NUMBER 13-03-215-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
___________________________________________________________________
PEDRO GARCIA, Appellant,
v.
THE STATE OF TEXAS, Appellee.
___________________________________________________________________
On appeal from the 319th District Court
of Nueces County, Texas.
__________________________________________________________________
MEMORANDUM OPINION
Before Justices Yañez, Rodriguez, and Garza
Memorandum Opinion by Justice Rodriguez
Appellant, Pedro Garcia, was convicted after a bench trial on one count of sexual assault of a child and three counts of indecency with a child. See TEX. PEN. CODE ANN. §§ 22.011; 21.11 (Vernon 2003). The trial court assessed a sentence of life imprisonment for the sexual assault offense and three concurrent twenty-year sentences for indecency with a child. The trial court has certified that this case “is not a plea-bargain case, and the defendant has the right of appeal.” See TEX. R. APP. P. 25.2(a)(2). By three points of error, appellant contends: (1) the trial court erred in failing to grant appellant’s motion for directed verdict; (2) the trial court erred by failing to grant a hearing on appellant’s motion for new trial; and (3) appellant was denied effective assistance of counsel. We affirm.
I. FACTS
As this is a memorandum opinion and the parties are familiar with the facts, we will not recite them here except as necessary to advise the parties of the Court’s decision and the basic reasons for it. See TEX. R. APP. P. 47.4.
II. MOTION FOR A DIRECTED VERDICT
By his first point of error, appellant contends the trial court erred in failing to grant appellant’s motion for directed verdict because the evidence is legally insufficient to sustain his convictions for sexual assault and indecency with a child.
A. Standard of Review
A point of error regarding a trial court’s failure to grant a directed verdict is treated as a challenge to the legal sufficiency of the evidence. Williams v. State, 937 S.W.2d 479, 482 (Tex. Crim. App. 1996); Nam Hoai Le v. State, 963 S.W.2d 838, 841 (Tex. App.–Corpus Christi 1998, pet. ref’d). To determine legal sufficiency, this Court must examine the evidence presented 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 present beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Young v. State, 14 S.W.3d 748, 753 (Tex. Crim. App. 2000). In making this determination, the reviewing court considers all the evidence admitted that will sustain the conviction, including improperly admitted evidence. Conner v. State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001). Questions concerning the credibility of witnesses and the weight to be given their testimony are to be resolved by the trier of fact. Mosley v. State, 983 S.W.2d 249, 254 (Tex. Crim. App. 1998). Evidence is not rendered insufficient when conflicting evidence is introduced. Matchett v. State, 941 S.W.2d 922, 936 (Tex. Crim. App. 1996). The reviewing court must assume that the fact finder resolved conflicts, including conflicting inferences, in favor of the verdict, and must defer to that resolution. Id.
On appeal, we measure the legal sufficiency of the evidence by the elements of the offense as defined by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). Such a charge accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s theories of liability, and adequately describes the particular offense for which the defendant is being tried. Id.
B. Analysis
Appellant specifically challenges the evidence related to the date the offenses occurred and the sexual contact element of the sexual assault conviction.
First, appellant contends the evidence did not substantiate that the offenses occurred “on or about May 15, 2001.” However, the State is not required to allege a specific date in an indictment. Sledge v. State, 953 S.W.2d 253, 256 (Tex. Crim. App. 1997). “It is well settled that the ‘on or about’ language of an indictment allows the State to prove a date other than the one alleged in the indictment as long as the date is anterior to the presentment of the indictment and within the statutory limitation period.” Id. In this case, the victim’s testimony, her mother’s testimony, and medical records show the offenses occurred anterior to the presentment of the indictment. Reviewing this evidence in the light most favorable to the verdict, we conclude any rational trier of fact could have found beyond a reasonable doubt that the offenses occurred “on or about May 15, 2001.” See Jackson, 443 U.S. at 319.
Appellant next argues that the victim never testified that appellant’s sexual organ contacted her sexual organ, which is an element of the sexual assault offense. See TEX. PEN. CODE ANN. § 22.011 (Vernon 2003). At trial, the victim testified that appellant touched her “cookie” with his penis both on the inside and on the outside. Furthermore, the victim told Nurse Sonja Eddleman that appellant put his “private” in her and pointed toward her female sexual organ.
Reviewing this evidence in the light most favorable to the verdict, we conclude any rational trier of fact could have found the sexual contact element of the offense beyond a reasonable doubt. See Jackson, 443 U.S. at 319. Therefore, the evidence is legally sufficient, and the trial court did not err in denying appellant’s motion for directed verdict. Accordingly, we overrule appellant’s first point of error.
III. FAILURE TO GRANT HEARING FOR NEW TRIAL
By his second point of error, appellant contends the trial court erred by failing to hold a hearing on his motion for new trial. A trial court’s decision not to conduct a hearing for a new trial is reviewed for abuse of discretion. Salazar v. Staten, 38 S.W.3d 141, 148 (Tex. Crim. App. 2001); Hernandez v. State, 989 S.W.2d 796, 797 (Tex. App.–Corpus Christi 1999, no pet.). To be entitled to a hearing on a motion for new trial, the motion must be accompanied by one or more affidavits that: (1) raise matters that are not determinable from the record; and (2) show that reasonable grounds exist for granting a new trial. Jordan v. State, 883 S.W.2d 664, 665 (Tex. Crim. App. 1994); Hernandez, 989 S.W.2d at 797. Appellant’s original motion for new trial only provided a general challenge to the findings of the trial court. The affidavit made no claims raising matters that are not determinable from the record or showing reasonable grounds for granting a new trial. See Jordan, 883 S.W.2d at 665; Hernandez, 989 S.W.2d at 797.
