|
|
NUMBER 13-01-635-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
JEROME LOPEZ, Appellant,
v.
STATE OF TEXAS, Appellee.
On appeal from the 24th District Court
of DeWitt County, Texas.
CONCURRING MEMORANDUM OPINION[1]
Before Chief Justice Valdez and Justices Castillo and Garza
Concurring Memorandum Opinion by Justice Castillo
I join the majority with the granting of counsel's motion to withdraw.
I write separately on the issue of whether Lopez's appeal is frivolous and without merit because the majority summarily states that this Court independently reviewed the record for error without explaining what that review entailed. I do not believe Penson permits us to be conclusory in reciting our compliance with our independent duty under Anders, any more than it permits Anders counsel to summarily conclude that an appeal is without merit. See Penson v. Ohio, 488 U.S. 75, 80 (1988); see also Anders v. California, 386 U.S. 738, 744‑45 (1967); High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel Op.] 1978). Our duty is to determine whether there are any arguable grounds for appeal, and to "hand down a written opinion that is as brief as practicable but that addresses every issue raised and necessary to final disposition of the appeal." Bledsoe v. State, No. PD-300-04, 2005 Tex. Crim. App. LEXIS 1969, at *6, *10-*11 (Nov. 16, 2005) ; see Tex. R. App. P. 47.1.
Just as an Anders brief must provide references to both legal precedent and pages in the record to demonstrate why there are no arguable grounds to be advanced, High, 573 S.W.2d at 812, similarly, we should inform the parties what we have done, not just assure them we have done it, and indicate in the opinion that we considered the issues raised in the briefs and reviewed the record. Bledsoe, 2005 Tex. Crim App. LEXIS 1969, at *11.
INDEPENDENT REVIEW
This is an appeal following a jury trial in a aggravated sexual assault of a child case. The trial court has certified that Lopez has the right of appeal. See Tex. R. App. P. 25.2(a)(2). Accordingly, just as we required of Anders counsel in this case, I would detail our independent review of the case, including the indictment, pre-trial motions, voir dire, opening statements, legal and factual sufficiency of the evidence, the jury charge, closing argument, and the punishment phase. See Gearhart v. State, 122 S.W.3d 459, 465-69 (Tex. App.BCorpus Christi 2003, pet. ref'd) (detailing independent review undertaken in appeal following jury trial). As part of our review under Anders, we consider the entire record. Id. at 464-65. Moreover, I address the matters counsel has raised in the appellate brief.
1. Indictment
The indictment properly alleges the offense of aggravated sexual assault of a child. See Tex. Pen. Code Ann. ' 22.021 (a)(1)(B)(i) (Vernon Supp. 2005). Even if error did exist in the indictment, the error could not be raised on appeal because Lopez did not file a pre-trial motion alleging any error in the indictment. See Tex. Code Crim. Proc. Ann. art. 1.14(b) (Vernon 2005); see Ex parte Smith, No. PD-0616-04, 2005 Tex. Crim. App. LEXIS 1773, at *12 (Oct. 19, 2005)(en banc). I find no arguable error in the indictment.
2. Pre-trial Motions
The record reflects that Lopez's defense counsel filed numerous pretrial motions and motions in limine. In advance of trial, Lopez filed two motions to have his counsel removed, those were not ruled upon prior to the date of trial. However, after jury selection but outside the hearing of the jury, and prior to commencement of the trial, the trial court heard testimony from Lopez that he had been and continued to be represented by counsel, that plea offers had been made by the prosecution, that Lopez discussed them at great length with his attorney, and that Lopez decided to reject the offers and move forward with the trial. Other motions favorable to Lopez present nothing for review. See Tex. R. App. P. 33.1. I find no arguable error in the trial court's pretrial rulings.
3. Voir Dire
A review of the voir dire examination shows that venire members responded to questioning by the prosecutor and defense counsel. The prosecutor and defense counsel were able to strike veniremen and did strike where appropriate. The record reflects extensive questioning and the intelligent exercising of peremptory challenges by counsel regarding jury selection. See Barajas v. State, 93 S.W.3d 36, 39 (Tex. Crim. App. 2002). I find no arguable error in the voir dire.
