that A.G. is, in general, the kind of person who
42
could be manipulated was admissible. See Schutz, 957 S.W.2d at 69-70; Perez, 113
S.W.3d at 832. Counsel then asked McLaughlin if all five-year-old children tell her the
truth. He did not ask if five-year-old sexually-abused children—the specific class of
persons to whom this complainant belongs—tell her the truth. See Pavlacka, 892
S.W.2d 902 n.6; Yount, 872 S.W.2d at 712. Still referring generally to the broad class of
all five-year-old children, counsel asked, "Never had a five-year old tell you something
that was not true?", to which McLaughlin answered,
Most five-year olds would rather not tell me anything or tell me like it
is. Sure, I have had one or two lie to me in some way. I am sure one of
them would tell me that the blue monster came out of the closet. I have
had a couple do that. I have had a five-year old tell me that somebody was
an alien. But in their mind, this was true to them. I have had five-year olds
lie to me but in that content, it would depend on the content.
Relevant to the foregoing, the trial court found credible counsel's "testimony that
the reason he elicited testimony from the sexual assault nurse examiner that all
five-year-olds generally tell her the truth" was "to demonstrate that her opinions were
baseless, biased, and absurd." The trial court found credible counsel's "testimony that
during direct examination, the nurse indirectly conveyed her opinion that A.G. was telling
the truth" and that counsel's elicitation of testimony from McLaughlin concerning her belief
about the truthfulness of A.G. was based on reasonable trial strategy to attack her
credibility. It also found that any deficient performance in such elicitation did not cause
prejudice "in light of the fact that the opinion testimony was given by witnesses who had
shown themselves to be biased against Cueva and thus, the witnesses could be
expected to hold such opinions."
43
(iii.) Counselor Ramos
Finally, Cueva challenges counsel's cross-examination of Dennis Ramos, a
licensed professional counselor, who testified that he knew he was going to testify at
Cueva's trial only one day before he did so and that he was not briefed on the case by the
prosecutor until the day he testified.11 Cueva complains of counsel's actions when he
elicited testimony from Ramos that, in his experience, it is "very rare that a child will lie
about sexual abuse" and that he had "never seen a younger child lie about being
abused." This testimony occurred during the following cross-examination of Ramos
about his case load and the criteria or methodology he uses:
Counsel: How do you get those cases [you are maintaining at this
time]?
Ramos: All different places.… The children that are actually abused
that are referred to me are either brought in by their parents or
they are refereed to me by an agency ….
Counsel: Now when you say "actually abused," how is that
determination made, that actual abuse has taken place?
Ramos: By the report of the child and also by medical exam.
Counsel: Okay. So we have either the child saying, I was sexually
abused, or some kind of medical examination's finding and
making an affirmative finding of sexual abuse?
Ramos: Or both.
Counsel: Now, in your opinion, if a child says they are sexually abused,
is [sic] there any questions in your mind that the said abuse
has taken place?
11
Ramos explained that he was told "[t]here was a five-year old victim and that the accused was
discovered by the mother." He was not told what specifically was discovered, and he had not talked with
A.G. or her mother. Ramos testified that he was "not forming an opinion about the guilt or innocence about
this—this case. [He was] merely providing [his] experience about … the validity of—of abuse victims and
the behaviors of perpetrators that [he knew] from [his] experience."
44
Ramos: I evaluate that, but my experience is that it's very rare that a
child will lie about those things.
Counsel: Have you never met a child who has lied about being sexually
abused?
Ramos: I have met probably two, and they were older children, 14 or
15 years old.
Counsel: How do you determine that they have lied about their sexual
abuse[?]
….
Ramos: The only way that I know to determine that is if they admit that
they have lied.
Counsel: So unless the child admits that he has lied about it, we're
going to take at face value the child has been sexually
abused—
Ramos: I—
Counsel: By the fact that they said that?
Ramos: I generally evaluate the possibility of lying. It has been very
rare that I have seen children lie about being abused,
especially in—I have never seen a younger child lie about
being abused.
Then, through the series of questions and answers set out below, counsel
challenged Ramos's method of determining whether a child is sexually abused which, as
described by counsel, is based on "subjective" criteria. In this same exchange, counsel
also elicited testimony from Ramos that he agreed medical professionals also take the
child's claims at "face value" and believed this was a "valid measure" of the child's
truthfulness:
Counsel: Well, I mean that's because you have already determined the
criteria for that is admitting that they have lied.
45
What you're telling us is that you've never had a
younger child who has claimed that they have been sexually
abused later admit that they weren't sexually abused; is that
right?
Ramos: That's correct.
Counsel: You have never been able to actually objectively determine
whether or not any of these children have actually lied about
it. Correct?
Ramos: I have been able to establish when they told the truth, when
there's other evidence. But as far as—
Counsel: What percentage of cases have additional evidence,
objective evidence that you can look at besides the subjective
complaint of sexual abuse, in your practice?
Ramos: I would say at least half have other corroborating evidence,
either a witness or medical—medical documentation about
the abuse.
Counsel: Okay. How many have had a witness?
Ramos: Probably about 20 percent.
Counsel: Twenty percent witnesses come forward and say, Yes, I
watched sexual abuse take place?
Ramos: Or I discovered it or another child witnessed it, yes.
Counsel: Okay. Then what about the medical side of it? What do you
usually regard as medical evidence of child abuse?
Ramos: I take at face value what the nurses' and doctors' report say,
If they—
Counsel: Such as the doctors' reports provided by the sexual assault
nurse examines?
Ramos: Yes.
Counsel: Now, have you ever spoken with a sexual assault nurse—a
sexual assault nurse examiner about what criteria they look at
in determining whether or not sexual abuse has taken place?
46
Ramos: Yes.
Counsel: Do you realize that the same criteria that you employ is the
same criteria that they employ; that if, in fact, a child reports a
history of sexual abuse, they take that at face value?
Ramos: That makes sense to me. That does sound like a valid
measure.
Counsel: Do you not see a problem with the circular nature of that, that
because a sexual assault nurse examiner said that the
historian reports it; and, therefore, I take it as face value, we
now have a report that you consider could corroboration,
when, in fact, it's nothing more than what you've already
heard?
Ramos: Well, I was speaking of physical evidence.
In its findings, the trial court found credible counsel's testimony that the reason he
elicited the complained-of testimony from Ramos was "to demonstrate the absurdity of
this premise, attack his credibility, and show that he was biased in favor of the State, in
view of the fact that counsel had not interviewed [A.G.] and was not familiar with the
present case." The trial court further found credible counsel's "testimony that it was his
strategy to show that the psychologist believed any child who did not later admit to lying
and that it was absurd for a [counselor] who had never interviewed the [complainant] to
render an opinion that children always tell the truth." The trial court also found, as it did
for A.G.'s mother and the nurse examiner, that counsel's elicitation of testimony from
Ramos concerning his belief about the truthfulness of children was based on reasonable
trial strategy to attack his credibility and that any deficient performance in such elicitation
did not cause prejudice "in light of the fact that the opinion testimony was given by
witnesses who had shown themselves to be biased against Cueva and thus, the
47
witnesses could be expected to hold such opinions."
Therefore, deferring to the trial court's findings of facts regarding the credibility and
demeanor of A.G.'s mother, McLaughlin, and Ramos, and viewing the evidence in the
light most favorable to the trial judge's rulings, see Gamboa, 296 S.W.3d at 584, we, too,
conclude that the trial court's decision that counsel's actions in this regard were the result
of reasonable trial strategy, see Jaynes, 216 S.W.3d at 851, and any deficiency in his
actions was not prejudicial. See Charles, 146 S.W.3d at 208; see also Strickland, 466
U.S. at 687. Cueva has, therefore, not demonstrated ineffective assistance of counsel
on this basis. See Ex parte Briggs, 187 S.W.3d at 466.
e. Testimony that Cueva Threatened A.G.'s Mother
Cueva contends that counsel was also ineffective when he elicited testimony from
A.G.'s mother that A.G. said Cueva threatened to hurt her mother if A.G. told anyone what
he did to her.12 Specifically, Cueva's trial counsel asked A.G.'s mother, "Did you ask
[A.G.] what happened?," and A.G.'s mother replied that A.G. told her that it was not the
first time and she did not tell her mother because Cueva said he "would hurt mommy if
[A.G.]" told her. Cueva asserts that this testimony was inadmissible hearsay because
(1) counsel did not request, and the trial court did not conduct, a mandatory article 38.072
12
Cueva recognizes that the State gave pre-trial notice that it intended to introduce outcry
statements made by A.G. through testimony from her mother, McLaughlin, and Ricardo Jiminez, a
counselor. Cueva's trial counsel successfully objected to Jiminez testifying about statements made by
A.G. on the basis that he was not a proper outcry witness. Therefore, we have nothing to review regarding
Jiminez's testimony.
In addition to complaining about testimony related to the alleged threats and the reason for A.G.'s
silence, Cueva complains, for the first time on appeal, about counsel's failure to object to additional
inadmissible hearsay testimony provided by A.G.'s mother and McLaughlin. Therefore, these additional
complaints should be addressed under the Strickland standard. However, because the record is
insufficiently developed to support this complaint of ineffective assistance, we need not address it further.
See Rylander v. State, 101 S.W.3d 107, 110-11 (Tex. Crim. App. 2003).
48
hearing, see TEX. CODE CRIM. PROC. ANN. art. 38.072, ' 2 (West Supp. 2010); (2) A.G.'s
mother was not a proper outcry witness because she and McLaughlin testified concerning
A.G.'s statements about the same events, see Broderick v. State, 35 S.W.3d 67, 73 (Tex.
