Francisco Perez Arcos v. State ( 2011 )

Opinion issued July 7, 2011.

In The

Court of Appeals

For The

First District of Texas

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NOS. 01-10-00342-CR

01-10-00343-CR

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Francisco Arcos, Appellant

V.

The State of Texas, Appellee

On Appeal from the 263rd District Court

Harris County, Texas

Trial Court Case Nos. 1,175,636 & 1,175,637

MEMORANDUM OPINION

          A jury convicted Francisco Arcos of two felony offenses of aggravated sexual assault of a child. The jury assessed punishment at 50 years’ confinement for each offense, to run concurrently.  In two points of error, appellant contends that (1) the trial court erred in permitting more than one outcry witness, and (2) he was denied effective assistance of counsel because trial counsel failed to object to inadmissible hearsay testimony. We affirm.

BACKGROUND

          Appellant is the father of the complainant, and was married to Zurisadai Cabanas, the complainant’s mother, at the time of the assault. Cabanas testified that the night of September 14, 2007, appellant returned home from work after drinking with a co-worker to find his wife and daughters watching television in one of the home’s bedrooms. After greeting his family, appellant and his oldest daughter, A.A.—then six years old—watched television away from the family in the living room. A few minutes later, appellant and A.A. went into the master bedroom and shut the door.

          Cabanas became suspicious when she stopped hearing the two from inside the bedroom. Discovering the door was locked, Cabanas fetched pruning scissors to pry open the door. When she entered the room, she found appellant naked, face-up on the bed, with an erection. A.A’s arm and hand were draped over him. A.A. was also naked except for a t-shirt. Cabanas called the police and told A.A. to get dressed. While this was occurring, appellant stood up and put on some boxers. When Cabanas asked what he had been doing with A.A., appellant said nothing except that he would wait for the police on the bed.

          Officer Michael Santos was the first to arrive. Officer Santos testified he found appellant still lying on the bed, seemingly asleep. Officer Santos doubted appellant was asleep because of the general level of noise and activity in the small house. After being awakened, appellant sat up and acted confused about the police presence. Officer Santos handcuffed appellant, helped him dress, and placed him in the back of the police car.

          After he detained appellant, Officer Santos talked to A.A. about what happened in the bedroom. A.A. said the appellant just tickled her at first, but then proceeded to kiss her and remove her clothing. He placed his hand on her vagina, penetrated her with his fingers, and performed oral sex on her. This continued until appellant heard Cabanas trying to open the door.

          Following the interview, Cabanas and A.A. were taken by ambulance to a nearby emergency room, where A.A. was examined by Donna Layton, a forensic nurse. Layton was also trained as a sexual assault examination nurse.

          Layton’s examination revealed small tears in A.A.’s hymen, as well as general irritation, redness, and swelling inside her vagina. Layton testified this was consistent with a sexual assault. Layton also interviewed A.A. about what happened and who might have abused her. During the course of the interview, A.A. said her father had touched her vagina and performed oral sex on her.

          Before trial, the State sought to designate Officer Santos, A.A.’s mother Zurisadai Cabanas, and Nurse Layton as outcry witnesses to permit them to testify at trial about what A.A. told them without violating the court’s prohibitions against hearsay. After hearing each party’s arguments, the trial court determined the State could only classify one person as the outcry witness. The State designated Officer Santos.

          During a trial recess, the State again argued the mother and Nurse Layton should be designated as outcry witnesses. Counsel for appellant repeated his objections. After reviewing the cases, the trial judge affirmed that only Officer Santos could be the outcry witness. Appellant’s counsel asked the court to restrict the testimony of the State’s witnesses based on the decision. The trial judge agreed.

[Defense Counsel]: For the record, Judge, can she restrict her witnesses to any—your ruling now with regards to any testimony with regards to the notice that she sent me as to outcry from each of these witnesses[?]

[Trial Court]: Sure.

          However, the court suggested Nurse Layton’s testimony might fit within the hearsay exception for statements made for the purpose of a medical diagnosis. This would permit Layton to recount A.A.’s statements even though she was not classified as an outcry witness.

          The next day, during the direct examination of Nurse Layton, the State asked her about A.A.’s comments:

[Prosecutor]: In fact, can you do your job without knowing what happened to the child?

