Opinion Issued July 3, 2008
In The
Court of Appeals
For The
First District of Texas
NO. 01-07-00290-CR
ALLAN SANTIAGO SMITH, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 176th District Court
Harris County, Texas
Trial Court Cause No. 1058169
MEMORANDUM OPINION
Appellant Allan Santiago Smith pleaded not guilty to the felony offense of aggravated sexual assault of a child. See Tex. Penal Code Ann. § 22.021 (Vernon Supp. 2007). The jury found Smith guilty and assessed punishment at ten years’ confinement. In eight issues, Smith contends that (1) the evidence is legally and factually insufficient to support a guilty verdict; (2) the trial court erred in allowing certain testimony; and (3) his counsel was constitutionally ineffective. We affirm.
Background
In the fall of 2005, Ivette planned to take two of her children, including her four-year-old daughter S.H., to her mother and step-father’s house to babysit. Ivette is the step-daughter of appellant Smith. The children did not want to go and began “throwing a fit.” When Ivette asked S.H. why she did not want to go, S.H. told her that Smith “tries to suck lips.” Upon hearing this, Ivette took S.H. to see her day care teacher, J. Forrester, with whom S.H. was very close. After S.H. talked with Forrester, Ivette believed that someone had sexually assaulted S.H. Ivette then went to her mother-in-law’s house to discuss the situation with other family members, including her husband’s uncle, a former district attorney, her husband’s aunt, a former CPS worker, and her husband’s cousin, a Pasadena police officer. They reported the assault to the police a couple of days later.
Sergeant Vasquez responded to the call and interviewed S.H. and her parents. He then referred the case to the Harris County Sheriff’s Department. Harris County Detective J. Fitzgerald met S.H. at the Children’s Assessment Center (CAC). There, forensic interviewer Susan Odhiambo interviewed S.H. while Fitzgerald observed on closed-circuit television. After the interview with Odhiambo, during which S.H. made a “detailed disclosure” of sexual abuse, Dr. Reena Isaac, a physician at the CAC, examined S.H. Isaac did not find any physical signs of abuse, but S.H. recounted a history of the abuse to Isaac, who transcribed it in her report.
At trial, the defense objected to Odhiambo testifying to S.H.’s statement to her as hearsay. The State responded that Odhiambo was an outcry witness, but then conceded that Forrester would have been the first outcry witness. Accordingly, the judge ruled that Odhiambo could not testify to S.H.’s statements during the interview. The trial court, however, allowed Odhiambo to testify that S.H. made a detailed disclosure of sexual abuse without providing any specific details. Odhiambo also testified that the interview was video recorded.
Dr. Isaac testified, without objection, to S.H.’s disclosures to her during S.H.’s physical examination. Isaac testified that S.H. stated that Smith touched her on “her booty and her private part.” When Isaac clarified what she meant, S.H. told Isaac that Smith “put his private part in my honey pot.” S.H. also told Isaac that Smith asked her, “Doesn’t this feel good?” to which she responded no. In response to Isaac’s question, S.H. stated that “wet stuff” came out of Smith’s private part. In addition, S.H. told Isaac that she could not see Smith’s private part, and that this only occurred one time. The State admitted Isaac’s report without objection. The report states: “Child eventually discloses that Allen [sic] has touched her private part and has ‘wiped her off (her genital area) w/ a towel or toilet paper’ after touching her w/ his private part.” The report also indicates that according to S.H.’s mother, in the year leading up to her outcry, S.H. began “masturbating/touching herself, touching a 13 y/o boy,” which continued despite S.H.’s mother’s insistence that it stop.
S.H. testified at trial and identified Smith as the perpetrator. S.H. identified her “middle part” as a body part no one should touch and the part where she goes “pee-pee.” She also testified that she calls that part her “honey pot.” S.H. stated that she was in the bathroom with Smith when he pulled down her shorts and his shorts and underwear, and lay down on the floor. At that time, he told S.H. to get on top of him, and S.H. testified that she got “on his middle part.” S.H. testified that it hurt, and she told him it did not feel good when he asked her. Following this, Smith got some toilet paper to wipe S.H.’s private because “he had wet stuff in his private.” S.H. testified that, after he wiped her, she pulled up her pants and went to the living room to watch cartoons. During cross-examination, S.H. testified that her mother helped her to remember what to say at trial. On re-direct, S.H. testified that she understood the difference between the truth and a lie, and stated that she had not lied at trial. In response to further defense questioning, she stated that she said what her mother had told her to say.