App.—Texarkana 2000, pet. ref'd) (explaining that testimony from more than one outcry
witness is inadmissible under article 38.072 where the witnesses repeat the same events
as related to them by the complainant); and (3) the testimony was not about an outcry
statement because it did not describe the alleged offense. See TEX. CODE CRIM. PROC.
Ann. art. 38.072, ' 2 (providing, inter alia, that "[t]his article applies only to statements that
describe the alleged offense"); Garcia v. State, 792 S.W.2d 88, 91 (Tex. Crim. App. 1990)
(en banc) (setting out, to be admissible, an outcry statement must describe the alleged
offense in some discernible manner).
Assuming without deciding that the statements were inadmissible for any one of
the three reasons set out by Cueva, we nonetheless conclude that counsel's action in
eliciting the response and not objecting that it was non-responsive testimony was not
ineffective assistance. This testimony occurred on cross-examination of A.G.'s mother
after counsel asked her if she had asked A.G. what happened. Rather than giving a
"yes" or "no" response, A.G.'s mother began recounting what A.G. had told her about the
incident, that it was not the first time, and why she had not said something earlier.
Instead of objecting, Cueva's counsel used this testimony against A.G.'s mother, as
inconsistent with her prior statement to the police. As Cueva acknowledges, A.G.'s
mother admitted she did not include these statements in her written statement to the
police. She testified that, instead, she told the police and A.G.'s psychologist that A.G.
told her this.
49
Following the motion for new trial hearing, the trial court found credible counsel's
"testimony that he was able to impeach [A.G.'s] mother with her non-responsive
testimony by showing that the mother had not previously made these claims in the
statement given to the police." The trial court further found credible counsel's "testimony
that it was his strategy to point out the mother's inconsistent testimony and that she was
changing things she said in her prior testimony," and that "this was a reasonable trial
strategy in light of the fact that the mother's credibility was a key factor at trial." The court
then found that counsel's actions were not ineffective and not prejudicial.
Deferring to the trial court's findings of facts regarding the credibility and demeanor
of the witnesses and viewing the evidence in the light most favorable to the trial judge's
rulings, see Gamboa, 296 S.W.3d at 584, we also conclude that the trial court's decision
that counsel's actions in this regard were not deficient and, even if they were deficient,
they were not prejudicial, was not an abuse of discretion. See Charles, 146 S.W.3d at
208; see also Strickland, 466 U.S. at 687. Cueva has not demonstrated that counsel
performed "below an objective standard of reasonableness" or that he was prejudiced by
counsel's deficiency, if any, on this basis. See Ex parte Briggs, 187 S.W.3d at 466.
f. Testimony About Sexual Assaults of Small Children
Cueva next asserts that testimony provided by McLaughlin—testimony Cueva
describes as explaining "how most rapists sexually assault small children"—was
non-responsive, irrelevant under rule of evidence 401, and even if relevant, unduly
prejudicial under rule of evidence 403. He claims that counsel's failure to object to this
testimony constituted deficient performance.
50
On direct examination, the State asked McLaughlin if, when she performed her
examinations, she expected to find genital trauma in the area of the female sexual
organ,13 even if a sexual assault had just occurred. In response, McLaughlin testified
that "80 percent of the time [she] does not find injuries" although she looks for injuries,
"they are not there." The State then asked McLaughlin to "explain how the hymen is not
injured through sexual assault," and McLaughlin provided the following testimony:
Sexual assault can happen a lot of ways like I said. With small
children, when people are trying to touch small children, their aim is not to
hurt them because if you hurt them, they are going to tell. So you don't
want to hurt them or they are going to go running off and tell. We have
found with smaller children, the anus is used a lot because it is a lot more
flexible and with proper lubrication and moistness, it can be very slippery
and non-painful for the child. With the female sexual organ, when you hit
the hymen of a child that hasn't started her period yet, it is a painful thing. It
hurts. So most people that try to do sexual acts on small children will do
them between the lips and more like rub between the lips and back towards
the back, kind of like a hot dog bun upside down, rubbing between the lips.
Because if they go in, they are going to hit that painful area and they don't
want to cause pain because then the kid is going to cry or runaway or tell.
Cueva's trial counsel did not object, and the State continued, "So when you
examined A.G. …, what did you see?" In response, McLaughlin testified about what she
found when she examined A.G., specifically that there was red erythema or skin
breakdown throughout A.G.'s "private area." She also testified as to how the hymen is
not injured through sexual assault. McLaughlin explained that the reason a sexual
offender would commit the offense in the manner alleged in this case was to avoid
causing physical pain to the child and to decrease the possibility that the child will "cry or
13
McLaughlin described the "female sexual organ" as including the labia, the vagina, where the
hymen is located, and the cervix.
51
run away or tell."
At the motion for new trial hearing, when asked if counsel believed "it is admissible
for an expert witness to testify [about] what most offenders do?", counsel responded, "Not
in that context." Counsel explained that "[he] did not feel that that [testimony] was
particularly objectionable at the time," and that it did not fall into the category of "what
most sex offenders do." According to counsel, his "appreciation of [McLaughlin's]
answer to that question was that it fell into the parameters of what the prosecutor asked
her and [he believed] it was a proper question." Counsel continued testifying that "how
most sex offenders commit their offense" was not the question asked. Rather, according
to counsel, "[t]he question was why—had to do with the hymen and [McLaughlin]
expanded on the answer somewhat to included [sic] some things in there—" that he
agreed were not responsive to the question. When asked why he did not object to the
non-responsive testimony, counsel stated that he did not want to be objecting
unnecessarily and that he "just did not think it was particularly harmful at that point in
time." Cueva's counsel then asked, "Assuming for the sake of argument that the
prosecutor's question was appropriate, you do agree that the statement of how most
people commit child sex offense [sic] was improper opinion or irrelevant at that point?",
and counsel answered, "At the very least irrelevant and possibly even improper opinion."
Following the hearing, the trial court found that counsel's "failure to object to
testimony explaining the modus operandi of a typical sex offender" was not deficient
performance. Specifically, the trial court found credible counsel's "testimony that he did
not object to testimony from [McLaughlin] concerning the medical reason most sex
offenders perform the type of assault they do on small children because he did not believe
52
this testimony was harmful." The court also found that any deficient performance did not
cause prejudice "in light of the fact that the testimony provided the jury with explanations
that it could have drawn from common sense and logical inferences."
Viewing the evidence in the light most favorable to the trial judge's rulings, we
again defer to the trial court's findings of facts regarding the credibility and demeanor of
the witnesses, see Gamboa, 296 S.W.3d at 584, and conclude that the trial court's
decision that counsel's actions in this regard were not deficient and, even if they were
deficient, his actions were not prejudicial, was not an abuse of discretion. See Charles,
146 S.W.3d at 208; see also Strickland, 466 U.S. at 687. Cueva has not demonstrated
that counsel performed "below an objective standard of reasonableness" or that he was
prejudiced by counsel's deficiency, if any, on this basis. See Ex parte Briggs, 187
S.W.3d at 466.
g. Testimony by A.G.'s Mother that Cueva Assaulted Her
Cueva complains that counsel's performance was deficient when he failed to
preserve error by requesting an instruction to disregard or by moving for a mistrial after
the trial court sustained his objection to A.G.'s mother's testimony about a previous
assault.14 Cueva asserts that counsel's failure to preserve error was unintentional, not
strategic—that no sound trial strategy justified counsel's conduct.
On re-cross examination by Cueva's trial counsel, A.G.’s mother provided the
following testimony:
14
Cueva also complains that counsel's performance was deficient when he allegedly opened the
door to, elicited, and failed to object to testimony provided by A.G. that Cueva kicked and pushed her
mother. These allegations were not raised in Cueva's motion for new trial and will, therefore, be addressed
later in this opinion.
53
Q. [Counsel] You believed [A.G.] when she told you that [Cueva]
had told her not to tell anybody because he would hurt
you?
A. [A.G.'s Mother] Yes, because he had before.
Q. You believed her when she said that?
A. She's known what he has done to me.
Later, on re-direct examination, the prosecutor made the following comment to
A..G.’s mother: "You mentioned when he asked about why she was afraid that he would
hurt you. [sic] You said that she's known what he has done to me." Outside the
presence of the jury, counsel successfully objected to this line of questioning when the
trial court ruled that counsel had not opened the door to testimony regarding a previous
assault against A.G.'s mother with his earlier questioning. Although the trial court
sustained his objection, counsel did not request an instruction to disregard and did not
move for a mistrial.
Cueva relies on Robertson v. State for his contention that no sound trial strategy
justified counsel's failure to preserve error. See 187 S.W.3d at 484. In Robertson, the
court of criminal appeals concluded "that appellant's trial lawyer performed deficiently
under the first prong of Strickland for eliciting testimony from appellant at the guilt stage of
his trial that appellant was already incarcerated on two convictions that were pending on
appeal." Id. at 486. The court reasoned as following:
[I]n cases like this where appellant's self-defense claim rested
almost entirely on his credibility, the weight of authority supports a holding
that appellant's trial lawyer performed deficiently under the first prong of
Strickland by allowing the jury to hear prejudicial and clearly inadmissible
evidence [regarding two prior convictions] because this evidence could
serve no strategic value including demonstrating that appellant is not a liar.
54
Id. (citations omitted). While Robertson provides general propositions of law regarding
the admission of extraneous acts testimony and character evidence, we do not agree that
Robertson supports a conclusion that there was no sound trial strategy that would justify
counsel's conduct in this case.
