Affirmed and Opinion filed June 15, 2004.
In The
Fourteenth Court of Appeals
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NO. 14-03-00201-CR
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MIGUEL SOSA, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 262nd District Court
Harris County, Texas
Trial Court Cause No. 918,387
O P I N I O N
Appellant, Miguel Sosa, was charged by indictment with indecency with a child. See Tex. Pen. Code Ann. ' 21.11 (Vernon 2003). Appellant entered a Anot guilty@ plea, but after hearing the testimony of the witnesses, the jury convicted appellant and subsequently assessed his punishment at three years= confinement in the Institutional Division of the Texas Department of Criminal Justice. Appellant asserts three points of error on appeal: (1) the evidence was factually insufficient, (2) the prosecution engaged in improper jury argument during its closing statement, and (3) appellant did not receive adequate assistance of counsel under the United States and Texas Constitutions. We affirm.
The incident giving rise to the prosecution occurred very early on December 25, 1999. The complainant, who was eleven-years-old in December 1999, celebrated Christmas with her parents at her Aunt Ruth=s house. Also at Ruth=s house were appellant (the complainant=s uncle) and his wife. The entire family opened gifts at midnight. The complainant=s parents left Ruth=s house around 2:00 a.m. The complainant, however, stayed behind to spend the night with her cousins. Appellant, appellant=s wife, the complainant and other relatives slept in Ruth=s living room.
The complainant said she went to sleep next to her cousin. She woke up to find appellant lying next to her, with his hands inside her underwear, rubbing her vagina. Unsure as to what she should do, the complainant pushed appellant. Because the morning was dawning, the complainant could clearly see that it was appellant who had been touching her. She noticed appellant=s eyes were open, and he was looking at her. The complainant got up and retreated to the bathroom. The complainant did not return to the living room, but went to her cousin=s bedroom. The complainant did not tell anyone about the incident at that time.
A week later, appellant confronted the complainant after church and said he needed to talk to her. The complainant accompanied appellant to his car. Appellant=s wife followed, but appellant told her he needed to talk to the complainant alone.[1] Appellant apologized to the complainant for Awhat he did@ and asked her not to tell anyone. The complainant did not respond, but simply got out of the car.
In the summer of 2002, the complainant=s mother asked her daughters if they had ever been touched inappropriately. The complainant began crying and told her mother for the first time about the abuse she suffered at the hands of appellant. The complainant=s father called the police two days later, and law enforcement officers commenced an investigation of the incident.
Deputy Schaberg, a Harris County Constable, interviewed the complainant in her home where she identified appellant as her assailant. The complainant was subsequently transported to the Children=s Assessment Center where Detective Leslie McFarland of the Harris County Sheriff=s Department Child Abuse Division watched via closed-circuit television as the complainant discussed appellant=s actions with one of the Center=s staff. The complainant also underwent a physical examination while at the Children=s Assessment Center. In addition to submitting to a physical exam, the complainant explained to Colleen Taft, a pediatric nurse practitioner, that appellant had touched her Aprivate part.@ The physical exam was normal; however, Nurse Taft explained that this outcome was to be expected considering the type of contact.
In his first point of error, appellant contends the evidence is factually insufficient to support his conviction. When reviewing claims of factual insufficiency, it is our duty to examine the jury=s weighing of the evidence. Clewis v. State, 922 S.W.2d 126, 133, 134 (Tex. Crim. App. 1996). There are two ways in which evidence can be factually insufficient: (1) the evidence is so weak as to be clearly wrong or manifestly unjust, or (2) the finding of a vital fact is so contrary to the great weight and preponderance of the evidence as to be clearly wrong. Zuliani v. State, 97 S.W.3d 589, 593 (Tex. Crim. App. 2003). Determining which standard applies depends upon whether the complaining party had the burden of proof at trial. Id. If the complaining party did not have the burden of proof, then the Amanifestly unjust@ standard applies. Id. On the other hand, if the complaining party had the burden of proof, then the Aagainst the great weight and preponderance@ standard applies. Id. Under the Texas Court of Criminal Appeals= modified approach, if the defendant challenges the factual sufficiency of the elements of the offense, even though the State had the burden of proof, we must review the evidence using both standards. Id. Thus, when reviewing factual sufficiency challenges, we must determine Awhether a neutral review of all of the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury=s determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof.@ Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000).
