Roger Rivas v. State

Affirmed and Memorandum Opinion filed February 12, 2009

Affirmed and Memorandum Opinion filed February 12, 2009.

In The

Fourteenth Court of Appeals

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NO. 14-07-00943-CR

NO. 14-07-00944-CR

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ROGER RIVAS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 179^th District Court

Harris County, Texas

Trial Court Cause No. 1082203 and 1113609

M E M O R A N D U M   O P I N I O N

A jury found appellant, Roger Rivas, guilty of aggravated sexual assault of a child and indecency with a child.  Tex. Penal Code Ann. '' 21.11 & 22.021(a)(1)(B)(i) (Vernon 2003).  The jury assessed punishment at twelve years= confinement for the aggravated sexual assault  of a child conviction and five years= confinement for the indecency with a child conviction.  His sentences were to run concurrently in the Institutional Division of the Texas Department of Criminal Justice.  In three issues, appellant argues he was denied effective assistance of counsel when (1) his trial counsel failed to object to the introduction of medical records containing allegations of extraneous sexual assaults allegedly committed by appellant against his nieces, (2) his trial counsel failed to object to Officer Montoya=s testimony, and (3) his trial counsel failed to object to the introduction of medical records containing a hearsay statement made by the complainant=s mother.  We affirm.

Facts and Procedural History

When the complainant was six years old, her mother employed Marisol Moreno as a babysitter to watch her after school.  On or about June 12, 2006, the complainant=s mother left the complainant at Ms. Moreno=s house. Appellant, Ms. Moreno=s brother, also resided at the house. While the complainant was at the house, appellant touched her vagina with his hand, and inserted his finger inside her vagina.  Appellant told the complainant to keep it a secret, but the complainant told her mother. Appellant voluntarily arrived for an interview at the Houston Police Station on August 23, 2006.  Officer Ramiro Montoya, Jr., the investigating officer, conducted a several-hour long video taped interview, where appellant confessed he touched complainant=s vagina with his hand.  Following the interview, appellant left the station, not under arrest.  On August 28, 2006, charges were filed against appellant, and he was subsequently arrested.

At trial, Officer Ramiro Montoya, Jr. testified regarding appellant=s confession to the crime.  The following exchange took place between appellant=s trial counsel and Officer Montoya:

[DEFENSE COUNSEL]:             Was there really that much to clear up if he, in fact, said, I touched her vagina with my finger?  How many ways can you say that?  How much can you amplify that?

OFFICER MONTOYA:                There was more, sir.  Actually, that wasn=t the only allegation. 

The medical records admitted into evidence, and at issue here, showed there were similar Acomplainants from alleged assailant=s nieces also.@  Additionally, the medical records indicated the complainant=s mother said she was concerned appellant would leave town if appellant discovered the assault was reported.

Discussion

A.      Did Appellant Receive Ineffective Assistance of Counsel?

In three issues, appellant argues he was denied effective assistance of counsel (1) when his trial counsel allowed introduction of medical records containing allegations of extraneous sexual assaults committed by appellant against his nieces, (2) when his trial counsel failed to object to Officer Montoya=s testimony, and (3) when his trial counsel allowed the introduction of medical records containing a hearsay statement made by the complainant=s mother.  Because they all deal with the admission of evidence, we will address appellant=s arguments together.

1.       Standard of Review

In reviewing claims of ineffective assistance of counsel, we apply a two-prong test.  See Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984)).  To establish ineffective assistance of counsel, appellant must prove by a preponderance of the evidence that (1) his trial counsel=s representation was deficient in that it fell below the standard of prevailing professional norms, and (2) there is a reasonable probability that, but for counsel=s deficiency, the result of the trial would have been different.  Id.