Based on our review of the record, counsel may have strategically decided not to
request an instruction to disregard or a mistrial. After A.G.'s mother provided testimony
on re-cross suggesting that Cueva hurt her on a prior occasion, Cueva's counsel
immediately directed the jury’s attention to the witness and attempted to impeach her
testimony about A.G.'s truthfulness by asking, ―You never saw any indication of fear with
[A.G.] whenever you left her with him?‖, to which she responded, ―No.‖ Counsel then
asked if A.G. had come up to her and tried to tell her anything. A.G.'s mother again
responded, "No." Also, the prosecutor's comment about what Cueva had done to A.G.'s
mother, although objected to, was heard by the jury and arguably supported a strategy to
show her bias against Cueva. Finally, counsel may have had a legitimate belief that
requesting further relief would have only highlighted the objectionable testimony. See
Garcia v. State, 887 S.W.2d 862, 881 (Tex. Crim. App. 1994) (en banc), overruled on
other grounds, Hammock v. State, 46 S.W.3d 889, 893 (Tex. Crim. App. 2001).
The trial court found that counsel’s ―failure to ask for an instruction to disregard or a
mistrial regarding improper testimony by [A.G’s] mother about an extraneous assault‖
was deficient performance. The trial court also found no prejudice, setting out the
following finding:
However, the [c]ourt finds that any deficient performance did not cause
prejudice, and specifically that there is not a probability sufficient to
undermine confidence in the outcome that, but for his failure, the result of
55
the proceeding would have been different, in light of the fact that similar
testimony had been elicited elsewhere and was consistent with [counsel’s]
strategy to show that [A.G.’s] mother and grandmother were biased against
Cueva to the point that they compelled [A.G.] to fabricate the present
charges.15
As discussed above, the record supports a finding that counsel made strategic
decisions regarding this testimony. While decisions rooted in strategy typically do not
constitute deficient performance, Strickland, 466 U.S. at 689, we defer to the trial court's
finding of deficient performance in this instance because, affording deference to the trial
court's underlying historical fact determinations, see Escobar, 227 S.W.3d 127, we agree
that the error, if any, was not prejudicial. Similar testimony had been elicited elsewhere,
and counsel's actions were consistent with his trial strategy to show bias, a strategy that
should have been apparent to the jury throughout the trial. Therefore, there was not a
probability sufficient to undermine confidence in the outcome that, but for counsel's failure
to ask for an instruction or a mistrial, the result of the proceeding would have been
different. See Smith, 296 S.W.3d at 340. Therefore, counsel's error was not so serious
as to deprive Cueva of a fair trial. See id.
h. Cueva Expressed Interest in Having Anal Sex with A.G.'s Mother
Cueva contends that counsel also performed deficiently when he did not object to
testimony from A.G.'s mother that Cueva expressed an interest in having anal sex with
her, i.e., testimony regarding extraneous conduct. See Lopez v. State, 288 S.W.3d 148,
164 (Tex. App.—Corpus Christi 2009, pet. ref'd). Cueva asserts that this testimony was
15
Cueva testified that he told Detective Gonzalez that he did not do anything to A.G., that A.G.'s
grandmother did not like him and was mad when Cueva, A.G.'s mother, and A.G. moved to Robstown, and
that A.G.'s mother fabricated her story about what she saw in the bedroom. Cueva presented a fabrication
defense and argued that A.G. was improperly influenced.
56
irrelevant to the issue of whether he anally assaulted A.G. See TEX. R. EVID. 402, 404;
Casey v. State, 215 S.W.3d 870, 879 (Tex. Crim. App. 2007). Cueva further argues that,
with this testimony, the State portrayed him as a sexual deviant, encouraging the jury to
believe that he anally assaulted A.G. because he had expressed interest in having anal
sex with A.G.'s mother. We construe this last complaint as a rule 403 argument—that,
even if the evidence is relevant, its prejudicial nature far outweighs the relevance of
Cueva having anal sex with A.G.'s mother. See TEX. R. EVID. 403; Casey, 215 S.W.3d at
879.
At trial, during direct examination, A.G.'s mother agreed that Cueva had expressed
an interest in anal sex, which she did not want to do. When asked if she and Cueva
engaged in anal sex, A.G.'s mother answered, "I want to say we tried it about twice."
In support of his argument, Cueva cites to Fox v. State, Brown v. State, and Doles
v. State. See Fox, 283 S.W.3d 85, 93-96 (Tex. App.—Houston [14th Dist.] 2009, pet.
ref'd); Brown, 974 S.W.2d 289, 293-94 (Tex. App.—San Antonio 1998, pet. ref'd) (op. on
reh'g); Doles, 786 S.W.2d 741, 746 (Tex. App.—Tyler 1989, no pet.). Each case,
however, is distinguishable from the present case because each involves a counsel's
reoccurring failure to object to numerous instances of irrelevant testimony involving, for
example, homosexual experiences, promiscuity, and instability in the family–-numerous
extraneous and prejudicial matters which had a substantial and injurious effect on the
verdict. See Fox, 283 S.W.3d at 93-96; Brown, 974 S.W.2d at 293-94; Doles, 786
S.W.2d at 746. Cueva, in contrast, complains of one instance of testimony involving
what is arguably irrelevant and inadmissible evidence.
57
Furthermore, at the hearing on Cueva's motion for new trial, counsel provided the
following testimony responsive to questions about Cueva engaging in anal sex with A.G.'s
mother:
Q. You did [not] object to any of that testimony did you, sir?
A. No.
Q. How was testimony that Mr. Cueva had expressed an interest in
consensual anal sex with his adult sexual partner relevant to whether
he committed the offense of aggravated sexual assault of a child with
A.G.?
A. It probably was not particularly relevant but I knew where the
prosecutor was going with it and expected that it would be allowed
because of the context of what she claims she had seen in the room.
Q. So even though you recognize it probably was not relevant, you did
not object because you assume the court would overrule the
objection?
A. I had strategic reasons for discussing that and I knew I was going to
discuss that with her as well.
Q. Please articulate those strategic reasons.
A. They had been together in that room for a couple of weeks prior to
the incident taking place. Mr. Cueva had explained to me that he
and [A.G.'s mother] had engaged in anal sex in that room, and it was
my theory that in all probability [A.G.] had observed this taking place
and she was relating what had taken place to her or she had seen
taken place between her mother and Charles rather than anything
that had actually taken place with her. I think I told you that when
we talked on the phone the other day.
Q. So you made the argument to the jury that A.G. was simply outcrying
about things that she had observed and not things that had really
happened to her?
A. Yeah, I don't remember. Obviously, if you are asking the question, I
probably did not argue that to the jury.
58
Q. Isn't it true that when we spoke on the telephone and I asked you
whether you intended for the jury to hear that Charles had expressed
an interest in anal sex with [A.G.'s mother], you said that was not
strategic?
A. It was not strategic that he had expressed the interest but that they
had engaged in it. I was not interested in the jury hearing that he
had an interest in anal sex, no.
Q. And he denied that he had anal sex, correct?
A. During his cross-examination or—
Q. Let me just stick with what we spoke about. I asked you, is it fair to
say that that's not something that you intended for the jury to hear,
meaning the testimony regarding—
A. His interests in anal sex, yes.
Q. And you said that was not strategic?
A. That's correct.
Q. Then didn't you tell me once that evidence came in, you reacted to it
and dealt with it the best that you could?
A. Yeah. That's also true.
Q. But you would have rather it not come in at all because then you
would not had to deal with it. Fair to say?
A. Yeah.
A defense counsel's failure to object to certain improper evidence is not by itself an
indication of ineffective assistance of counsel. Long v. State, 502 S.W.2d 139, 141 (Tex.
Crim. App. 1973). "Counsel does not render ineffective assistance because he used
what another would consider a poor trial strategy." Id. In this case, counsel may not
have objected to the complained-of testimony in an effort to provide an alternate
explanation for A.G.'s allegations—that A.G. was relating what she had seen taken place
59
between her mother and Cueva rather than anything that had actually taken place with
her. This is supported by counsel's cross-examination of A.G.'s mother where he elicited
testimony from her that she and Cueva had been sexually active at times when the
children were there, implying that A.G. may have learned from this some of the things that
she told the psychologist that were not appropriate for a five-year-old to know.
Moreover, the trial court found counsel's testimony credible regarding his failure to
object to the testimony in question from A.G's mother because it was his strategy to show
that A.G. was relating what she had seen take place between Cueva and her mother,
rather than what Cueva had done to her. The court found that this was reasonable trial
strategy and that counsel's failure to object was not deficient, and if it was, it did not cause
prejudice in light of the fact that the acts in question are legal and not uncommon between
consenting adults.
Therefore, deferring to the trial court's findings of facts regarding the credibility and
demeanor of the witnesses and viewing the evidence in the appropriate light, see
Gamboa, 296 S.W.3d at 584, we again conclude that the trial court's decision that
counsel's actions were not deficient and, even if they were deficient, they were not
prejudicial, was not an abuse of discretion on this ground. See Charles, 146 S.W.3d at
208; see also Strickland, 466 U.S. at 687. Cueva has not demonstrated that counsel
performed "below an objective standard of reasonableness" or that he was prejudiced by
counsel's deficiency, if any, on this basis. See Ex parte Briggs, 187 S.W.3d at 466.
i. Jury Charges
Finally, through his motion for new trial, Cueva challenged counsel's failure to
object to the guilt-innocence charge on the basis that Cueva was allegedly convicted on a
60
non-unanimous vote. He also asserts that counsel's failure to object to an instruction in
the punishment charge which improperly instructed the jury on how to calculate his parole
eligibility was deficient performance and, thus, harmed him.