[Layton]: I could but it wouldn’t be as accurate as needed.

[Prosecutor]: What did the child tell you the reason [sic] she was there?

. . . .

[Defense Counsel]: I will object. Never mind. Withdraw my question.

[Layton]: Through the interpreter she stated, my daddy kissed me on my [vagina] and touched it with his hand.

HEARSAY

          “Hearsay” is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Tex. R. Evid. 801(d). Hearsay is inadmissible except as provided by statute or rules prescribed pursuant to statutory authority. Tex. R. Evid. 802. One statutory exception is Article 38.072 of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 38.072 (Vernon 2005). Article 38.072 permits an adult to give hearsay testimony at trial recounting a child victim’s statements about her sexual assault if the testimony meets the statutory provisions listed in 38.072. Id. For example, only the first adult to whom the child reveals details about the assault may be considered an outcry witness, with some exceptions. See id. at § 2 (a)(2). As both parties acknowledge, Officer Santos was properly designated an outcry witness by the trial court.

          In his first point of error, appellant argues that because Nurse Layton could not be an outcry witness, her testimony recounting A.A.’s statement revealing the nature of the abuse and identity of her abuser should have been excluded as hearsay. Appellant further contends that without Layton’s statement, the jury would not have found appellant guilty.

          In response, the State argues the appellant waived any error because he failed to object and preserve the error for appellate review. The State notes that while counsel for appellant initially objected, he subsequently withdrew the objection.

Preservation of Error

          In order to preserve error for appellate review, an appellant must make a proper and specific objection and receive an adverse ruling on that objection. Tex. R. App. P. 33.1; see Diaz v. State, 125 S.W.3d 739, 743 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d). Texas law generally requires a party to continue objecting each time inadmissible evidence is offered. Ethington v. State, 819 S.W.2d 854, 858 (Tex. Crim. App. 1991); Thierry v. State, 288 S.W.3d 80, 88 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d). Error is waived if the same evidence comes in elsewhere without objection. Hudson v. State, 675 S.W.2d 507, 511 (Tex. Crim. App. 1984); Duncan v. State, 95 S.W.3d 669, 672 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d).

          In this case, appellant’s counsel sought to limit the testimony of the State’s witnesses based on the trial court’s decision limiting the prosecutor to one outcry witness. However, if Nurse Layton’s testimony was inadmissible hearsay, as appellant now argues, he had the burden to preserve the error through a proper objection. While he made an initial objection, the error is not preserved for appellate review if the objection is subsequently withdrawn. See Salazar v. State, 38 S.W.3d 141, 148 n.3 (Tex. Crim. App. 2001). The record must show that the complaining party gave the trial court an opportunity to rule on the complaint by presenting that complaint to the trial court in a specific and timely objection. See Tex. R. App. P. 33.1(a); Geuder v. State, 115 S.W.3d 11, 13 (Tex. Crim. App.2003); Martinez v. State, 98 S.W.3d 189, 193 (Tex. Crim. App. 2003); Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992). Because the appellant withdrew his objection and never gave the court a chance to consider whether Layton’s testimony was hearsay, he cannot raise it now. We overrule appellant’s first point of error.

Ineffective Assistance of Counsel

          In his second point of error, appellant contends that his trial counsel rendered ineffective assistance when, during the punishment phase, his trial counsel failed to make a hearsay objection to Donna Layton’s testimony about A.A.’s statements regarding why she went to the hospital, failed to request a jury instruction to disregard Layton’s statements, and failed to move for a mistrial because of Layton’s statements.

Standard of Review

          To prevail on a claim of ineffective assistance of counsel, an appellant must satisfy the standard set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). First, an appellant must prove by a preponderance of the evidence that counsel’s performance fell below an objective standard of reasonableness. See id. at 687–88, 104 S. Ct. at 2064; Ex parte Ellis, 233 S.W.3d 324, 330 (Tex. Crim. App. 2007). Second, an appellant must show that counsel’s deficient performance prejudiced or harmed his defense. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. This requires a showing that counsel’s errors undermined the confidence in the result from trial. Ex parte Ellis, 233 S.W.3d at 330; Jaenicke v. State, 109 S.W.3d 793, 797 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d). An appellant bears the burden of overcoming the “strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance.” Ex parte Ellis, 233 S.W.3d at 330 (quoting Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999)).