Irene Smith, appellant’s wife, testified on behalf of Smith. She had been married to Smith for seventeen years, and her daughter, S.H.’s mother, has not liked Smith the entire time. She further testified that on the day of the offense, S.H. left her sight only twice, and each time lasted for one or two minutes only. The first time, Irene found S.H. at the entrance to her bedroom, while Smith was using the restroom. When she questioned Smith, he stated that he did not know that S.H. was in the room. The second time that S.H. left Irene’s sight, S.H. had returned to the bedroom and said that she wanted Smith to tie her shoes.
Smith also testified at trial. He denied committing the offense. He further testified that his relationship with his step-daughter had improved over time.
Legal and Factual Sufficiency
Smith contends that the evidence is legally and factually insufficient to support a guilty verdict because the State failed to establish the place and time of the offense and because S.H.’s accusation is too vague and implausible to support the jury’s finding of guilt.
A. Standard of Review
When evaluating the legal sufficiency of the evidence, we view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Drichas v. State, 175 S.W.3d 795, 798 (Tex. Crim. App. 2005). The standard is the same for both direct and circumstantial evidence cases. King v. State, 895 S.W.2d 701, 703 (Tex. Crim. App. 1995). We do not resolve any conflict of fact, weigh any evidence, or evaluate the credibility of any witnesses, as this was the function of the trier of fact. See Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999); Adelman v. State, 828 S.W.2d 418, 421 (Tex. Crim. App. 1992); Matson v. State, 819 S.W.2d 839, 843 (Tex. Crim. App. 1991).
When evaluating factual sufficiency, we consider all the evidence in a neutral light to determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006). 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 verdict 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, 204 S.W.3d at 417. 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. 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).
B. Sexual Assault of a Child
A person commits the offense of sexual assault of a child if the actor intentionally or knowingly causes the penetration of the sexual organ of a child by any means. Tex. Penal Code Ann. § 22.021(a)(1)(B) (Vernon Supp. 2007). A “child” is defined as a person younger than seventeen years of age who is not the spouse of the defendant. Id. § 22.011(c)(1). Sexual assault of a child is aggravated when the victim is younger than fourteen years of age. Id. § 22.021(a)(2)(B).
C. Sufficiency of the Evidence
The indictment alleged that the offense took place “on or about” November 26, 2005. The testimony at trial suggested that the offense actually took place on October 29, 2005. Contrary to Smith’s assertion, the State is not required to prove the precise date of the offense, “as long as the date is anterior to the presentment of the indictment and within the statutory limitation period.” See Garcia v. State, 981 S.W.2d 683, 685–86 (Tex. Crim. App. 1998); Sledge v. State, 953 S.W.2d 253, 256 (Tex. Crim. App. 1997). The fact that the State proved that the offense occurred on a date earlier than the one alleged in the indictment, thus, does not render the State’s evidence insufficient.
S.H. testified that the sexual assault occurred at Smith’s house in his bathroom. Her testimony describing the assault and its location sufficiently supports a finding that the assault occurred at Smith’s home. Smith’s assertions notwithstanding, the uncorroborated testimony of a sexual assault victim under fourteen years of age can be sufficient to support a conviction, without medical or physical evidence. See Tex. Code Crim. Proc. Ann. § 38.07 (Vernon Supp. 2007); see also Sandoval v. State, 52 S.W.3d 851, 854 n.1 (Tex. App.—Houston [1st Dist.] 2001, pet. ref’d); Garcia v. State, 563 S.W.2d 925, 928 (Tex. Crim. App. 1978) (victim’s testimony alone was sufficient evidence of penetration and sufficient to identify defendant as assailant without medical evidence).
