Opinion issued April 19, 2007
In The
Court of Appeals
For The
First District of Texas
NO. 01-05-01134-CR
ERICK RODRIGO COUOG, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 178th District Court
Harris County, Texas
Trial Court Cause No. 1022748
A jury found appellant, Erick Rodrigo Couog, guilty of the offense of aggravated sexual assault of a child under 14 years of age (1) and assessed punishment at 30 years' confinement in prison. In three issues, appellant contends that the trial court erred in admitting outcry testimony because (1) there was no preliminary hearing regarding the reliability of the statements as required by article 38.072 of the Texas Code of Criminal Procedure, (2) (2) more than one outcry witness testified, (3) the admission of the outcry statements violated his right to confrontation under the United States and Texas constitutions. In three additional issues, appellant complains that there was legally and factually insufficient evidence and that he received ineffective assistance of counsel. We affirm.
Background
Blanca Rangel ("Mother"), the mother of two young daughters, lived with appellant, who is the biological father of the youngest child. In April of 2005, Mother left her children with her sister, Benita Alcocer ("Benita"), while she went to work. Maria Rangel ("Aunt"), Mother's other sister, came over to visit. Aunt testified that the eldest of Mother's daughters, the five-year-old complainant, wanted to use the restroom frequently and was crying because her "private was hurting." Benita testified that she asked the complainant to use the bathroom, but the complainant said, "no because it hurt a lot."
Benita, Aunt, and Blanca's mother ("Grandmother"), took the complainant to a bedroom in Benita's home to view the area that the complainant spoke of and noticed a pinkish rash on the complainant's genitalia. The complainant was afraid to speak and said her "Poppy," referring to appellant, was going to spank her and that he would place a stick in her part when she would misbehave. The complainant also told Aunt that, when she misbehaved, Poppy would give her five times, but, when she behaved well, he would give her less. The complainant told Aunt that appellant told her, "he would pop a small sore with a small stick and that it was not going to hurt." Benita also testified to the discussion between Aunt and the complainant.
Following Aunt's discussion with the complainant, Aunt called Child Protective Services ("CPS") and took the complainant to Memorial Hermann Hospital for medical treatment. Mother was angry when she arrived at the hospital about 20 minutes later because she felt her sisters should have called her before contacting CPS. The complainant would not talk to the emergency room nurse, Wendy Pickett, with Mother in the room. After Mother left the room, Pickett asked what happened and the complainant responded that Poppy placed "sticks" and fingers in her part and it hurt, and she pointed to her vaginal and rectal area.
Ross Bennett, a forensic nurse examiner with the Memorial Hermann Forensic Nursing Services, testified that, during his medical forensic evaluation, the complainant said that appellant "pokes me with his fingers, then he uses a stick. It hurts and I cry a lot. He has put his pee-pee down there. It happens in my bed. When I am bad, he pokes me with a stick." Bennett testified that the complainant's vaginal area was inflamed, red, and very painful to touch, and that there were two lacerations and moisture in complainant's anus that were also painful during the exam. Bennett further testified that the complainant's anal lacerations would be consistent with an adult penis penetrating her anus. The complainant was taken into custody by CPS following her examination, and Aunt and Benita returned to Benita's house when appellant arrived at the house. Benita testified that appellant said that he was nervous because he thought that the complainant's father had taken her. Appellant denied committing any sexual act or improper touching of his "daughter [the complainant]."
The next day, the complainant was interviewed at the Children's Assessment Center (CAC) by forensic interviewer Claudia Mullin. Mullin testified that complainant's genitals were uncomfortable and that she was crying about not wanting to go to the bathroom because it hurt. The complainant identified appellant as the person who touched her in "the front" and "poked her in her butt" and demonstrated with the anatomical dolls what occurred. The complainant also told Mullin that "it hurt and something red came out of her pompy." Although the complainant said she never saw the stick that appellant poked her with, she pointed to the beige background of a doll's skirt print to indicate the color of the stick when Mullin asked her the color of the stick.
Mother testified that the complainant would, "scratch herself in the front and back and was constantly urinating [on] herself." Mother also believed the complainant had an infection, and she did not believe the allegations against appellant. Mother further testified that, if she thought the complainant was harmed by a family member, she would try to remove the complainant from contact with that person. The complainant told Benita that she had to speak well of appellant because if she spoke poorly of him, Mother would scold her.
