IN THE
TENTH COURT OF APPEALS
No. 10-07-00097-CR
UVALDO GONZALES GUZMAN,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 272nd District Court
Brazos County, Texas
Trial Court No. 06-03339-CRF-272
MEMORANDUM OPINION
A jury convicted Uvaldo Gonzales Guzman of indecency with a child. He pled
true to two enhancement paragraphs and the jury assessed his punishment at sixty
years’ imprisonment. In his first two issues, Guzman contends that the evidence is
legally and factually insufficient to support his conviction. In his remaining issues,
Guzman argues that the trial court erred in overruling his objections to the State’s
misrepresentations during closing arguments and that he was denied effective
assistance of counsel. We will affirm.
Background
Guzman and his wife lived adjacent to S.M. and her three children S.A.M. (age
5), M.M. (age 8), and B.M. (age 12). The evidence shows that on February 15, 2006, S.M.,
M.M., B.M., and several of the children’s friends were at home watching a movie. At
the end of the evening, S.M. went to her room to go to bed and left the children in the
living room to sleep. The State alleges that after M.M. had fallen asleep on the couch,
Guzman entered S.M.’s home using a key he had because of previous repair work he
had done in the home. Once inside, Guzman allegedly entered the living room, where
M.M. was asleep on the couch. M.M. testified that Guzman sat down on the couch,
removed her pants, and touched her vagina. She then woke up and went to her
mother’s room to sleep without telling her anything had happened. Several minutes
later, S.M. and M.M. saw Guzman standing in the doorway of S.M.’s bedroom. When
S.M. asked why he was there, he told her that he had come to check on them. Guzman
left and S.M. and M.M. went back to sleep.
Sometime later that night, a 911 dispatcher called in response to a hang-up call
received from S.M.’s telephone. M.M. told S.M. that she had called 911 because she was
“startled” that Guzman had earlier been in the house. An officer was dispatched to
check on the house and left shortly after checking the premises; M.M. did not tell the
officer that Guzman had touched her.
The following day, M.M. told her friend that Guzman had come in the night
before and touched her. M.M.’s friend then told M.M.’s older brother B.M. who then
told S.M. and other family members. S.M. asked M.M. what happened the night before,
Guzman v. State Page 2
M.M. began to cry, and told her that Guzman had come in and touched her while she
was sleeping on the couch. Officer Brian Ruebush came to take M.M.’s statement and
she repeated what happened.
Two weeks later, Nick Canto interviewed M.M. at Scotty’s House, a child
advocacy center. During the recorded interview, M.M. said that Guzman entered the
living room and touched her vagina while she was sleeping, but that she did not wake
up until after he left. At trial, several witnesses testified, including M.M., whose
testimony was largely consistent with her statements in the videotaped interview.
Guzman did not testify, and the jury found him guilty of the offense of indecency with
a child. This appeal followed.
Sufficiency of the Evidence
In his first two issues, Guzman contends that the evidence was both legally and
factually insufficient to prove that he was the individual who touched M.M.
When reviewing a challenge to the legal sufficiency of the evidence to establish
the elements of the penal offense that forms the basis of the finding of guilt, we must
determine whether, after viewing all the evidence in the light most favorable to the
verdict, any rational trier of fact could have found the essential elements of the offense
beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781,
2789, 61 L.Ed.2d 560 (1979).
We do not resolve any conflict of fact or assign credibility to the witnesses, as this
was the function of the trier of the 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
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v. State, 819 S. W.2d 839, 843 (Tex. Crim. App. 1991). Instead, our duty is to determine if
both the explicit and implicit findings of the trier of fact are rational by viewing all of
the evidence admitted at trial in a light most favorable to the verdict. Adelman, 828
S.W.2d at 422. In so doing, any inconsistencies in the evidence are resolved in favor of
the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000); Matson, 819
S.W.2d at 843.
In a factual sufficiency review, we ask whether a neutral review of all the
evidence, though legally sufficient, demonstrates either that the proof of guilt is so
weak or that conflicting evidence is so strong as to render the factfinder's verdict clearly
wrong and manifestly unjust. Watson v. State, 204 S.W.3d. 404, 414-15 (Tex. Crim. App.