(i.) Guilt-Innocence Charge
On appeal, Cueva first contends that because counsel did not object to the
guilt-innocence jury charge which Cueva claims improperly authorized conviction in
Count 4 on a non-unanimous verdict, his performance was deficient. Having concluded,
in the first issue, that no charge error existed that violated Cueva's right to unanimity in his
verdict in Count 4, we now conclude that counsel's failure to object to the charge was not
deficient performance. This is supported by the following motion for new trial findings:
(1) counsel's "failure to object that the jury charge regarding Count 4,[ 16] improperly
authorized conviction on a non-unanimous verdict" was not deficient; and (2) even if
counsel's non-action was deficient, it did not cause prejudice "in light of the fact that
penetration subsumes the act of contact and there is no dispute that the evidence
presented that [A.G.], if penetrated, was also contacted by Cueva's sexual organ."
(ii.) Punishment Charge
Cueva also complains that counsel's failure to object to a portion of the punishment
charge that erroneously instructed the jury on how Cueva's parole eligibility would be
calculated constituted deficient performance. He further contends that counsel's failure
to object prejudiced him because the erroneous parole charge allowed the jury to grossly
16
At the motion for new trial hearing the parties agreed and the trial court acknowledged that
although the motion referred to Count 6, it should be correctly referred to as Count 4, and we will do
likewise.
61
miscalculate his parole eligibility to his detriment.17
At the hearing on the motion for new trial, counsel testified that his failure to object
was inadvertent. Agreeing that it was "a harmful [c]harge," counsel testified that he
"read that portion, but the way it was phrased escaped [him] at the time." He also agreed
that if he had "caught it," he would have brought it to the court's attention." When asked
who prepared the punishment charge, he responded as follows: "They are usually
prepared by the D.A.'s office and then provided to the court. I can't say for certain that
that is what took place in this case. Sometimes the court manager has a Charge that is
used. That's typically how it is done."
As set out in its findings of fact, the trial court found credible counsel's "testimony
that he inadvertently failed to object to that portion of the punishment charge which
incorrectly instructed the jury on good[-]conduct time," and that this conduct was not
deficient. The trial court further found that error, if any, regarding the application of good
conduct time did not cause prejudice "in light of the fact that the charge instructed the
jurors that they were not to consider how good[-]conduct time and the parole law might be
applied to Cueva, neither party argued the concept of good[-]conduct time or how it might
be considered in evaluating parole eligibility …, and the nature of the offenses warranted
lengthy sentences."
Again, deferring to the trial court's findings of facts regarding the credibility and
demeanor of the witnesses and viewing the evidence in the light most favorable to the trial
17
We overruled Cueva's second issue, concluding that although the trial court erred when it
included "plus any good conduct time earned" in the third paragraph of its parole instruction, there was no
egregious harm. See Ngo v. State, 175 S.W.3d 738, 743-44 (Tex. Crim. App. 2005) (explaining that when
no objection is made to what is determined to be charge error, we may reverse only if the record shows
egregious harm).
62
judge's rulings, see Gamboa, 296 S.W.3d at 584, we conclude that the trial court's
decision that counsel's actions regarding the alleged charge error at the guilt-innocence
stage and the alleged charge error at the punishment stage were not deficient, and even
if they were deficient, they were not prejudicial, was not an abuse of discretion. See
Charles, 146 S.W.3d at 208; see also Strickland, 466 U.S. at 687; see also Robertson,
187 S.W.3d at 483 (explaining that one is ensured the right to reasonably effective
assistance of counsel, not perfect assistance). Cueva has not demonstrated that
counsel performed "below an objective standard of reasonableness" or that he was
prejudiced by counsel's deficiency, if any, on this basis. See Ex parte Briggs, 187
S.W.3d at 466.
2. Additional Claims
In his third and fourth issues, Cueva asserts additional claims of ineffective
assistance of counsel that were raised either (1) for the first time at the motion for new trial
hearing and objected to by the State, or (2) for the first time on appeal. We will apply the
Strickland standard of review to these claims and will not review the additional claims
through the prism of a motion for new trial standard. Gill, 967 S.W.2d at 542.
a. Guilt-Innocence Stage
(i.) Oral Statements
Cueva argues counsel's assistance was ineffective because he did not object to
testimony from Detective Gonzalez, the interrogating officer, regarding oral statements
Cueva made while being questioned.18 These oral statements, however, were similar to,
18
Gonzalez testified that Cueva told him that he did not know why he "did it," but that it was
probably because he had been molested as a child. Gonzalez stated that Cueva told him that he was sorry
63
if not the same as, admissions made by Cueva in his written statement, admitted at trial
as State's Exhibit #3. The failure to object to cumulative evidence is harmless and will
not support a claim of ineffective assistance of counsel. See Ingham v. State, 679
S.W.2d 503, 508 (Tex. Crim. App. 1984) (en banc); Duhart v. State, 890 S.W.2d 187, 190
(Tex. App.—Corpus Christi 1994, no pet.).
Counsel could also have made a reasonable decision to allow the statements into
evidence, along with the circumstances under which they were made, in order to
challenge the credibility of the police and, by extension, the credibility of all those
responsible for gathering and presenting evidence against him. Under the
circumstances and affording great deference to counsel's ability, we cannot conclude that
it was not sound and reasonable strategy on the part of counsel to decide to not object to
testimony regarding Cueva's oral statements in order to show how the investigation had
been mishandled. See Jaynes, 216 S.W.3d at 851. Therefore, we conclude that
counsel did not perform "below an objective standard of reasonableness" in this regard,
and counsel's decision to not object to this testimony was not deficient. See Ex parte
Briggs, 187 S.W.3d at 466.
(ii.) Cueva Minimized His Conduct in His Written Statement
Cueva also contends that his trial counsel was ineffective for failing to object to the
following questions asked of Detective Gonzalez by the State:
Q. Have you found that defendants will sometimes minimize what they
did?
for what he did; he did not penetrate A.G.; he touched her more than ten times over a three-year period; he
touched her "butt," got aroused, and kissed her lips; and he once let her touch his penis. Similar
statements are found in Cueva's written statement.
64
A. Yes, they do.
Q. Did you see that in this case?
A. Yes, I did.
Q. How?
A. As far as him saying, Oh, I just touched her. After the victim
outcried to her mother, saying that she was penetrated, he
minimized it, saying, No, all I did was touch her. I never penetrated
her. I just let her touch me. That's minimizing the situation.
Cueva asserts that, from this testimony, one could infer that Cueva was not telling the
truth, and thus Detective Gonzalez's testimony would have been inadmissible, over timely
objection, under rules of evidence 701 and 702. We disagree.
Police officers may generally offer lay-opinion testimony concerning matters about
which they have personal knowledge and experience in their employment as a law
enforcement officer and specifically concerning the meaning of certain behavior of
criminal suspects they encounter. See Fairow v. State, 943 S.W.2d 895, 898 (Tex. Crim.
App. 1997) (en banc). The responses elicited from Detective Gonzalez do not involve a
direct opinion that Cueva lied in his statement or that Cueva was guilty of the offense.
Rather, Detective Gonzalez testified to the facts he observed—that Cueva admitted he
touched the child but did not penetrate her and that he let her touch him. Detective
Gonzalez explained that a defendant will do this in an attempt to "minimize the situation."
For this reason, we cannot conclude that Cueva has demonstrated that counsel
performed below an objective standard of reasonableness when he did not object to this
testimony. See Ex parte Briggs, 187 S.W.3d at 466.
65
(iii.) Victim-Impact Testimony
Cueva argues that counsel's performance was also deficient when he did not
object to testimony elicited by the State from A.G.'s mother that, because of the incident,
she gave up a job in a "high school to shadow a special ed student," a job for which she
had just been hired, and that she "gave up everything" including a wedding and a job.
Cueva contends that this victim-impact testimony was improper at the guilt-innocence
stage and that counsel had no sound strategic reason for not objecting.
In support of his argument, Cueva cites Miller-El v. State. 782 S.W.2d 892, 895
(Tex. Crim. App. 1990) (en banc). Concluding that victim-impact testimony did not have
"any tendency to make more or less probable the existence of any fact of consequence at
the guilt stage of trial," the Miller-El Court suggested that if victim-impact testimony was
relevant to any guilt issue, it would be admissible at the guilt stage of trial. Id. (citing TEX.
R. EVID. 401) (defining "relevant evidence" as evidence having any tendency to make the
existence of a fact of consequence more or less probable); Longoria v. State, 148 S.W.3d
657, 659-60 (Tex. App.—Houston [14th Dist.] 2004, pet. ref'd) (concluding that victim
impact testimony is admissible at the guilt-innocence stage as a "circumstance of the
offense").
The State asserts, and we agree, that, in this case, the mother's testimony
regarding the impact of the crime on her was relevant. Cueva made it relevant as
rebuttal to his defense that A.G.'s mother manipulated A.G. to fabricate the assault so that
they could get back into the good graces of her family. Based on the testimony that she
lost both her wedding plans and her new job, A.G.'s mother would not be gaining anything
by manipulating A.G. to make these charges. Therefore, evidence of the impact of the
66
incident on A.G's mother, although typically irrelevant, did, in this case, have a tendency
to make more or less probable a fact of consequence at the guilt stage; that is, whether
Cueva committed the crime at all. See Miller-El, 782 S.W.2d at 895. Since this
testimony would have been admissible on that basis, we cannot say that Cueva's trial
counsel's failure to object to the testimony fell below the objective standard of
professional norms. See Ex parte Briggs, 187 S.W.3d at 466.