An accused is entitled to reasonably effective assistance of counsel.  King v. State, 649 S.W.2d 42, 44 (Tex. Crim. App. 1983). When evaluating a claim of ineffective assistance, the appellate court looks to the totality of the representation and the particular circumstances of each case.  Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). There is a strong presumption that counsel=s actions and decisions were reasonably professional and were motivated by sound trial strategy.  Salinas, 163 S.W.3d at 740; Stults v. State, 23 S.W.3d 198, 208 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d).  To overcome the presumption of reasonable professional assistance, Aany allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness.@  Thompson, 9 S.W.3d at 814 (quoting McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996)).  When determining the validity of an ineffective assistance of counsel claim, any judicial review must be highly deferential to trial counsel and avoid the deleterious effects of hindsight.  Ingham v. State, 679 S.W.2d 503, 509 (Tex. Crim. App. 1984).  When the record is silent as to the reasons for counsel=s conduct, a finding that counsel was ineffective would normally require impermissible speculation by the appellate court.  Stults, 23 S.W.3d at 208.  Absent specific explanations for counsel=s decisions, a record on direct appeal will rarely contain sufficient information to evaluate an ineffective assistance claim.  Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002).  However, when no reasonable trial strategy could justify 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 trial counsel=s subjective reasons for acting as he did.  Andrews v. State, 159 S.W.3d 98, 102 (Tex. Crim. App. 2005).  If a criminal defendant can prove trial counsel=s performance was deficient, he must still affirmatively prove he was prejudiced by counsel=s actions.  Thompson, 9 S.W.3d at 812.  This requires the defendant to demonstrate a reasonable probability that the result of the proceeding would have been different if trial counsel had acted professionally.  Id.  A reasonable probability is a probability sufficient to undermine confidence in the outcome.  Id.

2.       Analysis

Appellant does not meet the first prong of Strickland because the record is undeveloped.  The first prong of Strickland requires appellant to demonstrate his counsel=s performance was deficient and not reasonably effective.  Strickland, 466 U.S. at 688, 104 S. Ct. at 2064.  Any allegation of ineffectiveness must be firmly founded in the record.  Bone, 77 S.W.3d at 835.  When the record is silent about the motivations of counsel, we cannot conclude counsel=s performance was deficient.  See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994).  Here, appellant fails to rebut the presumption trial counsel=s decisions were reasonable.  Thompson, 9 S.W.3d at 814.  We are not required to speculate on trial counsel=s actions when confronted with a silent record.  See Jackson, 877 S.W.2d at 771; McCoy v. State, 996 S.W.2d 896, 900 (Tex. App.CHouston [14th Dist.] 1999, pet. ref=d). 

The record before us contains no explanation as to why defense counsel allowed introduction of medical records containing allegations of extraneous sexual assaults committed by appellant against his nieces and a hearsay statement made by the complainant=s mother, nor does it contain an explanation as to why defense counsel did not object to Officer Montoya=s testimony.  See Gamble v. State, 916 S.W.2d 92, 93 (Tex. App.CHouston [1st Dist.] 1996, no pet.) (concluding, in face of silent record, trial counsel=s failure, among other omissions, to object to inadmissable hearsay, admission of extraneous offense, improper jury argument, and opinion testimony, not ineffective assistance).  However, reasonable trial strategy could have justified trial counsel=s conduct.  For example, trial counsel may not have pursued a limiting instruction on the extraneous offenses because of concern it would lend more credibility to the offenses.  See Gholson v. State, 5 S.W.3d 266, 273 (Tex. App.CHouston [14th Dist.] 1999, pet. ref=d) (opining counsel may not have pursued reasonable-doubt instruction on extraneous offense to avoid appearance of giving accusation more credibility than it deserved); Ryan v. State, 937 S.W.2d 93, 104 (Tex. App.CBeaumont 1996 pet. ref=d) (concluding counsel may have avoided requesting limiting instruction in order not to draw further attention to extraneous offenses since nothing in the record explained counsel=s conduct).

Thus, without a record of counsel=s reasons for his conduct in this case, we cannot say appellant has overcome the presumption that counsel=s actions were based on sound trial strategy.  See Strickland, 466 U.S. at 689, 104 S. Ct. at 2065; Jackson, 877 S.W.2d at 771.  Accordingly, we overrule appellant=s three issues.

Conclusion

Having overruled all of appellant=s issues, we affirm the trial court=s judgment.

/s/      John S. Anderson

Justice

Panel consists of Chief Justice Hedges and Justices Anderson and Seymore.

Do Not Publish C Tex. R. App. P. 47.2(b).