Outcry Testimony
In points of error one, two, and three, appellant contends that the trial court erred in admitting the complainant's outcry statements because (1) no preliminary hearing was conducted to determine the reliability of the statements, as required by article 38.072 of the Texas Code of Criminal Procedure, (2) more than one outcry witness was allowed to testify, and (3) the admission of the outcry statements violated his right to confrontation under the U.S. and Texas constitutions. Appellant, however, has waived each of these contentions.
The trial court did not conduct a hearing on the admissibility of the outcry statement, despite appellant's request for a hearing in his pretrial motion and multiple hearsay objections during Aunt's testimony. Appellant, however, did not specifically object to the trial court's denial of such hearing, he did not object to the alleged hearsay every time it was offered, and he did not request a running objection to the testimony of the outcry statement. In order to preserve error for appellate review, appellant must make a proper and specific objection and receive an adverse ruling on that objection. Tex. R. App. P. 33.1; Diaz v. State, 125 S.W.3d 739, 743 (Tex. App.--Houston [1st Dist.] 2003, pet. ref'd) (if hearing not held, appellant did not object to the trial court's denial of that hearing, error not preserved). Further, appellant did not object to similar evidence admitted by Claudia Mullin, Wendy Pickett, or Benita Alcocer. See Duncan v. State, 95 S.W.3d 669, 672 (Tex. App.--Houston [1st Dist.] 2002, pet. ref'd) (any error in admitting evidence cured when same evidence comes in elsewhere without objection).
Accordingly, appellant failed to preserve the error complained of on appeal, and the trial court's failure to conduct a hearing on outcry testimony was harmless error because similar evidence was admitted by other witnesses without objection.
We overrule point of error one.
Multiple Hearsay Witnesses
In point of error two, appellant argues that the trial court erred in permitting hearsay outcry testimony from multiple witnesses. The State identified three outcry witnesses--Maria Rangel, Wendy Pickett, and Claudia Mullin--in its pre-trial Notice of Intent to Use Child Abuse Victim's Hearsay Statement. All three witnesses testified at trial regarding outcry statements made to them by the complainant, and a fourth witness, Benita Alcocer, also testified at trial regarding hearsay outcry statements made to her by the complainant. Appellant also notes that the testimony from the various witnesses referenced the same events and did not refer to any separate or discrete occurrence of abuse.
More than one outcry witness may testify if it is first determined that the outcry concerned separate and discrete events and was not merely a repetition of the same event told to different individuals. Brown v. State, 189 S.W.3d 382, 387 (Tex. App.--Texarkana 2006, pet. ref'd). Appellant failed to preserve the issue of multiple outcry witnesses by not objecting to the testimony of the four witnesses. See Tex. R. App. P. 33.1.
We overrule point of error two.
Confrontation Clause
In point of error three, appellant complains that five witnesses testified to hearsay statements made by the complainant that were testimonial in nature and were inadmissible as violations of appellant's constitutional rights to confrontation and cross-examination under the U.S. and Texas constitutions. Appellant contends that, because she did not testify during the trial, the complainant was not subject to any cross-examination by appellant's attorney. In addition, the State did not demonstrate that appellant had prior opportunity to cross-examine the complainant regarding any hearsay statements.
In Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354 (2004), the United States Supreme Court held that testimonial hearsay statements of a declarant who does not appear and testify at trial are inadmissible under the Confrontation Clause of the Sixth Amendment unless the proponent of those statements demonstrates that the declarant is unavailable and that the defendant has had prior opportunity to cross-examine the declarant regarding those statements. Id. at 53-54, 124 S. Ct. at 1365. Appellant's objection must specifically assert a violation of the Confrontation Clause in order to preserve such a challenge on appeal. See Reyna v. State, 168 S.W.3d 173, 179 (Tex. Crim. App. 2005) (explaining that objection not preserved for appeal when not specific and can be construed as falling under either Rules of Evidence or Confrontation Clause); see also Campos v. State, 186 S.W.3d 93, 98 (Tex. App.--Houston [1st Dist.] 2005, no pet.) (holding that defendant waives appellate challenge based on Confrontation Clause for failure to object at trial).
Here, appellant's Motion to Require Child to Testify was denied before any evidence was admitted. When witnesses testified about the complainant's statements, appellant did not specifically object to a violation of the Confrontation Clause during trial. Accordingly, we hold that appellant waived a challenge of the Confrontation Clause challenge on appeal by failing to specifically object to such during trial. See Tex. R. App. P. 33.1(a).