In a legal sufficiency analysis, we view the evidence in a light most favorable to the State, and therefore do not evaluate the credibility of witnesses. See Dewberry, 4 S.W.3d at 740. Under this standard, the record reflects that Smith had sexual intercourse with S.H., and that S.H. identified Smith in court as the assailant. We therefore hold that the evidence is legally sufficient to support the verdict.
D. Factual Sufficiency
Smith asserts that the evidence is factually insufficient for the same reasons that he claims the evidence is legally insufficient. Smith points to S.H.’s testimony that he claims was too vague and implausible to support the verdict due to S.H.’s descriptions of male and female anatomy, her inability to “respond to basic questions about time, location, or to leading questions,” and the contradictory testimony presented. In addition, he notes that S.H. testified that her mother coached her testimony, making it unbelievable.
Smith relies on Sessums v. State to contend that S.H.’s identification of her and Smith’s sexual organs was too vague to conclude that the evidence is factually sufficient. No. 06-02-00149-CR, 2003 WL 21473409, at *2–3 (Tex. App.—Texarkana June 27, 2003), vacated on other grounds, 2003 WL 22855433 (Tex. Crim. App. 2003) (mem. op., not designated for publication). In Sessums, a grandfather was accused of penetrating the child’s anus with his finger. Id. The record contained evidence that the child stated that Sessums had touched his private parts and his “bobo,” and one witness testified that the child meant his “bottom” when he said “bobo.” Id. The appellate court held that the evidence was legally insufficient to show that the child was specifically referring to his anus. Id. Similar problems do not exist in this case.
S.H. testified that Smith put his “middle part” in her “middle part.” She indicated that her middle part, her “honey pot,” and her private part were all the same areas. She also testified that her middle part was “down there,” was a part nobody was supposed to touch, and affirmed that it was the area from which she goes “pee-pee.” With respect to Smith, she testified to his middle part as his private that had “wet stuff.” Child victims are not expected “to testify with the same clarity and ability as is expected of mature and capable adults.” Villalon v. State, 791 S.W.2d 130, 134 (Tex. Crim. App. 1990). If a child has sufficiently communicated to the trier of fact that the touching occurred to any part of the genitals, then the evidence is sufficient to support a conviction regardless of the unsophisticated language that the child uses. Clark v. State, 558 S.W.2d 887, 889 (Tex. Crim. App. 1977). A reasonable juror could have determined that S.H. intended to refer to her and Smith’s sexual organs when she described them as “middle part,” “down there,” and the area where she goes “pee-pee.” See Guia v. State, 723 S.W.2d 763, 765 (Tex. App.—Dallas 1986, pet. ref’d) (finding testimony that appellant touched her on her “private place,” where she “went to the bathroom,” and where she “tee-teed” sufficient to prove sexual contact); Mallet v. State, 9 S.W.3d 856, 863–64 (Tex. App.—Fort Worth 2000, no pet.) (finding evidence legally and factually sufficient to support verdict even though child did not use drawings or anatomically correct dolls to demonstrate that “butt” or “backside where she goes to the bathroom” referred to anus); Bryant v. State, 685 S.W.2d 472, 475 (Tex. App.—Fort Worth 1985, pet. ref’d) (holding child’s testimony to being touched “between the legs” sufficient to prove sexual contact); Scott v. State, 202 S.W.3d 405, 409–10 (Tex. App.—Texarkana 2006, pet. ref’d) (concluding that child’s use of the term “private areas” and her failure to use the technical term “genitals” did not render the evidence legally or factually insufficient).
Smith further contends that we should reject S.H.’s testimony because the means of, and the physical manner in which, she described the assault is implausible. S.H. testified that Smith pulled her shorts down but did not remove them. Smith asserts that a sexual assault would be difficult to manage in such circumstances. He points to the contradictory testimony from Irene Smith that S.H. was out of her sight for only a couple of minutes at a time. Smith cites S.H.’s mother’s testimony confirming that S.H.’s mother had reported to Irene that S.H. lied a lot. Smith points to the fact that he did not spend time with the children and does not have a history or the profile of a child abuser. Smith points to S.H.’s contradictory testimony concerning whether her mother coached her testimony.
