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NUMBER 13-04-00040-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI B EDINBURG
DAVID ALVAREZ, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 370th District Court of Hidalgo County, Texas.
MEMORANDUM OPINION[1]
Before Chief Justice Valdez and Justices Hinojosa and Rodriguez
Memorandum Opinion by Justice Hinojosa
A jury found appellant, David Alvarez, guilty of two counts of the offense of indecency with a child.[2] The trial court assessed appellant=s punishment at (1) two years= imprisonment and a $10,000 fine for Count Two and (2) ten years= imprisonment and a $10,000 fine for Count Three.[3] The trial court suspended appellant=s Count Three prison sentence and placed him on community supervision for a term of ten years. In eight issues, appellant contends (1) the trial court erred in allowing outcry testimony; (2) the trial court erred by admitting hearsay evidence; (3) both jury charges contained egregious error; (4) the evidence is factually insufficient to support the convictions; and (5) he received ineffective assistance of counsel. We affirm.
A. Outcry Testimony
In his first issue, appellant complains the trial court erred by admitting the victim=s statements to Leonila Guerrero as outcry statements.
At the hearing on the outcry statement, appellant argued that the statement was inadmissible because the State did not provide sufficient notice of its use, and the statement was not reliable based upon time, content, and circumstances. The trial court overruled appellant=s objection to the statement. At trial, during the State=s direct examination of Guerrero, counsel for appellant stated, AWe=d renew all our previous objections made in this matter.@ Once again, the trial court overruled his objection.
A party=s objection is waived if his argument on appeal does not comport with his objection at trial. Jones v. State, 111 S.W.3d 600, 604 (Tex. App.BDallas 2003, pet. ref=d). Appellant now contends the statements were merely general allegations of abuse, and not a clear description of the offense as required by article 38.072 of the code of criminal procedure and, therefore, inadmissible. See Tex. Code Crim. Proc. Ann. art. 38.072 (Vernon 2005). However, because appellant did not make that objection at trial, we conclude he waived this complaint. Appellant=s first issue is overruled.
B. Hearsay
In his second issue, appellant contends the trial court erred by allowing hearsay testimony. This issue, however, is inadequately briefed. Appellant has failed to present us with a clear or concise argument in support of this contention and has failed to present appropriate references to authorities. See Tex. R. App. P. 38.1(h). Appellant=s second issue is overruled.
C. Jury Charge
In his third issue, appellant contends that both jury charges contained egregious error because they allowed for a non-unanimous jury verdict on the contact allegation (Count Two) and the exposure allegation (Count Three).
The Texas Constitution requires a unanimous verdict in felony criminal cases. Tex. Const. art. V., ' 13; Tex. Code Crim. Proc. Ann. art. 36.29(a) (Vernon Supp. 2005). Allowing a jury to choose from several separate acts, each of which is a violation of a specific statute, without requiring the jury to agree on which act was committed violates the unanimity requirement. Ngo v. State, 175 S.W.3d 738, 745-48 (Tex. Crim. App. 2005); Francis v. State, 36 S.W.3d 121, 124-25 (Tex. Crim. App. 2000). The general rule is that where an indictment alleges one instance of sexual assault and the trial evidence shows more than one instance, the State must elect the offense upon which it relies for conviction. O=Neal v. State, 746 S.W.2d 769, 771 (Tex. Crim. App. 1988). An exception to the rule is where several acts of sexual assault were committed by one continuous act of force and threats, and are part of the same criminal transaction. Id. (citing Steele v. State, 523 S.W.2d 685, 687 (Tex. Crim. App. 1975)). Furthermore, allowing a jury to choose between alternative theories of how an offense was committed does not run afoul of the unanimous-verdict requirement. Martinez v. State, 129. S.W.3d 101, 103 (Tex. Crim. App. 2004).
