Opinion issued October 4, 2007
In The
Court of Appeals
For The
First District of Texas
NO. 01-06-00249-CR
NO. 01-06-00250-CR
STEPHEN DEAL, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 230th District Court
Harris County, Texas
Trial Court Cause Nos. 1044242 and 1032267
MEMORANDUM OPINION
Appellant, Stephen Deal, was charged in two different causes with aggravated sexual assault of a child. See Tex. Pen. Code Ann. § 22.021(a)(1)(B)(iii) (Vernon Supp. 2006). Those causes were consolidated and tried to a jury. The jury convicted appellant of both offenses and assessed punishment at five years in prison for each offense. The court cumulated the sentences. See Tex. Code Crim. Proc. Ann. art. 42.08(a) (Vernon 2006); Tex. Pen. Code Ann. § 3.03(a), (b)(2)(A) (Vernon Supp. 2006). We address whether appellant has established that: (1) he received ineffective assistance of counsel; (2) the court erred in cumulating his sentences; and (3) the evidence is factually insufficient to support the verdict. We affirm.
Facts
Appellant sexually assaulted complainant, his niece by marriage, when she was six years old. Complainant’s mother, Yolanda Gonzales, saw appellant place his hands on complainant’s bottom underneath her clothing. When Gonzales questioned complainant about what she had seen, complainant told Gonzales that appellant had threatened to hit her and to hurt her mother if she told anyone what he had done. Complainant then described several acts of sexual assault occurring on multiple occasions. Gonzales confronted appellant and his wife (Gonzales’s sister), and agreed not to contact the police if appellant left town and never returned.
Several years later, Gonzales saw appellant at a local restaurant. Fearing that appellant would again assault children in the family, Gonzales contacted the police and reported the assaults against complainant.
Ineffective Assistance of Counsel
In his first issue, appellant complains that he was denied effective assistance of counsel. Appellant does not claim that any one particular act or omission rendered counsel’s assistance ineffective, but, rather, urges that “counsel patently was not prepared to litigate the case because of a lack of experience and/or knowledge as demonstrated by his failure to properly formulate questions, to predicate and offer evidence, . . . and his handling of the evidence.”
A. Standard of Review
To prevail on a claim of ineffective assistance of counsel, appellant must show that (1) trial counsel’s performance was deficient, i.e., counsel’s performance fell below an objective standard of reasonableness, and (2) a reasonable probability exists that, but for counsel’s deficiencies, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687, 693, 104 S. Ct. 2052, 2064, 2067–68 (1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). A defendant has the burden to establish both of these prongs by a preponderance of the evidence, and a failure to make either showing defeats his ineffectiveness challenge. Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002). Because the reviewing court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance, appellant must overcome the presumption that, under the circumstances, the challenged action “might be considered sound trial strategy.” Strickland, 466 U.S. at 689, 104 S. Ct. at 2065.
Any allegation of ineffectiveness must be firmly founded in the record, which must demonstrate affirmatively the alleged ineffectiveness. Thompson, 9 S.W.3d at 813 (citing McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996)). We will not speculate to find trial counsel ineffective when the record is silent on counsel’s reasoning or strategy. Henderson v. State, 29 S.W.3d 616, 624 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d). In most cases, the undeveloped record on direct appeal will be insufficient to satisfy the dual prongs of Strickland because the reasonableness of counsel’s decisions often involves facts not appearing in the appellate record. Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003). Therefore, it is usually critical that the defendant obtain the necessary record in the trial court to rebut the Strickland presumption that counsel’s conduct was strategic. Thompson, 9 S.W.3d at 814; McCullough v. State, 116 S.W.3d 86, 92 (Tex. App.—Houston [14th Dist.] 2001, pet. ref’d).
This kind of record is best developed in a hearing on a motion for new trial or by application for a writ of habeas corpus. Jackson v. State, 973 S.W.2d 954, 957 (Tex. Crim. App. 1998); McCullough, 116 S.W.3d at 92. In rare cases, however, the record can be sufficient to prove that counsel’s performance was deficient, despite the absence of affirmative evidence of counsel’s reasoning or strategy. Robinson v. State, 16 S.W.3d 808, 813 n.7 (Tex. Crim. App. 2000).
B. Counsel’s Performance
Appellant acknowledges that many of the complaints raised regarding counsel’s performance were resolved or did not result in any harm. He complains generally about counsel’s performance during voir dire, suggesting that counsel had to be “instructed” and “educated” by the court and the State throughout the initial phase of trial. He admits, though, that counsel’s performance during voir dire “does not suggest outrageous conduct on the part of Appellant’s counsel.”