We overrule appellant's point of error three.Sufficiency of Evidence
In points of error five and six, appellant argues that the evidence presented at trial was legally and factually insufficient to establish the requisite element that appellant caused complainant's anus to contact his sexual organ. The jury was charged that
if you find from the evidence beyond a reasonable doubt that . . . the defendant . . .did then and there unlawfully, intentionally or knowingly cause the anus of [the complainant], a person younger than fourteen years of age and not the spouse of the defendant, to contact the sexual organ of the defendant, then you will find the defendant guilty as charged in the indictment.
Standard of Review
In reviewing a legal-sufficiency challenge, we view the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). When conducting a factual-sufficiency review, we view all of the evidence in a neutral light. Cain v. State, 958 S.W.2d 404, 408 (Tex. Crim. App. 1997). We will set the verdict aside 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). Under the first prong of Johnson, we cannot conclude that a conviction is "clearly wrong" or "manifestly unjust" simply because, on the quantum of evidence admitted, we would have voted to acquit had we been on the jury. Watson v. State, 204 S.W.3d 404, 417 (Tex. Crim. App. 2006). Under the second prong of Johnson, we cannot declare that a conflict in the evidence justifies a new trial simply because we disagree with the jury's resolution of that conflict. Id. Before finding that evidence is factually insufficient to support a verdict under the second prong of Johnson, we must be able to say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury's verdict. Id. In conducting a factual-sufficiency review, we must also discuss the evidence that, according to the appellant, most undermines the jury's verdict. See Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).
The standard of review is the same as it is for direct evidence even if circumstantial evidence comprises the entire case. King v. State, 29 S.W.3d 556, 565 (Tex. Crim. App. 2000). Circumstantial evidence alone may be enough to support the jury's verdict. Smith v. State, 965 S.W.2d 509, 515 (Tex. Crim. App. 1998); Kutzner v. State, 994 S.W.2d 180, 184 (Tex. Crim. App. 1999).
Legal Sufficiency
In support of his legal sufficiency challenge, appellant asserts that no rational trier of fact could find all of the essential elements of the offense true beyond a reasonable doubt because evidence presented at trial only supports a rational finding that, "an unknown object" was used to make contact with the complainant's anus. In order for the evidence to be legally sufficient, the trier of fact had to find beyond a reasonable doubt that appellant caused the complainant's anus to contact his sexual organ and that complainant was neither the appellant's spouse nor older than 13 years of age. Tex. Pen. Code Ann. § 22.021 (Vernon 2005).
A rational trier of fact could conclude that circumstantial evidence was legally sufficient for an aggravated sexual assault conviction. Everage v. State, 848 S.W.2d 357, 359 (Tex. App. --Austin 1993, no pet.). In Everage, the circumstantial evidence included doctor's testimony about an abrasion on and enlargement of the complainant's vaginal opening, and the court held that this evidence was sufficient to establish that defendant penetrated the six-year-old girl's vagina with his finger, as alleged in the indictment. Id.
Here, the complainant told forensic examiner, Ross Bennett, at the hospital that appellant, "put his pee-pee down there," and Bennett testified that the complainant had abnormal moisture and lacerations in her anus that could be consistent with the penetration by an adult penis. Although the complainant said that she never saw "the stick" that appellant poked her with, she pointed to the beige background of a doll's skirt print to indicate the color of the stick when CAC interviewer, Claudia Mullin, asked her the color of the stick. Further, Mullin testified that the complainant would not necessarily know that an adult male sexual organ becomes hard and that it could feel like a stick if it penetrates part of the body.
While the evidence connecting appellant to the aggravated sexual assault of complainant was circumstantial, a rational trier of fact could find beyond a reasonable doubt that appellant caused complainant's anus to contact his sexual organ and that complainant was neither the appellant's spouse nor older than 13 years of age. Therefore, we hold that the evidence was legally sufficient to support appellant's conviction for aggravated sexual assault of a minor.
We overrule point of error five.
Factual Sufficiency
Appellant considers the same evidence mentioned in his legal sufficiency argument and argues that the evidence is not so strong that, even when viewed in an entirely neutral light, it is clear that the jury was rationally justified in finding all of the essential elements true beyond a reasonable doubt.
It is not required that every fact point directly and independently to the guilt of the accused in a prosecution based on circumstantial evidence; the cumulative force of all the incriminating circumstances may be sufficient. See Barnes v. State, 876 S.W.2d 316, 321 (Tex. Crim. App. 1994). Further, credibility was for the jury to assess and to weigh, not this Court. See Johnson, 23 S.W.3d at 7.