4. Opening Statements
A prosecutor's opening statement is authorized by article 36.01(a)(3) of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 36.01(a)(3) (Vernon Supp. 2005). The opening statement should inform the jury of the nature of the accusation and the facts that the State expects to prove. See Taylor v. State, 947 S.W.2d 698, 706 (Tex. App.BFort Worth 1997, pet. ref'd) (per curiam). If improper statements were made, an appellate court must determine whether, when viewed in conjunction with the record as a whole, a statement was so prejudicial as to deny appellant a fair trial. Herrera v. State, 915 S.W.2d 94, 97 (Tex. App.BSan Antonio 1996, no writ). We view the improper statements in conjunction with the record as a whole, and ascertain whether the statement was so prejudicial as to deny an appellant a fair trial. Id. Similarly, the defendant has the right to make an opening statement. See Tex. Code Crim. Proc. Ann. art. 36.01(b) (Vernon Supp. 2005).
The State presented its opening statement. Lopez, by choice, did not. There were no objections made during prosecution's opening statement, nor were there any improprieties that would have required objection. I find no arguable error in the prosecution's opening statement.
5. Sufficiency of the Evidence
a. Standards of Review
(1). Legal Sufficiency
A legal-sufficiency challenge calls for appellate review of the relevant evidence in the light most favorable to the verdict. Escamilla v. State, 143 S.W.3d 814, 817 (Tex. Crim. App. 2004); Swearingen v. State, 101 S.W.3d 89, 95 (Tex. Crim. App. 2003) (en banc). We consider all the evidence that sustains the conviction, whether properly or improperly admitted or whether introduced by the prosecution or the defense, in determining the legal sufficiency of the evidence. Conner v. State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001).
In a jury trial, legal sufficiency is measured against the elements of the offense as defined by a hypothetically correct jury charge for the case. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). A hypothetically correct jury charge is 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." Id. A hypothetically correct jury charge would not simply quote from the controlling statute. Gollihar v. State, 46 S.W.3d 243, 254 (Tex. Crim. App. 2001). Its scope is limited by "the statutory elements of the offense . . . as modified by the charging instrument." Fuller v. State, 73 S.W.3d 250, 254 (Tex. Crim. App. 2002) (en banc) (Keller, J., concurring); Curry v. State, 30 S.W.3d 394, 404 (Tex. Crim. App. 2000). When a statute lists more than one method of committing an offense, and the indictment alleges some, but not all, of the statutorily listed methods, the State is limited to the methods alleged. Fuller, 73 S.W.3d at 255; Curry, 30 S.W.3d at 404. This standard of legal sufficiency ensures that a judgment of acquittal is reserved for those situations in which there is an actual failure in the State's proof of the crime. Malik, 953 S.W.2d at 240. We then determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Johnson, 23 S.W.3d at 7.
(2). Factual Sufficiency
We also measure the factual sufficiency of the evidence against a hypothetically correct jury charge. Adi v. State, 94 S.W.3d 124, 131 (Tex. App.CCorpus Christi 2002, pet. ref'd). The Texas Court of Criminal Appeals has restated the factual sufficiency standard of review:
There is only one question to be answered in a factual sufficiency review: Considering all of the evidence in a neutral light, was a jury rationally justified in finding guilt beyond a reasonable doubt? However, there are two ways in which the evidence may be insufficient. First, when considered by itself, evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt. Second, there may be both evidence supporting the verdict and evidence contrary to the verdict. Weighing all the evidence under this balancing scale, the contrary evidence may be strong enough that the beyond ‑a‑reasonable‑doubt standard could not have been met, so the guilty verdict should not stand. This standard acknowledges that evidence of guilt can "preponderate" in favor of conviction but still be insufficient to prove the elements of the crime beyond a reasonable doubt. Stated another way, evidence supporting guilt can "outweigh" the contrary proof and still be factually insufficient under a beyond‑a‑reasonable‑doubt standard.