2006); Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). “The court reviews the
evidence weighed by the jury that tends to prove the existence of the elemental fact in
dispute and compares it with the evidence that tends to disprove that fact.” Johnson, 23
S.W.3d at 7 (quoting Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996)). The
appellate court “does not indulge in inferences or confine its view to evidence favoring
one side of the case. Rather, it looks at all the evidence on both sides and then makes a
predominantly intuitive judgment. . . .” Id. (quoting William Powers and Jack Ratliff,
Another Look at “No Evidence” and “Insufficient Evidence,” 69 TEXAS L. REV. 515, 519
(1991)). The nature of a factual sufficiency review authorizes an appellate court,
although to a very limited degree, to act as the so-called “thirteenth juror” to review the
factfinder’s weighing of the evidence and disagree with the factfinder’s determination.
Watson, 204 S.W.3d at 416-17.
Guzman v. State Page 4
Identity may be proved by direct or circumstantial evidence. In fact, identity may
be proven by inferences. When there is no direct evidence of the perpetrator's identity
elicited from trial witnesses, no formalized procedure is required for the State to prove
the identity of the accused. Proof by circumstantial evidence is not subject to a more
rigorous standard than is proof by direct evidence. For the purposes of proving guilt
beyond a reasonable doubt, direct and circumstantial evidence are equally probative.
Clark v. State, 47 S.W.3d 211, 214 (Tex. App.—Beaumont 2001, no pet.) (quoting Roberson
v. State, 16 S.W.3d 156, 167 (Tex. App.—Austin 2000, pet. ref'd)).
The jury heard the following evidence identifying Guzman as the perpetrator:
On February 14, 2006, S.M.’s children and some of their friends were at
her apartment. After eating dinner, S.M. left the children in the living
room and went to sleep. Around 2:30 a.m., S.M. testified that M.M., who
was shaking, came into her bedroom and got in bed with her. A few
minutes later, M.M. nudged her and she looked up and saw Guzman
standing in her doorway with a beer bottle in his hand. When she asked
him what he was doing there, he said he had come to check on them.
Guzman then left.
According to S.M., because Guzman was a maintenance man in her
apartment complex, he had a key to her apartment but he was never given
permission to enter the apartment unannounced.
Later that night, a 911 dispatcher called S.M. because someone had called
and hung up from her phone. While on the phone with the dispatcher,
M.M. told her mother that she had called and hung up. S.M. explained to
the dispatcher that the neighbor who had come into their house startled
M.M. The dispatcher sent out a patrol officer, who searched the house
and assured S.M. and M.M. that Guzman was no longer in the house.
The next day, S.M. was with her mother and sister. B.M. came in and told
all of them that M.M. told her friend from school that Guzman touched
her. S.M. then asked M.M. what she had told her friend; M.M. began to
cry, and explained to her mother, grandmother, and aunt that when she
Guzman v. State Page 5
was sleeping on the couch the night before, Guzman came in, pulled her
pants down, and touched her vagina.
S.M. found the pants that M.M. slept in the night before and discovered
that the zipper was broken. S.M. reported the incident to police, and they
dispatched Officer Ruebush to investigate the incident.
Officer Ruebush testified that M.M. told him that she was sleeping on the
couch when she woke up to discover that her pants were off and Guzman
was touching her vagina. M.M then told him that she got up and ran into
her mother’s room to get in bed with her. After speaking with Officer
Ruebush, M.M. gave a videotaped interview at Scotty’s House.
At trial, the State introduced the videotape interview made at Scotty’s
House and played it for the jury. During the interview, M.M. said that she
was sleeping on the couch when her next-door neighbor came into the
living room. She explained that after her neighbor sat down, he pulled
down her pants and panties and then “touched her private spot.” M.M.
stated that when he touched her private spot his hand constantly moved.
M.M. then pulled her pants up, and her neighbor quickly removed his
hand. M.M. then went into her mother’s bedroom to sleep and a few
minutes later, the neighbor came into the bedroom and stated that he
wanted to check on them. After the neighbor left, M.M. called 911. M.M.
said that the next day she told her friend what happened, and her friend
told her brother, who told her mother.
M.M. testified at trial that on the night of the incident, she, her brother,
and their friends were sleeping in the living room. She was lying on the
couch when Guzman came in and sat down next to her, pulled her pants
down, and started touching her. She stated that she did not remember
seeing Guzman touch her, but knew that he had touched her because she
felt his hand. When Guzman touched her, his hand stayed still for a short
time. She also testified that she did not wake up until Guzman slammed
the back door as he was leaving.