The evidence showed that: the complainant was five years old and was the daughter of appellant's girlfriend; complainant said that appellant "put his pee-pee down there"; appellant would punish the complainant by placing his penis in her vagina and rectum; the complainant identified the color of "the stick," with which appellant poked her, as being beige; and the abnormal moisture and lacerations in the complainant's anus could be consistent with the penetration of an adult penis. After objectively reviewing the record, we have determined that this evidence is not so weak as to indicate that a manifest injustice had occurred or was greatly outweighed by contrary evidence. See Zuliani v. State, 97 S.W.3d 589, 593-94 (Tex. Crim. App. 2003).
Appellant points to the fact that the complainant stated that she did not see appellant's penis. We do not find this persuasive, and conclude that, viewing all the evidence in a neutral light, the evidence is factually sufficient to sustain appellant's conviction for aggravated sexual assault of a minor.
We overrule point of error six.
Ineffective Assistance of Counsel
In point of error four, appellant contends that he was denied effective assistance of counsel at the punishment phase of trial because counsel failed to file an election for jury punishment. Specifically, appellant complains that allowing the trial court to assess punishment deprived appellant of the opportunity for the jury to assess community supervision, and, instead, appellant was subjected to a mandatory prison sentence between five years and life. See Tex. Pen. Code Ann. § 12.32 (Vernon 2003); § 22.021(e) (Vernon Supp. 2006).
Standard of Review
Both the United States and Texas constitutions guarantee an accused the right to assistance of counsel. U.S. Const. Amend. VI; Tex. Const. art. I, § 10; Tex. Code Crim. Proc. Ann. art. 1.05 (Vernon 2005). This right includes the right to reasonably effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 683-86, 104 S. Ct. 2052, 2062 (1984); Ex parte Gonzales, 945 S.W.2d 830, 835 (Tex. Crim. App. 1997). To prove ineffective assistance of counsel, appellant must show that (1) trial counsel's representation fell below an objective standard of reasonableness, based on prevailing professional norms and (2) the result of the proceeding would have been different but for trial counsel's deficient performance. Strickland, 466 U.S. at 688-92, 104 S. Ct. at 2064-67; see also Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). Appellant has the burden of proving his claim by a preponderance of the evidence. Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998). We apply a strong presumption that trial counsel was competent. See Thompson, 9 S.W.3d at 813. When, like here, there was no motion for new trial, we presume counsel's actions and decisions were reasonably professional and motivated by sound trial strategy. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994); Graves v. State, 176 S.W.3d 422, 437 (Tex. App.--Houston [1st Dist.] 2004, pet. stricken).
Analysis
Appellant argues that his trial attorney's failure to file the proper election for the jury to assess punishment fell below the standard of effective assistance of counsel. Appellant, however, does not address the second requirement, that, but for the counsel's error, the result of the proceedings would have been different.
In Ex Parte Canedo, 818 S.W.2d 814 (Tex. Crim. App. 1991), the Court of Criminal Appeals held that a defense trial counsel's erroneous advice that the defendant should have the trial court, rather than the jury, assess punishment, fell below reasonable representation and deprived the defendant of the opportunity of the jury to assess punishment when defendant was convicted of aggravated sexual assault of a child and the trial court sentenced him to 10 years in the Texas Department of Correction. Id. at 815. Ex Parte Canedo is distinguishable because harm was clear in Canedo. The jurors were surprised they were not assessing punishment and mentioned in a note to the trial court that they would have given defendant probation. Id. After learning of the note, defense counsel indicated that he thought he made a mistake in going to the trial judge. Id. The note in Canedo was evidence of the second prong in an ineffective assistance of counsel analysis as proscribed by Strickland, that, but for the counsel's erroneous advice, the defendant would have been given probation instead of 10 years in prison. Here, appellant fails to establish the second prong of the test. Furthermore, appellant has failed to develop a record sufficient to show that his counsel's representation fell below an objective standard of reasonableness. The record reflects that the jury returned with a guilty verdict in approximately 37 minutes and clearly did not believe appellant's testimony. Appellant's trial counsel may have been concerned that, after such a quick response on guilt, the jury might have imposed a lengthy sentence. Appellant failed to prove either prong of Strickland.
Accordingly, we overrule point of error four. Conclusion
We affirm the judgment of the trial court.
George C. Hanks, Jr.
Justice
Panel consists of Justices Taft, Alcala, and Hanks.
Do not publish. Tex. R. App. P. 47.2(b).
1. Tex. Pen. Code Ann. § 22.021 (Vernon Supp. 2006) 2. Tex. Code Crim. Proc. Ann. art. 38.072 (Vernon 2003).