Ultimately, none of this evidence renders the events to which S.H. testified an impossibility, but rather raises credibility issues for a fact-finder to resolve. The jury heard this evidence and was free to evaluate it. The fact-finder determines the weight to place on contradictory testimonial evidence because that determination depends on the fact-finder’s evaluation of credibility and demeanor. Cain v. State, 958 S.W.2d 404, 408–09 (Tex. Crim. App. 1997). As the determiner of the credibility of the witnesses, the fact-finder may choose to believe all, some, or none of the testimony presented. Id. at 407 n.5. As an appellate court, we may not re-weigh the evidence or substitute our judgment for that of the fact-finder. Johnson v. State, 967 S.W.2d 410, 412 (Tex. Crim. App. 1998); see also Wilson v. State, 863 S.W.2d 59, 65 (Tex. Crim. App. 1993); King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000).
We hold that the State’s evidence was not so obviously weak or contrary to the overwhelming weight of the evidence as to be factually insufficient; factually sufficient evidence therefore supports the verdict.
Testimony
In his third and fourth issues, Smith contends that the trial court erred by allowing Odhiambo to testify about the interview she conducted with S.H. We review a trial court’s decision to admit evidence under an abuse of discretion standard. Torres v. State, 71 S.W.3d 758, 760 (Tex. Crim. App. 2002). We will not reverse a trial court’s ruling unless that ruling falls outside the zone of reasonable disagreement. Burden v. State, 55 S.W.3d 608, 615 (Tex. Crim. App. 2001).
Smith first objects to Odhiambo’s statement that S.H. made a “detailed disclosure of sexual abuse” because it was impermissible 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). A declarant need not directly quote an out-of-court “statement” to run afoul of the hearsay rules. Head v. State, 4 S.W.3d 258, 261 (Tex. Crim. App. 1999). In Head, a child sexual assault case, a witness related the outcry statements of the victim. Id. The police investigator then took the stand. Id. The trial court permitted him to testify, over objection, that he had taken a statement from the victim and the victim’s mother, and that these statements were consistent with the testimony of the outcry witness. Id. at 260. The court in Head held that permitting this testimony was not an abuse of discretion. Id. It held that whether disputed testimony is impermissible hearsay depends on whether it compels an “inescapable conclusion” that the evidence is being offered to prove the substance of an out-of-court statement. Id. at 262. The court went on to note that “the focus of the inquiry should remain on whether or not the disputed testimony is being offered to prove an out-of-court statement.” Id. at 262 n. 3.
The record here does not compel the “inescapable conclusion” that the reason for the testimony was to identify Smith as the assailant. Odhiambo did not testify as to any specifics of S.H.’s disclosure, nor did she state whether S.H.’s statement was consistent with S.H.’s statement to Dr. Isaac or her testimony. Under Head, the trial court did not abuse its discretion in allowing this testimony.
Smith further contends that the trial court erred in allowing Odhiambo to testify that her interview with S.H. had been video-recorded. Because the videotape was not offered into evidence, Smith asserts that the State should not have been allowed to refer to its to bolster S.H.’s otherwise insufficient statements, thus affecting his substantial rights.
The record, however, does not contain any evidence to suggest that the State’s reference to the videotape bolstered S.H.’s testimony. Odhiambo did not testify as to the contents of the videotape, nor did she suggest that the videotape was consistent with S.H.’s later statements. We hold that the trial court did not abuse its discretion in allowing this testimony.
Ineffective Assistance of Counsel
In his fifth through eighth issues, Smith contends that his counsel rendered constitutionally ineffective assistance, pointing to counsel’s (1) failure to object to Isaac’s report and testimony; (2) failure to preserve error by objecting to all the testimony concerning the videotaped interview; (3) failure to request a hearing on S.H.’s competency; and (4) failure to request a taint hearing.