Appellant next points out that the State objected approximately 200 times, 90 percent of which objections were sustained, to counsel’s questioning of the various witnesses over the course of three days. Appellant urges not that these objections in some way rendered counsel’s performance deficient, but, rather, that they illustrate the fact that counsel was “ill-prepared by experience and/or education” to represent him. Appellant points to 14 specific acts during the guilt-innocence phase of trial as demonstrative of this fact: (1) counsel made an improper attempt to impeach a witness; (2) counsel attempted to mark an item already in evidence; (3) counsel did not know the predicate for admissibility of photographs; (4) counsel attempted to “grab” photographs from the jury; (5) counsel tried to have a business record modified; (6) counsel did not know the predicate for admissibility of a business record; (7) counsel did not know how to elicit a witness’s opinion as to appellant’s reputation; (8) counsel attempted to offer hearsay evidence; (9) counsel did not know how to solicit evidence of appellant’s good character; (10) counsel failed to object to the lack of a proper predicate as to the State’s expert; (11) counsel permitted the State improperly to bolster a witness’s testimony; (12) counsel relied on an alibi defense without an understanding of the concept of “on or about;” (13) counsel failed to request a limiting instruction in the court’s guilt-innocence charge; and (14) counsel failed to object to an erroneous instruction regarding “on or about.”
Additionally, appellant complains that counsel failed to ask him appropriate questions to establish his eligibility for community supervision, but acknowledges that counsel did recall him and establish his eligibility. Lastly, appellant complains that counsel failed to object to the State’s request or the court’s order that his sentences be cumulated. Many of the complaints raised about counsel’s performance are either no error, were cured by actions of either counsel or the court, or had no effect on the trial. For example, counsel’s attempt to impeach a State’s witness with a prior deferred adjudication could not have harmed appellant’s defense. His attempt to mark a document already in evidence likewise had no impact on the trial. Counsel’s ignorance of a court rule that the bailiff, rather than counsel, take exhibits from the jury could not have impacted the proceedings. Similarly, although appellant complains of counsel’s lack of knowledge of predicates, he makes no complaint that particular evidence was excluded as a result. Indeed, it was not.
The vast majority of “mistakes” noted by appellant are not argued beyond their inclusion in a laundry list of complaints. Appellant makes no effort to argue that he was harmed by any of counsel’s actions or inactions. Thus, he fails to meet his burden under the second Strickland prong. Appellant has failed in his burden to overcome the presumption that trial counsel provided reasonable and professional assistance. See Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). We overrule issue one.
Cumulation Order
In his second issue, appellant contends that the court erred in cumulating his sentences because the State failed to file a motion requesting cumulation, the State failed to present evidence in support of cumulation, and appellant had no prior notice that the court could cumulate the sentences. In his third issue, appellant argues that the evidence is insufficient to support the cumulation order.
A. Preservation of Error
In order to preserve a complaint as to the cumulation of sentences, an appellant must either object at the time of sentencing or complain in a motion for new trial. Mendenhall v. State, 15 S.W.3d 560, 567 (Tex. App.—Waco 2000), aff’d, 77 S.W.3d 815 (Tex. Crim. App. 2002). Appellant did neither. Thus, appellant’s complaints regarding lack of notice and a State’s motion to cumulate the sentences are not preserved for appellate review. See, e.g., Mendenhall, 15 S.W.3d at 567; Keith v. State, 975 S.W.2d 433, 433–34 (Tex. App.—Beaumont 1998, no pet.) (contention that imposition of consecutive, rather than concurrent, sentences was cruel and unusual punishment was not preserved for review in failing to raise issue in post-verdict motion for new trial or at trial). We overrule issue two.
B. No Evidence
In his third issue, appellant contends that the cumulation order is invalid because the evidence could support a finding that the offenses occurred prior to September 1, 1997, the date on which section 3.03(b)(2)(A), authorizing cumulation, became effective. See Act of May 31, 1997, 75th Leg., R.S., ch. 667, §§ 2(b), 8, 1997 Tex. Gen. Laws 2250, 2251, 2253 (current version at Tex. Pen. Code Ann. § 3.03(b)(2)(A) (Vernon Supp. 2006). Appellant acknowledges that the evidence suggests that the offenses occurred after this date, but urges that the State should not get the benefit of “on or about” language, granting it a 28-year window in which to charge a defendant with sexual assault of a child, but then also seek cumulation of an offense that may have occurred prior to the statute’s effective date. However, we need not address this scenario because, in the present case, both indictments allege that the offenses occurred in 1999 and complainant testified that she was six years old when the assaults occurred (she was born in 1993). Thus, the evidence does establish that the offenses occurred after September 1, 1997. Furthermore, when a child victim is unable to recall the exact dates upon which molestation occurred, the court may cumulate the sentences “as long as there is some evidence that the offenses occurred after September 1, 1997.” Hendrix v. State, 150 S.W.3d 839, 853 (Tex. App.—Houston [14th Dist.] 2004, pet. ref’d); Owens v. State, 96 S.W.3d 668, 672 (Tex. App.—Austin 2003, no pet.). The court was within its discretion to cumulate appellant’s sentences. We overrule issue three.