Taken together, this provides sufficient direct and circumstantial evidence to
identify Guzman as the perpetrator. Guzman argues that the evidence of his identity is
insufficient for three reasons. First, he argues that because M.M. stated in her interview
at Scotty’s House that she was asleep when he allegedly sat down beside her and at trial
Guzman v. State Page 6
she testified that she did not wake up until she allegedly heard him slam the back door
as he left, this is insufficient evidence to prove he touched M.M. Although M.M.’s
testimony was somewhat ambiguous as to when she woke up after being touched, she
initially stated that when she awoke, her pants were off, and Guzman was touching her
vagina. She later testified that she did not wake up until she heard Guzman slam the
back door. Even so, at no point did she equivocate on the issue of who touched her.
Further, M.M.’s testimony is not legally insufficient simply because it is internally
inconsistent or conflicts with the testimony of others. Turner v. State, 4 S.W.3d 74, 82
(Tex. App.—Waco 1999, no pet.).
Second, Guzman argues that M.M.’s identification of him as the perpetrator was
the result of improper suggestions and a tendency for M.M. to agree on leading
questions. M.M. identified Guzman as the perpetrator on several occasions before trial
and several witnesses confirmed her testimony that she consistently identified Guzman
as the perpetrator. There is no evidence in the record to suggest that questions naming
Guzman as the perpetrator influenced M.M. Additionally, S.M. testified that M.M.’s
initial outcry to her friend named Guzman as the person who touched her.
Finally, Guzman argues that it is more likely that one of the other boys sleeping
over that night touched M.M. However, there is no evidence to support this alternative
argument. M.M. testified that during the attack all of the boys in the living room
remained sleeping. She also testified that the hand that touched her was very large.
Viewing all of the evidence in the light most favorable to the verdict, we
conclude that the evidence is legally sufficient such that a rational jury could have
Guzman v. State Page 7
found beyond a reasonable doubt that it was Guzman who committed the essential
elements of indecency with a child. Viewing the evidence in a neutral light, we also
conclude that the evidence was not so weak that a finding beyond a reasonable doubt
that Guzman was the perpetrator was clearly wrong and manifestly unjust. See Watson,
204 S.W.3d at 414-15. Because the evidence is both legally and factually sufficient to
support a finding that Guzman inappropriately touched M.M. on the night of the
incident, we overrule his first and second issues.
Jury Argument
In his third issue, Guzman argues that the trial court erred in overruling his
objection to the State’s misrepresentation of the evidence during closing arguments.
Specifically, Guzman asserts that a witness may not testify that another witness is
untruthful. Yount v. State, 872 S.W.2d 706, 711 (Tex. Crim. App. 1975). At trial, the
State’s closing argument was as follows:
[State]: This isn’t about law enforcement. This is about her. Your
daughter comes to you and tells you a consistent story, tells you what
happened, is bawling when she’s saying it, and she doesn’t talk—she
tells you, the police, the trained interviewer who sees cases like this
who says she’s not lying; and a year later comes up…
[Guzman]: Judge, I object to that. He never said that.
[State]: Judge, he said there was no indication of deception.
[Guzman]: That’s different. He did not say she’s not lying.
[The Court]: The objection is overruled but I want to remind the jury
that it is not the province of the Court to determine what the facts are.
That is the province of the jury. The objection is overruled.
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(Emphasis added)
Instead of objecting based on the “truthfulness” argument, trial counsel objected
on the grounds that the facts asserted were not in evidence. Consequently, Guzman
failed to preserve his complaint on appeal—that one witness cannot testify that another
witness is truthful—because this complaint does not comport with the objection made
by trial counsel during the closing argument. See Wilson v. State, 71 S.W.3d 346, 349
(Tex. Crim. App. 2002) (holding that if objection in trial court differs from complaint on
appeal, defendant has failed to preserve complaint for appellate review); Broxton v.
State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995) (complaint on appeal must comport
with objection at trial and objection stating one legal theory may not be used to support
a different legal theory on appeal). We overrule Guzman’s third issue.
Effective Assistance of Counsel
In his fourth issue, Guzman argues that trial counsel provided ineffective
assistance by failing to object to (1) the injection of allegedly improper evidence at voir
dire; (2) misstatements made by the prosecution during closing argument, and (3) the
prosecutor’s argument asking the jury to place themselves in the shoes of the victim and
her family.