(iv.) Testimony that Cueva Assaulted A.G.'s Mother
For the first time on appeal, Cueva complains of counsel’s failure to object to
testimony provided by A.G on cross-examination, testimony which Cueva alleges
concerned a prior assault.19 He claims that his trial counsel should have objected to the
testimony as non-responsive and as a violation of rule 404(b). See TEX. R. EVID. 404(b)
(providing that extraneous-offense evidence is inadmissible in order to show action in
conformity with character). We are not persuaded by this argument because the
testimony provided by A.G. detailed actions that occurred after her mother observed the
complained-of incident.
A.G.'s testimony reveals that her mother confronted Cueva about his actions, and
then they fought. A.G. and her brother were sleeping in another room and were
awakened when their mother yelled and screamed at Cueva. A.G. saw Cueva and her
19
By this issue, Cueva also contends that counsel did not request, and the State did not provide,
notice of extraneous offenses and acts of misconduct that it intended to offer. He states in a conclusory
fashion that counsel's failure to request such notice was ineffective assistance. Cueva also summarily
asserts that counsel’s performance was deficient because he opened the door to and elicited this testimony
from A.G. He cites no specific supporting authority, however, and provides no explanatory argument for
these contentions. In accordance with rule 38.1(i) of the Texas Rules of Appellate Procedure, we will only
consider contentions that are supported by clear and concise arguments with appropriate citations to
authorities and to the record. TEX. R. APP. P. 38.1(i). Because these assertions are inadequately briefed,
we will not consider them.
67
mother hit each other. Cueva pushed her mother into the wall. According to A.G.'s
testimony, the police caught Cueva as he was leaving the house, after the fighting and
yelling occurred. This testimony did not concern a prior assault, as Cueva asserts.
Instead, this testimony was about the night in question.
Any conduct on the part of a person accused of a crime subsequent to its
commission, which indicates a consciousness of guilt may be received as a circumstance
tending to prove that he committed the act with which he is charged. See Torres v.
State, 794 S.W.2d 596, 598 (Tex. App.—Austin 1990, no pet.). Specifically, unsettled
demeanor may show a consciousness of guilt. Lassaint v. State, 79 S.W.3d 736, 744
(Tex. App.—Corpus Christi 2002, no pet.). In addition, attempts to tamper with a
witness, and any criminal act designed to reduce the likelihood of prosecution, constitutes
evidence of "consciousness of guilt" on the part of the defendant. See Gonzalez v.
State, 117 S.W.3d 831, 842 (Tex. Crim. App. 2003); Wilson v. State, 7 S.W.3d 136, 141
(Tex. Crim. App. 1999); Ransom v. State, 920 S.W.2d 288, 299. (Tex. Crim. App. 1996)
(en banc) (op. on reh'g).
In the present case, evidence that Cueva assaulted A.G.'s mother immediately
after she confronted him was relevant to show his unsettled and combative demeanor
after the incident, which arguably indicated a consciousness of guilt. See Lassaint, 79
S.W.3d at 744; Torres, 794 S.W.2d at 598. And, as an assault against an adult witness,
it could be seen as tampering with the witness. See Gonzalez, 117 S.W.3d at 842.
Accordingly, the evidence was admissible, and although unexpectedly volunteered by the
witness on cross-examination, Cueva's trial counsel was not ineffective for failing to
object.
68
Affording great deference to trial counsel's ability and indulging "a strong
presumption that counsel's conduct fell within the wide range of reasonable professional
assistance,‖ see Strickland, 466 U.S. at 689, and that his actions were the result of sound
and reasonable trial strategy, Jaynes, 216 S.W.3d at 851, we presume that trial counsel's
performance was constitutionally adequate as to this complaint. See Morales, 253
S.W.3d at 696-97 (quoting Goodspeed, 187 S.W.3d at 392). Cueva has not shown
otherwise, and the challenged conduct is not "so outrageous that no competent attorney
would have engaged in it." See Goodspeed, 187 S.W.3d at 392.
(v.) Prosecutor's Arguments at Guilt-Innocence Stage
(a). Tactic of Defense Attorneys to Put Victim on Trial
Cueva complains that counsel should have objected when the prosecutor argued
during summation that he used to be a defense lawyer and that "a standard tactic of
defense attorneys, when your victim has done something indefensible, [is to] put the
victim on trial instead and that's just what Mr. Cueva has tried to do." Cueva asserts that
counsel's failure to object to this argument constituted deficient performance and no
sound strategy could justify this omission.
The court of criminal appeals has condemned "final arguments that constitute
uninvited and unsubstantiated accusations of improper conduct directed at a defendant's
attorney." Gomez v. State, 704 S.W.2d 770, 771 (Tex. Crim. App. 1985) (concluding
that the prosecutor's argument that a defense lawyer brought witnesses into court to
"manufacture evidence" to get his client "off the hook" improperly struck at the defendant
over the shoulders of counsel). However, the court of criminal appeals has noted a
difference between improper remarks which are directed at defense counsel himself and
69
improper remarks which attack or disparage counsel's argument or theory of defense.
See Coble v. State, 871 S.W.2d 192, 203-05 (Tex. Crim. App. 1993) (en banc) (approving
the prosecutor's argument concerning a saying among lawyers that if you have neither
the facts or the law on your side, "you argue something ridiculous"); Gorman v. State, 480
S.W.2d 188, 190 (Tex. Crim. App. 1974) (explaining that the prosecutor's comment
"[d]on't let him smoke-screen you, he has smoke-screened you enough" was in response
to defense counsel's argument attempting to minimize the defendant's prior criminal
record).
In this case, the prosecutor's argument, aside from the irrelevant and
inconsequential fact that the prosecutor used to be a defense attorney, did not inject any
new facts or speculation into the argument that were not already before the jury. After
arguing that it is a "standard tactic of defense attorneys, when your victim has done
something indefensible, [to] put the victim on trial," the prosecutor continued with the
following: "He wants you to believe there's a grand conspiracy here. It involves this
little girl, the police, the S.A.N.E. nurse, the little girl's mother. They all conspired to jack
him up, unfairly, unjustly."
The argument was a summary of the defense that Cueva presented, and it
attacked the defense tactic and not the defense attorney himself. Moreover, whether
Cueva's trial counsel labeled it a "conspiracy" defense or not, Cueva's own testimony and
the arguments made by his counsel advanced the defensive theory that A.G.'s mother
was attempting to get rid of Cueva so that A.G.'s mother could then return to, and be
accepted by, her own family. As in Coble and Gorman, the prosecutor, in this case, was
entitled to attack this theory as an attempt to shift the blame to A.G.
70
(b). "Sexual Release"
Cueva asserts that counsel's performance was also deficient when he failed to
object to the following argument made by the prosecutor:
Also keep in mind that on this date in question, [A.G.'s mother] and
the defendant had not had sex. He was looking to this child for sexual
release. [A.G.'s mother] was tired. She was exhausted that day.
Presumably she was not going to stay up and have sex with him. So who
did he turn to? He turned to the daughter.
Cueva contends that no sound strategy could justify this omission.
The four permissible areas of closing argument include: summation of the
evidence; reasonable deduction from the evidence; responses to argument of opposing
counsel; and pleas for law enforcement. See Jackson v. State, 17 S.W.3d 664, 673-74
(Tex. Crim. App. 2000); Alejandro v. State, 493 S.W.2d 230, 231-32 (Tex. Crim. App.
1973). Relevant to this case, the court of criminal appeals has repeatedly stated "that
counsel may in argument draw from the facts in evidence all inferences that are
reasonable, fair, and legitimate and he will be afforded latitude without limitation in this
respect as long as his argument is supported by evidence and offered in good faith."
Andujo v. State, 755 S.W.2d 138, 144 (Tex. Crim. App. 1988) (en banc). And in making
reasonable deductions from the evidence, the trial court may properly ask the jury to
consider the circumstances surrounding the crime and what might have been on the
defendant's mind at the time. See Hudson v. State, 675 S.W.2d 507, 511 (Tex. Crim.
App. 1984) (en banc); Gonzales v. State, 831 S.W.2d 491, 494 (Tex. App.—Houston
[14th Dist.] 1992, pet. ref'd).
In the present case, A.G.'s mother admitted, in her trial testimony, that she took a
short shower that evening because she was "just exhausted." In addition, Cueva
71
testified that A.G.'s mother also complained that her stomach hurt and that A.G. wanted
her mother to sleep with her that evening. The prosecutor's argument that Cueva then
turned to A.G. for sex did not inject facts outside the record as now urged by Cueva.
Rather, the argument asked the jury to consider the circumstance that A.G.'s mother was
tired and not feeling well and, as a reasonable deduction, that she was probably
unavailable and that Cueva might have been motivated to seek sex instead from A.G.
Thus, we conclude the argument in question was not so clearly outside the wide latitude
given to the prosecutor in closing argument that counsel was ineffective for failing to
object.
Accordingly, affording great deference to counsel's ability, see Jaynes, 216
S.W.3d at 851, we conclude that there was nothing to which counsel should have
objected. Counsel did not perform "below an objective standard of reasonableness" in
this regard, and thus, counsel's decision not to object to the complained-of prosecutorial
arguments made during the guilt-innocence stage of trial was not deficient. See Ex parte
Briggs, 187 S.W.3d at 466.
b. Punishment Stage
(i.) Testimony and Prosecutor's Argument about Changes in the Law
Cueva claims that he was denied effective assistance of counsel at the
punishment stage when counsel did not object to testimony provided by Probation Officer
Kimberly Escamilla regarding changes in the law. Cueva asserts that because certain
legislative amendments had not taken effect at the time of the offenses, the challenged
testimony was irrelevant and improper. See TEX. R. EVID. 401, 402. He also complains
that counsel's performance was deficient when he did not object to the prosecutor's
72
summation of those changes.