Factual Sufficiency of the Evidence
Appellant’s fourth issue challenges the factual sufficiency of the evidence. When conducting a factual-sufficiency review, we view all of the evidence in a neutral light. Ladd v. State, 3 S.W.3d 547, 557 (Tex. Crim. App. 1999). We will set aside the verdict only if (1) the evidence is so weak that the verdict is clearly wrong and manifestly unjust or (2) the verdict is against the great weight and preponderance of the evidence. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). We cannot conclude that the evidence is factually insufficient simply because we disagree with the verdict. See Watson v. State, 204 S.W.3d 404, 417 (Tex. Crim. App. 2006); King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). As the determiner of the credibility of the witnesses, the fact finder may choose to believe all, some, or none of the evidence presented. Cain v. State, 958 S.W.2d 404, 407 n.5 (Tex. Crim. App. 1997).
An opinion addressing factual sufficiency must include a discussion of the most important and relevant evidence that supports the appellant’s complaint on appeal. Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003). But see Roberts v. State, 221 S.W.3d 659, 665 n.11 (Tex. Crim. App. 2007). Moreover, an opinion reversing and remanding on factual-insufficiency grounds must detail all of the evidence and clearly state why the finding in question is factually insufficient and under which ground. Goodman v. State, 66 S.W.3d 283, 286–88 (Tex. Crim. App. 2001); Johnson, 23 S.W.3d at 7.
Appellant argues that the house at which the offenses occurred was heavily populated and it “strains the bounds of credulity” to believe that, except for one incident described by Gonzales, no one ever saw appellant assault complainant. He further notes Dr. Jorge Mendoza’s testimony that complainant’s physical examination revealed no evidence of abuse. Lastly, appellant points to the delay in reporting the assault to the police (five years) as evidence weighing against the jury’s verdicts.
Complainant detailed in her testimony multiple, specific acts of assault that support the jury’s verdicts. Her testimony was corroborated by that of her mother, who testified to complainant’s outcry statements. Although it is true that multiple people lived in the house during the time frame of the assaults, the evidence supports a finding that appellant nevertheless had the opportunity to assault complainant, because he occasionally volunteered to stay home and to watch the children while the other adults were gone. Furthermore, complainant testified that he assaulted her when other adults were at home, but in different areas of the house. For instance, one assault occurred while complainant’s mother was in the kitchen.
Appellant further argues that the lack of physical evidence of assault weighs against the sufficiency of the evidence. “The lack of physical or forensic evidence is a factor for the jury to consider in weighing the evidence.” Lee v. State, 176 S.W.3d 452, 458 (Tex. App.—Houston [1st Dist.] 2004), aff’d, 206 S.W.3d 620 (Tex. Crim. App. 2006). The lack of physical or medical evidence does not render the evidence insufficient to support the verdict. Washington v. State, 127 S.W.3d 197, 204-05 (Tex. App.—Houston [1st Dist.] 2003, pet. dism’d). Further, although Mendoza did testify that complainant suffered no physical injury, that fact is not inconsistent with complainant’s testimony. See Tinker v. State, 148 S.W.3d 666, 669 (Tex. App.—Houston [14th Dist.] 2004, no pet.) (citing Garcia v. State, 563 S.W.2d 925, 928 (Tex. Crim. App. 1978) (victim’s testimony is sufficient to prove that sexual contact occurred despite no physical evidence)).
Lastly, appellant argues that the delay in reporting the assault to the police weighs against the truthfulness of the allegations and, necessarily, against the sufficiency of the evidence. Yet, Gonzales explained that she did not report the abuse initially because she was afraid that the State would take complainant from her and, further, because appellant agreed to move away and never to return. When Gonzales saw appellant in town several years later, she reported the abuse despite her fears of losing complainant because she worried that appellant would abuse other children in the family. As the sole judge of the credibility of the witnesses, the jury was free to believe Gonzales’s explanation for the delay in reporting the assault. See Cain, 958 S.W.2d at 407 n.5.
After neutrally examining all of the evidence, we hold the proof of guilt is not so weak that the verdict is clearly wrong or manifestly unjust, nor is the verdict against the great weight and preponderance of the evidence. See Johnson, 23 S.W.3d at 10–11. We overrule issue four.
Conclusion
We affirm the judgment of the trial court.
Tim Taft
Justice
Panel consists of Justices Taft, Hanks, and Higley.
Do not publish. See Tex. R. App. P. 47.2(b).