Zuniga v. State, 144 S.W.3d 477, 484‑85 (Tex. Crim. App. 2004). A clearly wrong and unjust verdict occurs where the jury's finding is "manifestly unjust," "shocks the conscience," or "clearly demonstrates bias". Prible v. State, No. AP-74,487, 2005 Tex. Crim. App. LEXIS 110, at *16-*17 (Jan. 26, 2005).
When the State bears the burden of proof, the proof of guilt is factually insufficient if it is so obviously weak as to indicate that a manifest injustice has occurred or if it is greatly outweighed by contrary proof. Zuliani v. State, 97 S.W.3d 589, 593‑94 (Tex. Crim. App. 2003). In determining the factual sufficiency of the elements of the offense, we view all the evidence neutrally, not through the prism of "the light most favorable to the prosecution." Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996)(en banc). We must consider the most important evidence that supports appellant's claims on appeal. Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003). We reverse a judgment of conviction only if proof of guilt is so obviously weak and manifestly unjust or the contrary evidence is so strong that the
standard of proof beyond a reasonable doubt could not have been met. Prible, 2005 Tex. Crim. App. LEXIS 110, at*16-*17.
In conducting a factual sufficiency review, we review all the evidence. Cain v. State, 958 S.W.2d 404, 408 (Tex. Crim. App. 1997). In the opinion, we "show our work" when we consider and address the appellant's main argument for urging insufficiency of the evidence. Tex. R. App. P. 47.1; Sims, 99 S.W.3d at 603 ("a proper factual sufficiency review must include a discussion of the most important and relevant evidence that supports the appellant's complaint on appeal."). This practice benefits the parties, maintains the integrity of the justice system, and improves appellate practice. Id.
b. Elements of the offenseBaggravated sexual assault
In an aggravated sexual assault case involving a child as the victim, the following evidentiary requirements must be met: (1) the State must prove the defendant intentionally or knowingly caused the penetration of the anus or sexual organ of a child by any means, and (2) the child is under the age of 14.[2] Defendant's knowledge of the age of the child is not required. United States v. Ransom, 942 F.2d 775, 777 (10th Cir. 1991); Scott v. State, 36 S.W.3d 240, 241 (Tex. App.BHouston [1st Dist.] 2001 pet ref'd)).
c. Sufficiency Analysis
(1). Legal Sufficiency
Viewed in the light most favorable to the verdict, the testimony of the victim and her mother, as to the acts of the defendant, established the elements of the offense of aggravated sexual assault. I concur with the majority that the trial court did not abuse its discretion in finding C.M. competent to testify. Even without the testimony of the victim, there was sufficient other evidence, including the letters of admission written by the defendant from prison to the mother of the victim that, viewed favorably to the verdict, was sufficient such that any rational trier of fact could have found beyond a reasonable doubt the essential elements of the offense. See Malik, 953 S.W.2d at 240.
(2). Factual Sufficiency
Additional evidence, viewed in a neutral light, showed that Lopez testified and denied that he sexually assaulted the victim. He stated that he believed the victim was lying and the victim's mother was afraid to admit that she lied to the grand jury because she feared a perjury charge. Viewing the relevant evidence in a neutral light, favoring neither the prosecution nor Lopez, and with appropriate deference to the jury's credibility determinations, I would conclude: (1) the evidence supporting the verdict is not too weak to support the jury's finding of guilt beyond a reasonable doubt; and (2) the weight of the evidence contrary to the verdict is not so strong that the State could not have met its burden of proof. Zuniga, 144 S.W.3d at 484-85.
The evidence is legally and factually sufficient to sustain the conviction. Accordingly, I find no arguable error in the sufficiency of the evidence.
6. The Charge
The record does not show that Lopez objected to the charge. Thus, to be reversible, any error would have to constitute egregious harm. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (en banc) (op. on reh'g). I find no arguable egregious error in the charge.
7. Closing Argument
Lopez did not object to the State's closing argument during either phase of the trial. Thus, Lopez did not preserve error. See Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996) (en banc).