          The Court of Criminal Appeals has stated that appellate courts should not find counsel ineffective unless the counsel’s performance was “so outrageous that no competent attorney would have engaged in it.” Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001). Thus, any alleged ineffectiveness must be founded and demonstrated in the record. Thompson, 9 S.W.3d at 813–14. As a result, “the record on direct appeal is in almost all cases inadequate to show that counsel’s conduct fell below an objectively reasonable standard of performance.” Andrews v. State, 159 S.W.3d 98, 102 (Tex. Crim. App. 2005); see also Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002) (“[R]arely will the trial record contain sufficient information to permit a reviewing court to fairly evaluate the merits of such a serious allegation.”).

Analysis

           Here, there was no motion for a new trial and there is nothing in the record that explains why counsel failed to object or request a preliminary hearing regarding the admissibility of Nurse Layton’s testimony. This Court has held that when the record is silent, the court will not speculate about trial counsel’s strategy or reasoning to find counsel ineffective. See Gamble v. State, 916 S.W.2d 92, 93 (Tex. App.—Houston [1st Dist.] 1996, no pet.).

          A failure to make an objection does not automatically demonstrate ineffective assistance of counsel. Ryan v. State, 937 S.W.2d 93,103 (Tex. App.— Beaumont 1996, pet. ref’d), see also Ingham v. State, 679 S.W.2d 503, 509 (Tex. Crim. App. 1984) (en banc) (“An isolated failure to object to certain procedural mistakes or improper evidence does not constitute ineffective assistance of counsel.”); Garcia-Sandoval v. State, No. 01-08-00842-CR, 2010 WL 1571207, at *3 (Tex. App.—Houston [1st Dist.] Apr. 8, 2010, no pet.) (mem. op., not designated for publication) (“Mere identification of instances in which counsel did not make an evidentiary objection, without more, does not establish deficient performance of counsel for the purposes of an ineffective-assistance claim.”). The act, or lack thereof, must be so egregious that no reasonable attorney would act in this manner. Without a trial record demonstrating counsel’s reasons, we must determine whether counsel’s actions conform to a reasonable trial strategy. Garcia, 57 S.W.3d at 440.

          The record indicates two possible reasons why the appellant’s counsel did not object to the hearsay testimony. First, the day before Nurse Layton testified, the court discussed her upcoming testimony with both parties’ counsel. The court noted, as an aside, that Layton’s comments likely fell within the hearsay exception for statements made for the purpose of medical diagnosis. See Tex. R. Evid. 803(4). It is not ineffective assistance of counsel to refrain from objecting to admissible evidence. See Flowers v. State, 124 S.W.3d 801, 803–04 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d) (holding that trial counsel was not ineffective for failing to object because, even if counsel had objected, trial court would not have erred in admitting testimony or evidence).

          Second, the record indicates the State intended to designate Nurse Layton as an outcry witness to introduce statements by A.A. about additional sexual acts by appellant. However, the trial court did not permit the state to name multiple outcry witnesses to introduce these additional statements. Appellant’s counsel could have withdrawn the objection to not draw additional attention to Nurse Layton’s statements, or he may have withdrawn the objection to avoid initiating another hearing on whether Nurse Layton could be designated as an outcry witness.

          Appellant’s reliance on Ex parte Welborn, 785 S.W.2d 391 (Tex. Crim. App. 1990), and Greene v. State, 928 S.W.2d 119 (Tex. App.—San Antonio 1996, no pet.), is misplaced. Appellant points to Welborn and Greene in support of the proposition that multiple small errors over the course of a trial may, in the aggregate, be sufficient to demonstrate ineffective assistance of counsel. See Welborn, 785 S.W.2d at 396; Greene, 928 S.W.2d at 126–27. This is distinguishable because in this case appellant only complains about the failure to object to the one statement by Nurse Layton, not the pattern of errors seen in Welborn or Greene.

          Because appellant has not demonstrated his counsel’s performance was objectively unreasonable under Strickland’s first prong, he failed to demonstrate he received ineffective assistance of counsel. We overrule appellant’s second point of error.

CONCLUSION

We affirm the trial court’s judgment.

Sherry Radack

                                                                   Chief Justice

Panel consists of Chief Justice Radack and Justices Sharp and Brown.

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