Standard of Review
To prevail on a claim of ineffective assistance of counsel, the defendant must show that (1) his counsel’s performance was deficient and (2) a reasonable probability exists that the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). The first prong of Strickland requires the defendant to show that counsel’s performance fell below an objective standard of reasonableness. Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). Thus, the defendant must prove objectively, by a preponderance of the evidence, that his counsel’s representation fell below professional standards. Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002). The second prong requires the defendant to show a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. See Strickland, 466 U.S. at 693–94, 109 S. Ct. at 2067–68; see also Thompson, 9 S.W.3d at 812. A reviewing court should indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must also 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, and the record must affirmatively demonstrate the alleged ineffectiveness.” Thompson, 9 S.W.3d at 813 (citing McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996)). Under normal circumstances, the record on direct appeal will not be sufficient to show that counsel’s representation was so deficient and lacking in tactical or strategic decision making as to overcome the presumption that counsel’s conduct was reasonable and professional. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002).
Analysis
The record in this case does not show any conduct outside the wide range of reasonable professional assistance, and none of counsel’s alleged errors, if corrected, would have probably resulted in a different outcome. First, counsel could have chosen not to object to Isaac’s report and testimony for strategic reasons. It contained evidence that S.H. had been exhibiting sexualized behavior prior to the date she reported the offense, including touching the genitals of a thirteen-year-old boy and a six-year-old boy. Counsel presented the theory that S.H. described a sexual assault because of these experiences and not because Smith assaulted her. Isaac’s report provided the basis for this theory. In addition, Isaac’s report stated that she found no physical evidence of a sexual assault, which also could have been advantageous to the defense. The record contains no evidence that counsel’s failure to object was for anything other than strategic reasons.
Smith’s second contention is that his counsel rendered ineffective assistance because he failed to object each time testimony about the existence of the videotaped interview was raised, and thus failed to preserve error. Because we conclude that the trial court did not abuse its discretion in allowing the jury to hear testimony about the existence of a videotape, we hold that counsel was not ineffective for his failure to object at times where the same or similar testimony was presented to the jury without objection. See Gosch v. State, 829 S.W.2d 775, 784 (Tex. Crim. App. 1991).
Smith’s final two contentions are that his counsel should have requested a competency hearing and a taint hearing. Smith asserts that because S.H.’s mother had manic depressive disorder and was allegedly raising her daughter in a dysfunctional home, and because S.H. was of a very young age, S.H. was incompetent to testify. He points to S.H.’s testimony in which S.H. confused time and dates. Smith also contends that counsel should have requested a hearing to determine if S.H.’s testimony was tainted because she testified that her mother had told her what to say in court, and she had recounted the incident to numerous investigators before testifying at trial. We must presume, however, that counsel had tactical reasons for deciding not to request a competency hearing. S.H. demonstrated that she understood the difference between the truth and a lie by her answers to the State’s questions. For example, when the State asked S.H. if the prosecutor said that S.H. was a little boy, would that be the truth or a lie, S.H. answered that it would be a lie because she is not a boy. When the State asked S.H. if told she was six feet tall, would that be the truth or a lie, S.H. stated that it would be a lie. The State also asked if it said she were a six-year-old girl, would that be the truth or a lie, and S.H. responded that it would be the truth. S.H. further testified both that she was saying what her mother told her to say and that her mother had not told her what to say and she had not lied at trial. “Inconsistencies and conflicts in the child’s testimony do not automatically rule [the child] incompetent; rather, they are simply factors affecting the weight of the child’s credibility.” Woods v. State, 14 S.W.3d 445, 451 (Tex. App.—Fort Worth 2000, no pet.) (citing Upton v. State, 894 S.W.2d 426, 429 (Tex. App.—Amarillo 1995, pet. ref’d)). Moreover, the jury was fully aware that numerous people discussed the incident before trial, and was in a position to evaluate whether these discussions affected S.H.’s story and undermined her credibility. Smith therefore failed to establish that the result of the proceeding would have been different if counsel had requested a competency or taint hearing. For these reasons, we overrule this issue as well.
Conclusion
We conclude that legally and factually sufficient evidence supports the verdict; the trial court did not err in allowing Odhiambo’s testimony; and the record does not reveal that Smith received ineffective assistance of counsel. Accordingly, we affirm the trial court’s judgment.
Jane Bland
Justice
Panel consists of Chief Justice Radack and Justices Jennings and Bland.
Do not publish. Tex. R. App. P. 47.4.