Specifically, Cueva asserts that counsel should have objected when the
prosecutor, during cross-examination, elicited from Officer Escamilla that (1) the law
regarding sex offenses changed on September 1, 2007: (2) subsequent to that change,
a defendant convicted of aggravated sexual assault of a child younger than age six faces
a minimum sentence of twenty-five years; (3) a defendant cannot receive probation from
a jury for sex offenses committed after that date; and (4) Cueva benefitted by committing
the offenses before the law changed. See Acts 2007, 80th Leg., ch. 593, ' 1.18
(changing the minimum term of imprisonment from five to twenty-five years for the
aggravated sexual assault of a child younger than six years at the time of the offense)
(current version at TEX. PENAL CODE ANN. ' 22.021(f)(1)); Acts 2007, 80th Leg., ch. 593, '
1.06 (eliminating the possibility of probation for the conviction of indecency with a child,
aggravated sexual assault of a child, or sexual assault, and the victim of the offense is
younger than fourteen years when the offense is committed) (current version at TEX.
CODE CRIM. PROC. ANN. art. 42.12, ' 4(d)(5)); see also Acts 2007, 80th Leg., ch. 593, '
4.01(a) (explaining that the change in law made by this Act applies only to an offense
committed on or after September 1, 2007, and an offense committed before September 1,
2007, is covered by the law in effect when the offense was committed). In addition,
Cueva contends defense counsel should have objected when the prosecutor argued that
the jury needed to do the right thing, which was to assess "life in prison" "because the
minimum sentence for one count of aggravated [sexual assault] of a child is now 25 years
prison," and the Legislature has changed the law and decided that "someone who would
rape a six[-]year[-]old child should no longer receive probation … [b]ecause pedophiles
73
are dangerous."
Our review of the record shows that the State cross-examined Probation Officer
Escamilla about a change in the law that became effective shortly after the date of the
aggravated sexual assault in question, a change which would have increased the
punishment for this offense from a five-year minimum to a twenty-five-year minimum and
eliminated the possibility of probation for these offenses. Cueva's counsel did not object
to this testimony. In addition, during her summation, the prosecutor commented on this
fact, without objection.
In a non-capital felony trial, evidence is admissible during the punishment stage if
"the court deems [it] relevant to sentencing." TEX. CODE CRIM. PROC. ANN. art. 37.07, '
3(a)(1). The court of criminal appeals recently addressed the relevance of punishment
evidence as follows:
The Legislature did not define the term "relevant" in the Code of
Criminal Procedure, and beyond the few items enumerated in Article 37.07,
it has not given any guidance as to what evidence is relevant to
punishment. Borrowing from the definition of "relevant" in Texas Rule of
Evidence 401 is of little avail because the factfinder's role during the guilt
phase is different from its role during the punishment phase. Unlike the
guilt phase, where the factfinder must decide discrete factual issues,
deciding what punishment to impose is a "normative process, not
intrinsically factbound." Thus, what is "relevant" to assessing punishment
is "a function of policy rather than relevancy." Evidence is relevant if it
helps the factfinder decide what sentence is appropriate for a particular
defendant given the facts of the case.
Hayden v. State, 296 S.W.3d 549, 552 (Tex. Crim. App. 2009) (citations omitted).
It is clear that punishment against Cueva was to be assessed under the range of
punishment for the offenses at the time they were committed, prior to September 1, 2007.
However, because what is "relevant" to assessing punishment is a "function of policy
74
rather than relevancy" and deciding what punishment to impose is a "normative process,
not intrinsically factbound," evidence involving subsequent changes in the law is arguably
relevant to help the jury decide what sentence is appropriate for a particular defendant
given the facts of the case, even though the exact the range of punishment is provided for
by the applicable law. Hayden, 296 S.W.3d at 552. Importantly, Cueva provides no
authority that suggests this evidence is so clearly irrelevant and improper that trial
counsel may be held ineffective for failing to object to its admission or to the prosecutor's
argument that includes that information, and we find none. Where there is no statute or
case law that suggests this evidence is inadmissible, the law is unsettled, and we cannot
conclude that trial counsel was ineffective for failing to object at trial. See Ex parte
Varelas, 45 S.W.3d 627, 637 (Tex. Crim. App. 2001) (en banc); see also Ex parte
Roemer, 215 S.W.3d 887, 894 (Tex. Crim. App. 2007); Ex parte Chandler, 182 S.W.3d
350, 359 (Tex. Crim. App. 2005).
In addition, proper jury argument includes, among other things, a plea for law
enforcement and a summation of the evidence presented at trial. Alejandro, 493 S.W.2d
at 231-32; Jackson, 17 S.W.3d at 673-74. Based on our review of the record, including
the context in which the prosecutor made this argument, it would have been reasonable
for counsel to interpret the summation as a plea for law enforcement or as a summation of
the evidence. See Alejandro, 493 S.W.2d at 231-32; Jackson, 17 S.W.3d at 673-74.
Therefore, in this regard as well, we would not conclude that counsel's performance was
deficient.
(ii.) Testimony Requesting that Cueva Receive a Life Sentence
Cueva asserts that because counsel elicited and failed to object to requests from
75
prosecution witnesses that Cueva receive a life sentence, his performance was deficient.
Cueva argues that no sound strategy justifies counsel’s conduct.
Counsel elicited from A.G’s grandmother that she wanted Cueva to pay for what he
did to her granddaughter by spending the rest of his life in prison and that she would not
be happy unless he received a life sentence. Counsel then elicited an affirmative
response when he asked if the witness was ―not going to be happy unless he spends the
rest of his life in prison.‖ Later the prosecutor elicited from A.G.’s great-grandmother that
justice would be the maximum penalty. Counsel did not object to this testimony. Other
testimony at the punishment phase brought out that A.G.’s family did not like or approve
of Cueva, even before the incidents for which he was convicted occurred. During his
argument, Cueva's counsel then suggested that these witnesses were not seeking
justice, but vengeance, in contrast to A.G. herself, who counsel claimed "did not come up
here and tell you to throw Charles Cueva away for the rest of his life. Because the child
can see the good, the redeemable in us."
The record supports a conclusion that it was sound trial strategy to show the bias
of the prosecution witnesses in order to demonstrate that their requested punishment was
unreasonable and in sharp contrast to what the defense believed would be a just
outcome—that being to place Cueva on probation. Counsel made strategic decisions
regarding this testimony, and decisions based in strategy do not constitute deficient
performance. See Strickland, 466 U.S. at 689. Cueva has not shown, in the record,
that counsel's conduct was not the product of a strategic decision, and we cannot
conclude that counsel’s conduct, in this regard, was so outrageous that no competent
counsel would have engaged in it. See Morales, 253 S.W.3d at 696-97.
76
(iii.) Opinion Testimony that Sex Offenders Cannot be Rehabilitated
Cueva contends that counsel's failure to object to the Probation Officer Escamilla’s
opinion that sex offenders cannot be rehabilitated constituted deficient performance and
that no sound strategy would justify this omission. 20 Cueva also complains that
counsel’s performance was deficient because he did not object to the State's alleged
failure to qualify Officer Escamilla.
On direct examination, defense counsel established, through Officer Escamilla's
testimony, that ―some sex offenders who are on probation do complete the probation" and
that "[s]ome don’t‖; that there are ―people though who end up not violating the probation,
satisfactorily completing the probation, and being discharged from the program.‖ On
cross-examination, after testifying that she was not familiar with the rate of recidivism or
rehabilitation of sex offenders, Officer Escamilla agreed with the State that she was aware
that sex offenders cannot be rehabilitated and because they cannot be rehabilitated, the
most a probation officer can do is try to get them to change their behavior. However,
Officer Escamilla later testified on cross-examination that she was not familiar with a sex
offender’s compulsion to offend. And later on re-direct, when defense counsel asked
Officer Escamilla whether Cueva’s admission to some of the charges indicated that he
was likely to be a good candidate for probation, Officer Escamilla testified that "if he did
confess to some of the offenses then I would say, yes, that he is … seeking treatment,"
and if he did request help for what he had done to A.G., she agreed that such a desire
20
Cueva also generally contends that counsel's performance was deficient because he failed to
object to the prosecutor's closing argument that sex offenders "are not ever rehabilitated." However,
Cueva cites no specific supporting authority and provides no explanatory argument for this contention. We
will not consider this portion of Cueva's argument because it is inadequately briefed. See id.
77
played a big part in determining whether he would be a successful candidate for
probation. Counsel was also able to overcome the State's objection that the witness had
not been qualified to provide such testimony in response to counsel's question because
the trial court determined the State had already gone into this area of questioning.
A trial court may admit expert testimony if "scientific, technical, or other specialized
knowledge will assist the trier of fact to understand the evidence or to determine a fact in
issue." TEX. R. EVID. 702. For an expert's opinion to be admissible, the proponent must
establish that the expert is qualified to render the opinion and that the testimony is
relevant and based on a reliable foundation. Acevedo v. State, 255 S.W.3d 162, 168
(Tex. App.—San Antonio 2008, pet. ref'd). A probation officer may give an opinion on a
defendant’s suitability for probation, either as a lay opinion under rule of evidence 701 or
as an expert opinion under rule 702, based on her personal knowledge of the defendant.
Ellison v. State, 201 S.W.3d 714, 722-23 (Tex. Crim. App. 2005); see TEX. R. EVID. 701 &
702. Defense counsel is not required to challenge the qualifications of every expert who
testifies at trial. Easley v. State, 978 S.W.2d 244, 251 (Tex. App.—Texarkana 1998, pet.
ref’d). This is true especially when the State could easily have demonstrated the
expert’s qualifications if called upon to do so and an objection would only have wasted the
court’s time or antagonized the jury. Id.