In the instant case, appellant was charged with one count of the offense of indecency with a child by sexual contact and one count of indecency with a child by exposure. See Tex. Pen. Code Ann. ' 21.11(a)(1), (a)(2)(A) (Vernon 2003). Appellant argues that because evidence of several instances of each offense was presented to the jury, the jury was allowed to convict him not because one or more crimes were proven beyond a reasonable doubt, but because all of them together convinced the jury that he was guilty. See Phillips v. State, 130 S.W.3d 343, 349 (Tex. App.BHouston [14th Dist.] 2004, State=s pet. granted, appellant=s pet. ref=d) (identifying one of four reasons for election rule is to minimize risk of jury choosing to convict based on all allegations together).
1. Contact
Appellant contends the jury was presented with evidence of four instances of sexual contact. He claims that the victim=s testimony that appellant called her into his bedroom and body-slammed her on the bed constitutes three separate instances of sexual contact: (1) when appellant=s penis rubbed against the victim=s leg; (2) when appellant placed the victim on top of him with her vagina on top of his penis and told her to move around; and (3) when the victim rolled off of appellant and his penis touched her vagina again. However, this is one instance involving several acts of sexual contact which were committed in one continuous act of force and threats, and part of the same criminal transaction; thus, election is not required. See O=Neal, 746 S.W.2d at 771.
Appellant asserts that the victim=s testimony that appellant grabbed her from behind while she was washing dishes and touched her buttocks with his erect penis is the fourth instance of sexual contact. However, as evidenced by trial counsel=s objection to this testimony under Texas Rule of Evidence 404(b), this instance was not a violation of the indicted offense, but rather an extraneous offense. Appellant=s objection was overruled by the trial court, and he failed to request an extraneous offense instruction in the jury charge. Failure to request a limiting instruction in the jury charge on an extraneous offense, or to object to its omission from the jury charge waives the error on appeal. Williams v. State, 508 S.W.2d 83, 84 (Tex. Crim. App. 1974). Further, failure to include a limiting instruction on an extraneous offense is not fundamental error. Id.
2. Exposure
Appellant also contends the jury was presented with evidence of three instances of exposure. AExposure has been defined as: >To deprive of concealment; to disclose or unmask something criminal, shameful, or the like.=@ Breckenridge v. State, 40 S.W.3d 118, 128 (Tex. App.BSan Antonio 2000, pet. ref=d) (quoting Balfour v. State, 993 S.W.2d 765, 769 (Tex. App.BAustin 1999, no pet.)).
Appellant asserts that the victim=s testimony that when she entered appellant=s bedroom she could see the outline of his penis through his bikini underwear is the first incident of exposure. However, this incident does not fall under the definition of exposure. Therefore, it is not an offense set out in the indictment.
Appellant contends the second incident of exposure is found in a prior statement by the victim. However, evidence of this incident was not presented by the State in support of its case. Appellant used the statement to impeach the victim after she testified at trial that no part of appellant=s body was exposed when she entered the bedroom. According to the victim=s statement, appellant opened his robe and exposed himself to her when she entered the bedroom. This was not evidence of an incident presented to the jury to support a violation of the indicted offense.
Appellant contends the third incident of exposure is the victim=s testimony that while she sat on the floor playing with the baby, appellant called her name as he sat on the couch, and when she turned, she could see his penis and scrotum. Appellant was indicted for this incident. This evidence was presented to the jury in support of the allegations made in the indictment.
We conclude there was no error in the jury charge, and the charge did not allow for a non-unanimous jury verdict as to what offenses appellant committed. Appellant=s third issue is overruled.
D. Factual Sufficiency
In his sixth issue, appellant contends the evidence is factually insufficient to support the elements of sexual contact and exposure.