A person commits indecency with a child by touching, including through clothing, the genitals of a child under the age of seventeen. Tex. Pen. Code Ann. ' 21.11 (Vernon 2003). Corroborating testimony is not required to support a conviction for indecency with child. See Tex. Code Crim. Proc. Ann. Art. 38.07 (Vernon Supp. 2004).
In making his factual insufficiency argument, appellant cites a small portion of complainant=s testimony at trial. Specifically, appellant points out that complainant Aalso testified that she didn=t think it really happened, that she did not want to believe it, and that she felt it was a dream.@ We note that appellant=s factual insufficiency argument rests solely upon a few isolated statements.[2] Notwithstanding any alleged weakness in complainant=s testimony, the jury is the sole judge of the facts, the credibility of the witnesses, and the weight to be given the evidence. Wyatt v. State, 23 S.W.3d 18, 30 (Tex. Crim. App. 2000); Beckham v. State, 29 S.W.3d 148, 152 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d). The jury may believe or disbelieve all or part of any witness=s testimony. Jones v. State, 984 S.W.2d 254, 258 (Tex. Crim. App. 1998). Reconciliation of any conflicts in the evidence falls within the exclusive province of the jury. Heiselbetz v. State, 906 S.W.2d 500, 504 (Tex. Crim. App. 1995).
We do not find the proof of guilt is so obviously weak as to undermine our confidence in the jury=s verdict or that the proof of guilt is greatly outweighed by contrary proof. Complainant testified that appellant rubbed her vagina with his hands. Apparently, the jury believed complainant=s testimony. Accordingly, the first point of error is overruled.
In his second point of error, appellant complains the State was permitted to engage in improper jury argument during its closing statement in the punishment phase of the trial. Because appellant did not testify at the punishment phase of the trial, appellant argues that the State improperly commented on his silence. Specifically, the prosecutor stated, A[D]o you want to send a message to this defendant and the citizens of Harris County, that it=s okay to touch your niece even though your family doesn=t really believe you did anything wrong, even though there=s been no sense of remorse during the guilt/innocence phase of this trial.@ However, appellant also concedes that no objection was made to this argument.
We find nothing was preserved for review. Before a defendant can complain on appeal about improper jury argument, he must show that he objected and pursued his objection to an adverse ruling. Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996). Without an objection, the right to complain on appeal is forfeited. Id. Therefore, appellant=s second point of error is overruled.
Appellant complains in his third point of error that he was not afforded effective assistance of counsel, as required by the Sixth Amendment to the United States Constitution or Article 1, Section 10 of the Texas Constitution. Appellant cites ten instances in setting up his point of error, namely, trial counsel failed to: (1) object to the State=s closing argument describing appellant=s lack of remorse; (2) object to statements made by the court during voir dire; (3) request additional peremptory challenges or object to jury members; (4) object to attempts by the prosecution to bolster complainant=s testimony; (6) object to evidence describing complainant as Anot promiscuous@; (7) object to hearsay testimony; (8) object to statements referencing appellant=s post-arrest silence; (9) preserve error through a bill of exception or offer proof as to a previous inconsistent statement in an affidavit filed by one of the witnesses; and (10) to present evidence during the punishment hearing as to the probation conditions for the punishment of sex offenders. Without individually addressing each of the preceding instances, we overrule appellant=s third point of error.