Although it appears from the record that Officer Escamilla’s qualifications were
established or at least conceded, even if they were not, we cannot conclude that counsel
was required to challenge her qualifications. See id. The record is silent regarding
whether the State could easily have proven Officer Escamilla’s qualifications if they had
been challenged at trial and an objection would have wasted the trial court’s time or
78
antagonized the jury. See id. Therefore, we cannot conclude that trial counsel’s
performance was deficient when he did not object that the State did not establish Officer
Escamilla's qualifications. See Acevedo, 255 S.W.3d at 168.
Regarding the admission of rehabilitation testimony, Cueva relies on DeLeon v.
State. 322 S.W.3d 375, 378, 384-87 (Tex. App.—Houston [14th Dist.] 2010, pet.
denied). The DeLeon Court affirmed DeLeon’s conviction but found that his counsel was
ineffective during the punishment stage for presenting a probation officer as a witness
and failing to object to the State’s line of questions that resulted in ―highly inflammatory
testimony‖. Id. at 385-86. Cueva claims that DeLeon is instructive because his case is
indistinguishable. We disagree.
During the punishment hearing, DeLeon’s counsel called a probation officer who
testified about counseling and treatment that sex offenders receive when they are placed
on probation; through this education-type process, they learn to control their behavior and
to remove themselves from high-risk situations. Id. at 385. On cross-examination by
the State, the probation officer testified as follows:
Q. If in a particular case the facts were to show that what a person was
convicted for was a situation where either through opportunity or
through planning it was in a position where nobody else would see it,
it was secretive; unless a child talked nobody would know. Is that
risk still there if the people around aren’t trying to prevent that?
A. Sure. That risk will always be there. The risk will never disappear.
Regardless if they get alone with the child, regardless if there are
other adults in the house, the risk remains. [P] The risk is in the
brain. It’s up here. It’s the desire. You can put a person in prison,
you can do anything you want to them. You cannot get rid of the
deviancy, the sexual desire, in any offender. [P] Sexual behavior is
natural, but when it becomes deviant, that is when we get worries.
Once it is with them, it doesn’t disappear. That is the purpose of
treatment. [P] Punishment—I don’t care what kind of punishment
79
you give somebody, it never forces the issues out of their brain.
They will always have some kind of deviant sexual desire, and they
will always be at risk to the community. That is just the way it works.
Id. at 384-85. On re-cross, the probation officer expanded his testimony with the
following:
Q. Now rehabilitation of sex offenders: Are they ever rehabilitated to
the point where the risk is gone?
A. No. Absolutely not. The risk will always be there. It may be
minimized or lessened, but the risk will always remain because we
don’t know what anybody here is thinking. We can never assume
that we know what a sex offender is thinking. [P] The risk is this:
they were sex offenders before they committed the offense. So we
don’t know what he is thinking, what they’re planning. We can give
them treatment, we can do all the things that are required by law; but
we can’t see up here, so we can never truly predict what is going to
happen from day one to day two. [P] You have got to assume all the
risk because you have heard story after story, ―I never thought he
would do this; I never thought my grandfather would do this; I never
thought my dad would do this.‖ [P] So you never, ever push out the
risk. You always assume the risk is great, then hopefully that is
going to create enough protection to prevent other children from
being impacted one way or the other. You just don’t know. [P] I
can have guys that do everything perfectly, but up here they’re still
having sexual fantasies of molesting two-year-old girls or
two-year-old boys. Just because you succeed well in probation
does not remove the risk.
Id. at 385. The probation officer then listed various problems he had encountered as a
probation officer dealing with sex offenders and concluded by testifying that ―[i]f you want
to protect the public, then you put them in a situation where they can’t have access to
children.‖ Id.
Based on the above testimony, the DeLeon Court concluded that, even without
determining whether the officer was qualified to give expert opinion testimony such that
the testimony on these matters was admissible on that basis, the ―testimony was
80
particularly damaging to appellant’s prospects for probation or a short prison sentence‖
and that ―trial counsel was deficient in failing to object to the highly inflammatory
testimony and for calling [the officer] to the stand in the first place‖ because he ―should
have known how [the officer] was going to testify on these matters.‖ Id. at 385-86.
Finally, the Fourteenth Court of Appeals determined that ―[t]here could have been no
strategic reason for producing and permitting such damning testimony.‖ Id. at 386.
The Deleon Court's reversal was not based on the fact that counsel failed to object
to the probation officer’s qualification to render an opinion, but rather on the highly
inflammatory nature of the officer’s testimony as a whole. Id. at 385-86. Thus, it
provides no support for Cueva’s qualification argument. Cueva does not complain that
counsel’s performance was deficient for calling Officer Escamilla to the stand, as did the
appellant in DeLeon. See id. Instead, he contends only that counsel was deficient in
failing to object to testimony regarding rehabilitation.
As to Officer Escamilla’s rehabilitation testimony, while she agreed that sex
offenders cannot be rehabilitated, she also agreed that one can try to get a sex offender
to change his behavior, which would support a conclusion that the risk may be minimized
or lessoned. Additionally, Officer Escamilla testified, somewhat inconsistently during her
second cross-examination, that she was not familiar with a sex offender’s compulsion to
offend. We cannot conclude that this testimony is ―highly inflammatory‖ and ―damning‖
testimony. See id. at 384-85. It falls far short of the testimony condemned by the
DeLeon Court, and DeLeon is therefore also distinguishable for that reason. See id.
Finally, by allowing the State’s line of questioning, counsel was later able to ask
Officer Escamilla whether Cueva’s admission to some of the charges indicated that he
81
was likely to be a good candidate for probation. The trial court overruled the State's
objection to this line of questioning on the basis that the State had already gone into this
area. Therefore, unlike DeLeon, Cueva has not shown in the record that counsel's
conduct was not the product of a strategic decision. See id. at 386. Because we cannot
conclude that counsel’s conduct, in this regard, was so outrageous that no competent
counsel would have engaged in it, we must, therefore, presume that his performance was
constitutionally adequate. See Morales, 253 S.W.3d at 696-97.
(iv.) Testimony that Cueva Committed Extraneous Offenses
Cueva asserts that counsel’s conduct in eliciting, opening the door to, and failing to
object to certain inadmissible extraneous offenses based on hearsay constituted deficient
performance. He claims that no sound strategy could justify this conduct.
In support of his argument, Cueva relies on Ex parte Walker. 777 S.W.2d 427,
432 (Tex. Crim. App. 1989) (en banc). The court of criminal appeals in Ex parte Walker
held that counsel was deficient for allowing in and discussing Walker's adjudicated
extraneous offense during the punishment stage. Id. Ex parte Walker was decided
under the former statute, which generally did not permit extraneous offenses to be
admitted. Id. The law has since changed, and unadjudicated extraneous offenses are
now admissible during punishment if the State proves them beyond a reasonable doubt.
TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3(a); see Mitchell v. State, 931 S.W.2d 950, 954
(Tex. Crim. App. 1996) (en banc).
Nonetheless, Cueva objects to certain references to a prior assault against A.G.’s
mother and to Cueva’s prior driving while intoxicated (DWI) arrests. Reference to the
prior assault occurred during the punishment stage when, during cross-examination of
82
A.G.’s grandmother, Cueva’s counsel appeared to be developing the reasons for, and the
extent of, her disapproval of Cueva, including the fact that she had called the police and
gotten him arrested. On cross-examination of A.G.’s great aunt, Cueva’s counsel also
developed her dislike for Cueva and how she was angry that all charges against Cueva
for the prior assault had been dropped.
During direct examination of defense witness Adan Barrera, Cueva’s counsel
allowed the witness to detail what he knew about Cueva. Barrera stated, among other
things, that Cueva was ―a good father,‖ ―a great person,‖ and agreed that he was ―a
responsible person.‖ On cross-examination, the State then asked whether Cueva was a
good father and a responsible person when he beat his girlfriend in front of his daughter
and got arrested twice in one year for DWI. Finally, during direct examination of Cueva’s
father, counsel asked what kind of person Cueva was and whether he could follow the
rules and conditions of probation, and his father answered that Cueva was ―a great man,
good man.‖ On cross-examination, the State elicited testimony from Cueva’s father that
he knew about Cueva’s DWI arrests but not about his arrest for beating A.G.’s mother.
The record supports a conclusion that it was sound trial strategy to show the
grandmother’s and great-aunt’s dislikes for, and biases against, Cueva to demonstrate
that their requested punishment was unreasonable. Counsel also took a strategic risk in
asking about the kind of person Cueva was, perhaps seeking sympathy for Cueva. By
doing so, counsel had no basis to object to the State’s impeachment of those witnesses
with prior bad conduct. Thus, we conclude counsel made strategic decisions regarding
this testimony. Strickland, 466 U.S. at 689. Again, Cueva has not shown, through the
record, that counsel's conduct was not the product of a strategic decision, and we cannot
83
conclude that counsel’s conduct, in this regard, was so outrageous that no competent
counsel would have engaged in it. See Morales, 253 S.W.3d at 696-97.
We also note that the punishment charge contained a paragraph instructing the
jury not to consider testimony concerning extraneous offenses if it was not proved beyond
a reasonable doubt. Therefore, counsel’s performance was not ineffective for this
reason.
(v.) Prosecutor's Punishment-Stage Arguments
(a). Cueva “Attacked” A.G.
Cueva complains that counsel’s failure to object to the following portion of the
prosecutor’s closing argument on punishment was deficient, not strategic:
All we know is that he touched his penis on her anus and on her
vaginal area, and even after he had done all of that, when he was caught in
the act, he basically turned the tables on her and ended up during this trial
victimizing her again by attacking her.