In a factual sufficiency review, we review all the evidence in a neutral light and determine whether evidence supporting the verdict is too weak to support the finding of guilt beyond a reasonable doubt or if evidence contrary to the verdict is strong enough that the beyond‑a‑reasonable‑doubt standard could not have been met. Threadgill v. State, 146 S.W.3d 654, 664 (Tex. Crim. App. 2004). Our neutral review of all the evidence, both for and against the challenged elements, looks to determine whether proof of guilt is so obviously weak as to undermine confidence in the jury=s determination, or whether proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. See Zuniga v. State, 144 S.W.3d 477, 484‑85 (Tex. Crim. App. 2004). A proper factual sufficiency review must consider the most important evidence that the appellant claims undermines the jury=s verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003). However, we approach a factual sufficiency review with appropriate deference to avoid substituting our judgment for that of the fact finder. Johnson v. State, 23 S.W.3d 1, 6‑7 (Tex. Crim. App. 2000).
We measure the factual sufficiency of the evidence against the elements of the offense as defined by a hypothetically correct jury charge for the case. See Adi v. State, 94 S.W.3d 124, 131 (Tex. App.BCorpus Christi 2002, pet. ref=d). ASuch a charge would be one that 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 was tried.@ See Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997).
The victim testified that appellant is married to her aunt. She further testified that during the summer of 1996, when she was eleven years old and her aunt was in the hospital, she went to her aunt=s and appellant=s home to help care for appellant=s son. She testified that on one particular afternoon appellant called her into his bedroom, and that appellant was wearing a towel-like white robe because he had just gotten out of the shower. The baby began to cry so she went to check on the baby, and appellant called for her again. The victim testified that when she entered the bedroom, appellant was wearing bikini-type underwear, and he asked her if she wanted to play. The victim said appellant then Abody-slammed@ her onto the bed, acted like he had fallen on top of her, and that his penis was rubbing against her leg. She said that appellant then rolled over on the bed with his back on the bed, rolled her over on top of him, and sat her on top of his penis. She testified that her vagina was on top of his erect penis, and he asked her to play and move around a little bit. She told him Ano,@ that she was sleepy. She attempted to get off of appellant, but he kept her pinned down. She said she eventually threw herself off of appellant and onto the floor. She then went to the door and found it was locked. She unlocked the door, went to the baby=s room, and locked the door. Appellant knocked on the door to the baby=s room and told her to open the door. The victim testified appellant told her that he was going to call her grandmother and tell her that she would not listen to him and that he did not want her in his house anymore, but she refused to open the door.
The victim also testified that earlier the same day, while she was sitting on the floor playing with the baby, appellant was on the couch wearing only his robe. She said that appellant called her name, and when she turned around, he had his legs open and was looking right at her. The victim said she could see appellant=s penis and scrotum, and that appellant never tried to close his legs Aor anything.@
Appellant claims the evidence is factually insufficient. However, he merely points to inconsistencies in the victim=s testimony. He asserts (1) that on cross-examination, the victim admitted that in a prior statement to the police she had said appellant was wearing a white robe when he body-slammed her onto the bed; (2) that she alleged that appellant had exposed himself to her while sitting on the bed and wearing a white robe; and (3) her statements differed regarding when appellant=s penis was erect.
Appellant then points to the testimony of appellant=s wife (and the victim=s aunt) as contrary proof that greatly outweighs proof of guilt. Appellant=s wife testified that she was very upset with appellant because she had discovered that he was having an affair. She testified that she wanted to get him fired, so she asked her niece, the victim, to make up a statement accusing appellant of Atrying something@ on her. She said she obtained the statement the victim prepared at home and took it to the Edinburg Police Department, and later took the victim to the police department to give a statement in person.