Both the United States and Texas Constitutions guarantee an accused the right to assistance of counsel. U.S. Const. amend. VI; Tex. Const. art. I, 10; Tex. Code Crim. Proc. Ann. art. 1.05 (Vernon 1977). The right to counsel necessarily includes the right to reasonably effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984). The United States Supreme Court has established a two‑prong test to determine whether counsel is ineffective. Id. First, appellant must demonstrate counsel=s performance was deficient and not reasonably effective. Id. at 688‑92. Second, appellant must demonstrate the deficient performance prejudiced the defense. Id. at 693. Essentially, appellant must show that his counsel=s representation fell below an objective standard of reasonableness, based on prevailing professional norms, and there is a reasonable probability that, but for his counsel=s unprofessional errors, the result of the proceeding would have been different. Id.; Valencia v. State, 946 S.W.2d 81, 83 (Tex. Crim. App. 1997).
Judicial scrutiny of counsel=s performance must be highly deferential and we are to indulge the strong presumption that counsel was effective. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). We assume counsel=s actions and decisions were reasonably professional and that they were motivated by sound trial strategy. Id. Moreover, it is the appellant=s burden to rebut this presumption, by a preponderance of the evidence, through evidence illustrating why trial counsel did what he did. Id. Any allegation of ineffectiveness must be firmly founded in the record and the record must affirmatively demonstrate the alleged ineffectiveness. McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996), overruled on other grounds by Mosley v. State, 983 S.W.2d 249, 263 (Tex. Crim. App. 1998). Where the record contains no evidence of the reasoning behind trial counsel=s actions, we cannot conclude counsel=s performance was deficient. Jackson, 877 S.W.2d at 771; Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). An appellate court is not required to speculate on the reasons behind trial counsel=s actions when confronted with a silent record. Jackson, 877 S.W.2d at 771.
If appellant proves his counsel=s representation fell below an objective standard of reasonableness, he must still affirmatively prove prejudice as a result of those acts or omissions. Strickland, 466 U.S. at 693; McFarland, 928 S.W.2d at 500. Counsel=s errors, even if professionally unreasonable, do not warrant setting the conviction aside if the errors had no effect on the judgment. Strickland, 466 U.S. at 691. Appellant must prove that counsel=s errors, judged by the totality of the representation, denied him a fair trial. McFarland, 928 S.W.2d at 500. If appellant fails to make the required showing of either deficient performance or prejudice, his claim fails. Id.
Appellant did not file a motion for new trial and the record contains no evidence of the reasoning behind his trial counsel=s actions (or lack thereof). An appellate court is not required to speculate on the reasons behind trial counsel=s actions when confronted with a silent record. Jackson, 877 S.W.2d at 771; see also Thompson, 9 S.W.3d at 814 (Tex. Crim. App. 1999) (holding that when the record provides no explanation as to the motivation behind trial counsel=s actions, an appellate court should be hesitant to declare ineffective assistance of counsel). Appellant fails to provide this Court with any evidence to affirmatively demonstrate the ineffectiveness of his trial counsel. Thus, appellant has not satisfied his burden on appeal to rebut the presumption that counsel=s actions were reasonably professional and motivated by sound trial strategy.
Moreover, even if the record rebutted the presumption of sound trial strategy, appellant has not demonstrated that trial counsel=s performance prejudiced his defense. He has not, therefore, met the second prong of the test. Because appellant produced no evidence concerning trial counsel=s reasons for choosing the course he did, nor did he demonstrate prejudice to his defense, his third point of error is overruled. McFarland, 928 S.W.2d at 500.
Accordingly, the judgment of the trial court is affirmed.
/s/ J. Harvey Hudson
Justice
Judgment rendered and Opinion filed June 15, 2004.
Panel consists of Justices Yates, Anderson, and Hudson.
Do Not Publish C Tex. R. App. P. 47.2(b).
[1] Appellant=s wife confirmed this encounter on cross-examination.
[2] The complainant testified as follows:
Q: Were you still in shock?
A: In a way.
Q: What do you mean by Ain a way.@
A: Because I didn=t want to believe it.
Q: And did that have to do with anything regarding your relationship with him?
A: Yes.
Q: And him being an uncle?
A: Yes, ma=am.
. . . .
Q: Let me ask you this: Why would you go over and spend the night at his house after what he had done to you?
A: For two reasons, one, because inside of me I still thought it was fake, it was a dream. And I felt, you know, I felt B I didn=t want to believe it.