The standard in Strickland v. Washington applies to a claim of ineffective
assistance of counsel. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d
674 (1984). To prevail, a defendant must first show that his counsel’s performance was
deficient. Id. at 687, 104 S.Ct. at 2064; see Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim.
Guzman v. State Page 9
App. 2002). Then it must be shown that this deficient performance prejudiced the
defense. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064.
Appellate review of defense counsel’s representation is highly deferential and
presumes that counsel’s actions fell within the wide range of reasonable and
professional assistance. Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001); Tong v.
State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000).
In assessing Guzman’s claims, we apply a strong presumption that trial counsel
was competent. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). We
presume counsel's actions and decisions were reasonably professional and were
motivated by sound trial strategy. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim.
App. 1994). When, as in this case, there is no evidentiary record developed at a hearing
on a motion for new trial, it is extremely difficult to show that trial counsel's
performance was deficient. See Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002).
Failure to object
Guzman argues that trial counsel rendered ineffective assistance by failing to
object to the following: First, during voir dire, the prosecutor asked the jury their
opinions on the “myths of sexual abuse.” Guzman argues that by labeling beliefs as
“myths” the prosecution sought to represent to panel members that the contrary
propositions, ones favoring the prosecution, were true. Second, Guzman argues that
trial counsel should have objected to the following exchange between a panel member
and the prosecution. The exchange was as follows:
Guzman v. State Page 10
[Panel Member]: … I got abused as a child; and I mean, to this date,
you know, it’s every time that word –
[Prosecutor]: I’m sorry.
[Panel Member]: I don’t think I would make a good—a good judgment
on things.
[Prosecutor]: Let me ask you a question: You don’t know the
defendant, right? And the defendant is not the person that did this to
you, correct?
[Panel Member]: Correct.
[Prosecutor]: As a person sitting on a jury, are you saying right now
that you would, because of your prior experience, take that out on
him?
Third, Guzman argues that the prosecution made several misstatements during
closing argument, including the prosecutor’s statement (1) that S.M. testified that M.M.
told her that she saw Guzman on the couch, (2) that “only a year later did M.M. deny
seeing Guzman on the couch,” and (3) that M.M. “blocks out” seeing Guzman on the
couch. Guzman argues that trial counsel should have objected to these statements
because they either are not supported by the record or reach unreasonable conclusions.
Rodriguez v. State, 520 S.W.2d 778, 780 (Tex. Crim. App. 1975). Finally, Guzman argues
that on two separate occasions, the prosecution asked the jury to place themselves in the
shoes of the victim and her family, which is an improper jury argument. Boyington v.
State, 738 S.W.2d 704, 709 (Tex. App.—Houston [1st Dist.] 1985, no pet.).
We examine Guzman’s ineffective assistance claims under the Strickland
framework. Guzman’s arguments demonstrate the "inadequacies inherent in
evaluating ineffective assistance claims on direct appeal." Patterson v. State, 46 S.W.3d
Guzman v. State Page 11
294, 306 (Tex. App.—Fort Worth 2001, no pet.). Although Guzman filed a motion for
new trial, he did not allege ineffective assistance of counsel. There is nothing in the
record to show that Guzman presented his claim to the trial court to afford the trial
court a chance to hold a hearing and inquire into the reasons for trial counsel's acts or
omissions.
Consequently, we cannot determine whether counsel's actions were grounded in
sound trial strategy because the record is silent as to possible trial strategies, and we
will not speculate on the reasons for those strategies. Walker v. State, 201 S.W.3d 841,
850 (Tex. App.—Waco 2006, pet. ref’d). Therefore, Guzman has failed to meet the first
prong of Strickland. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064; Walker, 201 S.W.3d at
850. Moreover, even if we could discern from the record that Guzman's trial counsel's
performance fell below the standard of reasonable professional representation, Guzman
has made no showing that but for his trial counsel's failures the outcome of the
proceeding would have been different. Consequently, Guzman has failed to meet the
second prong of Strickland. See Strickland, 466 U.S. at 697, 104 S. Ct. at 2069. We
overrule his final issue.
Conclusion
Having overruled all of Guzman's issues, we affirm the trial court's judgment.
BILL VANCE
Justice
Guzman v. State Page 12
Before Chief Justice Gray,
Justice Vance, and
Justice Reyna
Affirmed
Opinion delivered and filed November 26, 2008
Do not publish
[CRPM]
Guzman v. State Page 13