The testimony of a child victim alone is sufficient to support a conviction for indecency with a child. See Tex. Code Crim. Proc. Ann. art. 38.07 (Vernon 2005); Tex. Pen. Code Ann. ' 21.11 (Vernon 2003); Perez v. State, 113 S.W.3d 819, 838 (Tex. App.BAustin 2003, pet. ref=d); Villanueva v. State, 703 S.W.2d 244, 245 (Tex. App.BCorpus Christi 1985, no writ). Moreover, the jury is the sole judge of the credibility of the witnesses and the weight to be given the evidence, and may choose to believe all, some, or none of it. Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim. App. 2000); Rachal v. State, 917 S.W.2d 799, 805 (Tex. Crim. App. 1996); Perez, 113 S.W.3d at 838. Thus, the jury is permitted to believe or disbelieve any part of the testimony of any witness. Jones v. State, 984 S.W.2d 254, 258 (Tex. Crim. App. 1998). Reconciliation of evidentiary conflicts is solely a function of the trier of fact. Losada v. State, 721 S.W.2d 305, 309 (Tex. Crim. App. 1986); Bowden v. State, 628 S.W.2d 782, 784 (Tex. Crim. App. 1982); Perez, 113 S.W.3d at 838. The jury could have accepted that portion of the victim=s testimony sufficient to support the convictions and disregarded the inconsistencies. AA decision is not manifestly unjust because the jury resolved the manifestly conflicting views of the evidence in favor of the State.@ Cain v. State, 958 S.W.2d 404, 409 (Tex. Crim. App. 1997).
We have reviewed all the evidence in a neutral light. With due deference to the jury verdicts, we conclude that the evidence is factually sufficient to support both convictions. Appellant=s sixth issue is overruled.
E. Ineffective Assistance
In his fourth, fifth, seventh, and eighth issues, appellant contends he received ineffective assistance of counsel during trial. Specifically, appellant contends trial counsel was ineffective (1) by failing to ensure that an extraneous offense instruction was included in the jury charges; (2) by failing to request that the State elect which alleged incident it was relying upon for a unanimous conviction; (3) by failing to object to, and request a mistrial for, improper closing arguments by the State; and (4) by failing to instruct a witness to not refer to a previous trial.
The standard of review for a claim of ineffective assistance of counsel is well established. See Strickland v. Washington, 466 U.S. 668, 687 (1984); Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999); Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994).
In the absence of affirmative evidence contained in the record, we presume that trial counsel=s actions were strategically motivated and that counsel=s conduct fell within the wide range of reasonable professional assistance. Strickland, 466 U.S. at 689; Thompson, 9 S.W.3d at 814; Jackson, 877 S.W.2d at 771. We 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).
The record in this case does not show trial counsel=s reasoning behind the challenged conduct. Because appellant=s complaint that he received ineffective assistance of trial counsel is not firmly founded in the record, and the record does not affirmatively demonstrate the alleged ineffectiveness, we cannot say that trial counsel=s performance failed to constitute reasonably effective assistance by falling below an objective standard of reasonableness.[4] Appellant=s fourth, fifth, seventh, and eighth issues are overruled.
The judgment of the trial court is affirmed.
FEDERICO G. HINOJOSA
Justice
Do not publish. See Tex. R. App. P. 47.2(b).
Memorandum Opinion delivered and filed this
the 8th day of June, 2006.
[1] As this is a memorandum opinion not designated for publication and the parties are familiar with the facts, we will not recite them here except as necessary to advise the parties of our decision and the basic reasons for it. See Tex. R. App. P. 47.4.
[2] See Tex. Pen. Code Ann. ' 21.11(a) (Vernon 2003).
[3] Appellant was originally charged by indictment for aggravated sexual assault in Count One; indecency with a child by sexual contact in Count Two; indecency with a child by exposure in Count Three; and indecency with a child by sexual contact of a second victim in Count Four. Count Four was severed, and appellant was tried on Counts One, Two, and Three, which resulted in a hung jury. A second trial was held on Counts Two and Three. It is from the second trial that this appeal ensued.
[4] Appellant is not foreclosed from presenting his claim via collateral attack by virtue of an application for post‑conviction writ of habeas corpus. Ex parte Nailor, 149 S.W.3d 125, 130‑31 (Tex. Crim. App. 2004).