Therefore, we conclude the trial court could did not abuse its discretion in denying a hearing on appellant’s motion for new trial. Appellant’s second point of error is overruled.
IV. INEFFECTIVE ASSISTANCE OF COUNSEL
In his third point of error, appellant contends he was denied effective assistance of counsel. Specifically, appellant argues that trial counsel was ineffective because he advised appellant to waive his right to a jury trial, and he failed to present alibi witnesses.A. Standard of Review
The United States Supreme Court and the Texas Court of Criminal Appeals have promulgated a two-prong test to determine whether representation was so inadequate that it violated a defendant’s sixth amendment right to counsel. See Strickland v. Washington, 466 U.S. 668, 687 (1984); Hernandez v. State, 726 S.W.2d 53, 54-55 (Tex. Crim. App. 1986); Munoz v. State, 24 S.W.3d 427, 433 (Tex. App.–Corpus Christi 2000, no pet.). To establish ineffective assistance of counsel, appellant must show: (1) his attorney’s representation fell below an objective standard of reasonableness; and (2) there is a reasonable probability that, but for his attorney’s errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 687; Stone v. State, 17 S.W.3d 348, 349-50 (Tex. App.–Corpus Christi 2000, pet. ref’d).
Appellant bears the burden of proving ineffective assistance of counsel by a preponderance of the evidence. See Munoz, 24 S.W.3d at 434; Stone, 17 S.W.3d at 350. An allegation of ineffective assistance of counsel will only be sustained if it is firmly founded, and the record affirmatively demonstrates counsel’s alleged ineffectiveness. Guzman v. State, 923 S.W.2d 792, 797 (Tex. App.–Corpus Christi 1996, no pet.). The defendant’s burden is even more difficult when the defendant did not file a motion for new trial asserting ineffective assistance of counsel. See Jackson v. State, 973 S.W.2d 954, 957 (Tex. Crim. App. 1998); Gibbs v. State, 7 S.W.3d 175, 179 (Tex. App.–Houston [1st Dist.] 1999, pet. ref’d).
There is a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). Trial counsel should ordinarily be afforded an opportunity to explain his actions before being denounced as ineffective and an appellate court will not find ineffectiveness based on speculation. Bone v. State, 77 S.W.3d 828, 835-36 (Tex. Crim. App. 2002); Henderson v. State, 29 S.W.3d 616, 624 (Tex. App.–Houston [1st Dist.] 2000, pet. ref’d). In the absence of evidence of counsel’s reasons for the challenged conduct, an appellate court will assume a strategic motivation and will not conclude that the conduct was deficient unless the conduct was so outrageous that no competent attorney would have engaged in it. Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001); Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999).B. Analysis
Appellant contends his trial counsel was ineffective because he advised appellant to waive his right to a jury trial, and because he failed to investigate and present an alibi defense.
The record reflects appellant made the decision to waive his right to a jury trial without pressure or coercion from his trial counsel. Appellant was informed of his rights and the consequences of his actions; nevertheless, he chose to waive his right to a jury trial. Furthermore, assuming his trial counsel advised him to waive his right to trial by jury, the record does not reflect his trial counsel’s reasoning regarding this decision. We must therefore assume a strategic motivation. See Garcia, 57 S.W.3d at 440.
Additionally, in order to prevail on a claim of ineffective assistance of counsel for failing to investigate alibi witnesses, appellant must present evidence to support his contention. Johnson v. State, 691 S.W.2d 619, 626-27 (Tex. Crim. App. 1984); Phetvongkham v. State, 841 S.W.2d 928, 932 (Tex. App.–Corpus Christi 1992, pet. ref’d). Without evidence to support his contention, appellant has not rebutted the presumption he was adequately represented. See Garcia, 57 S.W.3d at 440; Jackson, 877 S.W.2d at 771.
Furthermore, even assuming that trial counsel’s representation was unreasonable, appellant has not satisfied the second prong of Strickland. Considering all the evidence presented supporting his conviction, it is unlikely, in this case, that a trial by jury or presentation of alibi witnesses would have produced a different outcome. Thus, we conclude appellant has not shown his attorney’s actions fell below an objective standard of reasonableness. Strickland, 466 U.S. at 867. We also conclude that appellant has not shown there is a reasonable probability that, but for his attorney’s errors, the result of the proceeding would have been different. Id. Appellant’s third point of error is overruled.
We note that although appellant’s attempt at a direct appeal has been unsuccessful, he is not without a potential remedy. Challenges requiring development of a record to substantiate a claim such as ineffective assistance of counsel, may be raised in an application for writ of habeas corpus. See TEX. CODE CRIM. PROC. ANN. art. 11.07 (Vernon Supp. 2004); Cooper v. State, 45 S.W.3d 77, 82 (Tex. Crim. App. 2001); Ex parte Torres, 943 S.W.2d 469, 476 (Tex. Crim. App. 1997).
V. CONCLUSION
Accordingly, the judgment of the trial court is affirmed.
NELDA V. RODRIGUEZ
Justice
Do not publish.
Tex. R. App. P. 47.2(b).
Memorandum Opinion delivered and
filed the 5th day of August, 2004.