Cueva claims that, by this argument, the prosecutor was arguing that Cueva
victimized A.G. by going to trial and making her testify, an argument he contends is
improper and should have required a mistrial. See, e.g., Villarreal v. State, 860 S.W.2d
647, 650 (Tex. App.—Waco 1993, no pet.) (concluding that the prosecutor’s argument
equating the fulfillment of the constitutional right to a jury trial by requiring a complainant
to testify about the defendant raping the child complainant again by going to trial was
extreme and so manifestly improper and harmful that no instruction to disregard could
reasonably remove it from the minds of the jurors). The prosecutor, however, did not say
that Cueva victimized A.G. by making her go to trial and testify against him, as Cueva
asserts. Rather, the prosecutor argued that Cueva ―ended up during this trial victimizing
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[A.G.] again by attacking her.‖ She did not explain or expand upon her statement.
Moreover, Cueva concedes, on appeal, that the prosecutor was arguing that
Cueva attacked A.G.’s credibility.21 And Cueva, himself, testified that A.G. was lazy in
the mornings, made excuses to get out of going to school, and got rashes because she
did not know how to clean herself properly. Such testimony could be seen as an
embarrassing and demeaning attack on A.G. Cueva also testified that A.G.’s mother
―went all psycho on me, saying all kind of retarded stuff‖ and that ―I know what kind of
person she is.‖ The prosecutor could have been referring to this testimony when arguing
that Cueva victimized A.G. again by attacking her during the trial.
Cueva provides us with no record citations to support his characterization of the
prosecutor’s argument. And he has not referred this Court to any controlling authority to
show that an objection would have been sustained or, if overruled, would have
constituted reversible error, and we find no such authority. See Miniel v. State, 831
S.W.2d 310, 324 (Tex. Crim. App. 1992) ("While the prosecutor's misstatement of the
evidence regarding fingerprints on the shock absorber was improper and would have
been subject to an objection, even had such been erroneously overruled such error would
certainly not have been reversible."); see also Holland v. State, 761 S.W.2d 307, 319
(Tex. Crim. App. 1988) ("[T]rial counsel was under no obligation to do what would amount
to a futile act.").
Therefore, affording great deference to counsel's ability, see Jaynes, 216 S.W.3d
at 851, we conclude that there was nothing to which counsel should have objected.
21
In his appellate brief, Cueva comments that ―[t]here is no evidence in the record that [Cueva]
physically attacked [A.G.] during the trial,‖ rather ―the prosecutor meant that [Cueva] challenged [A.G.’s]
credibility.‖
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Counsel did not perform "below an objective standard of reasonableness" in this regard,
and thus, counsel's decision not to object to this argument was not deficient in this
instance. See Ex parte Briggs, 187 S.W.3d at 466.
(b). Life Sentences and Another Trial
Cueva asserts that the prosecutor's closing arguments that A.G. and the police
officers wanted a particular punishment and that there was a pending charge in Mission,
Texas, involving A.G., which could result in another trial depending on the punishment
assessed in this trial, were improper and should have been objected to by counsel.
Cueva contends that these arguments were improper because there was no evidence in
the record to support such a summary, and the summary was not a reasonable deduction
from the evidence. See Dorsey v. State, 709 S.W.2d 207, 210 (Tex. Crim. App. 1986)
(en banc) ("[I]f a prosecutor wants to argue that a victim desires his or her assailant
incarcerated, then these facts need to be in evidence."); see also Alejandro, 493 S.W.2d
at 231-32 (setting out four areas of a proper jury argument); Jackson, 17 S.W.3d at
673-74 (same).
Specific to this complaint, the prosecutor argued the following:
The community has no choice with your decision. Whatever you
decide, Robstown[, Texas] is stuck with. I find it interesting that the
defense is arguing that [A.G.] does not want [Cueva] to go to prison. That's
not true. [A.G.] wants [Cueva] in prison for the rest of his life. So does her
family. The detective–-the detectives in this community is [sic] asking for a
life sentence.
….
Now it is your turn to affirm [A.G.] What would be affirmation here
for this horrible brutal crime is 99 years [in] prison. At least give [A.G.] the
comfort of knowing that [Cueva] will never ever get out of prison. By giving
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[Cueva] a high sentence, [A.G.] will not have to go through another trial in
Mission, Texas. This will be it.
Based on our review of the record, including the prosecutor's entire closing
argument, it would have been reasonable for counsel to interpret the prosecutor's
argument as a plea for law enforcement rather than a summary of the testimony of the
witness. See Jackson, 17 S.W.3d at 673-74. Moreover, even were we to agree with
Cueva's interpretation that the prosecutor was arguing that everyone wanted Cueva in
prison for life, this is consistent with Cueva's trial strategy to show that the prosecution
witnesses were biased against him, a strategic reason for not objecting. See Strickland,
466 U.S. at 689 (providing that decisions based in strategy do not constitute deficient
performance). And to the extent we would conclude that counsel's failure to object was
improper, we would further conclude that it did not fall below an objective standard of
reasonableness under the prevailing professional norms. See Ex parte Briggs, 187
S.W.3d at 466.
As for the prosecutor's argument that A.G. would have to endure another trial in
Mission, Texas, if the jury did not assess a long sentence, counsel may have decided not
to object in order to avoid highlighting such an argument or encouraging the jury to dwell
on the possibility of another trial. See Garcia, 887 S.W.2d at 881. He may also have
decided that the jury's speculation that, whatever sentence they imposed, Cueva might
still be subject to prosecution and punishment in a separate case, which would work in his
favor.
Thus, we conclude counsel made strategic decisions regarding the prosecutor's
argument. Cueva has not shown that counsel's conduct was not the product of a
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strategic decision, and we cannot conclude that counsel’s conduct, in this regard, was so
outrageous that no competent counsel would have engaged in it. See Morales, 253
S.W.3d at 696-97.
(vi.) Counsel's Argument that It Was Not His Job to Seek Justice
Cueva asserts that it was unsound for his counsel to execute a purported strategy
by arguing as part of his punishment summation that it was not his job to see that justice
was done. Cueva contends that this argument is inconsistent with any reasoned
punishment strategy, and therefore, counsel's conduct was objectively deficient. 22
Counsel presented the following summation at the close of the punishment stage:
I want you to think beyond just the argument the prosecution is going
to make when they talk about justice. In the [c]ode of [c]riminal
[p]rocedure, the prosecutor's job is to see that justice is done. That's not
my job. My job is to make the best plea for my client that I can possibly do.
That is what I am doing to you here today. Without shame, without
embarrassment of any kind whatsoever, I am here pleading for the life of my
client, Charles Anthony Cueva.
In this closing argument, counsel referred to the prosecutor's job—one of seeking
justice–-and to his job–-one of pleading for his client. It is reasonable to conclude that
counsel was explaining each counsel's respective function at trial, emphasizing that
defense counsel does not have a generalized duty to seek justice, as does the
prosecutor. Rather, defense counsel is to make the best case he can for his client, which
would include arguing the evidence to support an acquittal or a light punishment. It is
22
Again, Cueva relies on Craig v. State, this time in support of his general conclusion that
counsel's conduct was objectively deficient. See 847 S.W.2d at 436. As noted earlier, however, the Craig
Court considered the effect of counsel's alleged errors at the punishment stage by applying the
then-accepted Duffy standard of review, not the Strickland standard. See id. at 435 (citing Ex parte Duffy,
607 S.W.2d 507, 514 n.14 (Tex. Crim. App. 1980)); see also Strickland, 466 U.S. at 689; Ex parte Walker,
777 S.W.2d 427, 430 (Tex. Crim. App. 1989). Therefore, we do not agree that Craig supports Cueva's
argument for reversal in this case.
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also reasonable strategy for the defense counsel to talk with the jury about his role in
order to build credibility, to avoid the appearance that he is trying mislead or behave
unethically, and to be candid about his client's shortcomings. See Martin v. State, 265
S.W.3d 435, 446 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (quoting Yarborough v.
Gentry, 540 U.S. 1, 9 (2003) ("By candidly acknowledging his client's shortcomings,
counsel might have built credibility with the jury and persuaded it to focus on the relevant
issues in the case.")).
Thus, we conclude counsel made strategic decisions regarding this argument.
Cueva has not shown, in the record, that counsel's conduct was not the product of a
strategic decision, and we cannot conclude that counsel’s conduct, in this regard, was so
outrageous that no competent counsel would have engaged in it.23 See Morales, 253
S.W.3d at 696-97.
3. Summary
Accordingly, having concluded that the trial court did not abuse its discretion in
denying ineffective-assistance-of-counsel challenges made by Cueva in his motion for
new trial, we overrule Cueva's third and fourth issues as to those claims. We also
overrule the third and fourth issues as to Cueva's additional claims because we have
concluded that counsel's performance as to each of the additional claims was not
ineffective under Strickland.
23
Cueva also complains that the alleged errors collectively prejudiced his defense. Having
concluded that Cueva did not satisfy Strickland’s deficiency prong by a preponderance of the evidence as to
each alleged individual error or having concluded that, if his performance was deficient, there was no
prejudice shown, we need not address Cueva's "collective prejudice" argument. See Perez v. State, 310
S.W.3d 890, 893 (Tex. Crim. App. 2010) (providing that a defendant must satisfy both of Strickland's prongs
by a preponderance of the evidence); Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005);
see also Strickland, 466 U.S. at 687; see also TEX. R. APP. P. 47.1.
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IV. CONCLUSION
We affirm the judgment of the trial court.
NELDA V. RODRIGUEZ
Justice
Publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
2nd day of May, 2011.
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