8. Punishment Phase
The record shows that, during the punishment phase of the trial, Lopez objected to the introduction of prior offenses but those objections were overruled. The standard of review for a trial court's ruling under the rules of evidence is abuse of discretion. Sauceda v. State ,129 S.W.3d 116, 120 (Tex. Crim. App. 2004). If the ruling was correct on any theory of law applicable to the case, in light of what was before the trial court at the time the ruling was made, then we must uphold the judgment. Id. Because prior convictions are admissible for impeachment and to establish a defendant as a repeat offender during the punishment phase, I cannot conclude that the trial court abused its discretion in allowing the evidence of prior convictions.
The record does not establish that Lopez objected to the imposition of punishment. We conclude that he did not preserve any error as to the sentence imposed by the jury. See Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996) (en banc). Moreover, the sentence assessed was within the statutorily permissible range and was based on admissible evidence introduced during the trial. See Hawkins v. State, 112 S.W.3d 340 , 345 (Tex. App.BCorpus Christi 2003, no pet.)(citing Jordan v. State, 495 S.W.2d 949, 952 (Tex. Crim. App. 1973)). I find no arguable error in the sentencing proceedings.
9. Ineffective Assistance of Counsel
Lopez asserts that counsel was ineffective because she did not object to the introduction of testimony of the minor victim.
A claim of ineffective assistance of counsel must be firmly supported in the record. Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005) An appellant must show: (1) his counsel's performance fell below an objective standard of reasonableness, based on prevailing professional norms; and (2) there is a reasonable probability that, but for the counsel's unprofessional errors, the result of the proceeding would be different. Id. We presume counsel's performance was the result of sound or reasonable trial strategy. Id., see Stafford v. State, 813 S.W.2d 503, 506 (Tex. Crim. App. 1991) (en banc).
When the record is silent regarding the motivation of counsel's tactical decisions, the defendant cannot overcome the strong presumption that counsel acted reasonably. Mallett v. State, 65 S.W.3d 59, 62-63 (Tex. Crim. App. 2001). In most cases, the record on direct appeal is insufficient to review claims of ineffective assistance of counsel. See Ortiz v. State, 93 S.W.3d 79, 88-89 (Tex. Crim. App. 2002) (en banc) ("If counsel's reasons for his conduct do not appear in the record and there is at least the possibility that the conduct could have been legitimate trial strategy, we will defer to counsel's decisions and deny relief on an ineffective assistance claim on direct appeal.")
Lopez asserts that the trial court erred in declaring the victim competent to testify and his counsel did not object. A review of the record reveals that counsel for Lopez did object and questioned the victim, outside the jury's presence, to determine the competency of the victim to testify. Defense counsel questioned the child extensively to determine if the victim knew the difference between (1) right and wrong, (2) left and right, (3) truth and lie, as well as (4) whether the victim understood what taking an oath meant. The trial court found that, although the victim might not understand what taking an oath meant, she was able to tell the truth and was competent to testify. I agree with the majority that the trial court did not abuse its discretion in finding C.M. competent to testify.
The record contains no evidentiary support for Lopez's claims of ineffective assistance of counsel. See Salinas, 163 S.W.3d at 740. Similarly, in the pro se brief submitted by Lopez, he fails to cite to any evidence to rebut the presumption he was adequately represented. Id. Thus, on this record, I conclude that Lopez has failed to establish that his trial counsel was ineffective.
CONCLUSION
An independent review of the record concludes that Lopez's appeal is frivolous and that this appeal is without merit. Accordingly, I concur with the majority's decision to affirm the judgment.
ERRLINDA CASTILLO
Justice
Do Not Publish.
Tex. R. App. P. 47.2(b).
Concurring Memorandum Opinion delivered and filed
this 12th day of January, 2006.
[1] See Tex. R. App. P. 47.2, 47.4
[2] Act of May 28, 1999, 76th Leg., R.S., ch. 417, _ 1, 1999 Tex. Gen. Laws 2752 (current version at Tex. Pen. Code Ann. ' 22.021 (Vernon Supp. 2005)).