Affirmed and Memorandum Opinion filed May 13, 2004.
In The
Fourteenth Court of Appeals
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NO. 14-02-01300-CR
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GOREE HAWKINS, JR., Appellant
V.
THE STATE OF TEXAS, Appellee
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On Appeal from the 272nd District Court
Brazos County, Texas
Trial Court Cause No. 29519F-272
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M E M O R A N D U M O P I N I O N
In two issues, appellant Goree Hawkins, Jr. contends he received ineffective assistance of counsel and challenges the sufficiency of the evidence to support his conviction. We affirm.[1]
I. Factual and Procedural Background
On the morning of November 27, 2001, T.W. and her mother were sleeping when T.W. awoke to find a man standing over her mother and stating, AI=ve got a gun.@ T.W. testified that the man then stated he only wanted money and would not use the gun unless he had to. Once the man noticed T.W. was awake, he requested both women get out of their beds and look for a wallet. After no success in the search for the wallet, T.W.=s mother became hysterical. When this happened, the man tied up T.W.=s mother on her bed and eventually gagged her. The assailant again demanded T.W. search for the wallet, which she did to no avail. The assailant then requested T.W. join him in the hallway. Once there, he grabbed T.W. by the arm and told her to undress and lay on the floor with her legs spread. T.W. complied. According to T.W.=s testimony, the assailant then attempted sexual intercourse but was unsuccessful. He then told T.W. to get dressed, which she did. The assailant requested T.W. search again for the wallet. While she was searching in the kitchen and living room, he directed her to return to the hallway. The assailant told T.W. to disrobe again and get on her hands and knees. He got behind T.W. and again attempted sexual intercourse without success. After T.W. got dressed, the assailant pushed her into the living room and told her to lay face down while he tied her wrists and ankles. T.W.=s mother freed herself in time to see the assailant running from their duplex. T.W. and her mother later identified appellant as the assailant.
Appellant was charged by indictment with the offenses of sexual assault and burglary of a habitation with intent to commit sexual assault. See Tex. Pen. Code Ann. '' 22.011, 30.02 (Vernon 2003). The State proceeded on the sexual assault charge only. A jury found appellant guilty and, after finding the two enhancement paragraphs[2] true, assessed punishment at life imprisonment in the Texas Department of Criminal Justice, Institutional Division.
II. Issues Presented
Appellant presents the following issues for appellate review:
(1) Was appellant denied effective assistance of counsel during the guilt/innocence and punishment phases of trial?
(2) Is the evidence sufficient to support appellant=s conviction for sexual assault?
III. Analysis
A. Ineffective Assistance of Counsel Claim
In his first issue, appellant argues trial counsel provided him ineffective assistance during the guilt/innocence and punishment phases of trial.[3] Specifically, appellant contends counsel was ineffective because (1) defense counsel permitted Beverly Allen to testify as an expert witness without challenging her qualifications or the facts upon which she based her opinion; and (2) defense counsel opened the door to and did not object when the State discussed the application of parole law to appellant=s case during the punishment phase. Although appellant filed a motion for new trial, his only complaint was that Athe verdict is contrary to the law and evidence.@ He did not raise the issue of ineffective assistance of counsel in the motion. The record does not indicate a hearing was held on the motion, and in due course, it was overruled by operation of law.
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. art. 1.051 (Vernon Supp. 2004). This right necessarily includes the right to reasonably effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2063, 80 L. Ed. 2d 674 (1984); Ex parte Gonzales, 945 S.W.2d 830, 835 (Tex. Crim. App. 1997). To prove ineffective assistance of counsel, appellant must show that (1) trial counsel=s representation fell below an objective standard of reasonableness, based on prevailing professional norms; and (2) there is a reasonable probability that the result of the proceeding would have been different but for trial counsel=s deficient performance. See Strickland, 466 U.S. at 688B92. Moreover, appellant bears the burden of proving his claims by a preponderance of the evidence. Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998).
In assessing appellant=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). Appellant has the burden to rebut this presumption by presenting evidence illustrating why trial counsel did what he did. See id. An appellant cannot meet this burden when counsel=s actions may have been based on tactical decisions and the record does not specifically focus on the reasons for trial counsel=s conduct. See Bone v. State, 77 S.W.3d 828, 830 (Tex. Crim. App. 2002). When there is no proper 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 id. at 833. If there is no hearing or if counsel does not appear at the hearing, an affidavit from trial counsel becomes almost vital to the success of an ineffective-assistance claim. Stults v. State, 23 S.W.3d 198, 208B09 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d).
In this case, appellant first complains of ineffective assistance during the guilt/innocence phase of trial because trial counsel did not challenge Beverly Allen=s qualifications as a sexual assault nurse=s aide or the facts to support her opinion that T.W.=s female sexual organ was penetrated. Appellant asserts there is no evidence Allen was qualified to express an opinion on an ultimate issue in the case, namely penetration. Allen stated she was the manager of the emergency room at St. Joseph Regional Health Center. She is a registered nurse and worked as an emergency room nurse for thirteen years. She completed an eight-week training course and clinical work to become a sexual assault nurse=s aide; however, Allen was not certified by the Attorney General=s office. Appellant=s trial counsel elicited from Allen that she was the main sexual assault nurse at St. Joseph, that she trained other nurses, and that she had been administering these exams since 1991. Allen testified to the examination she performed on T.W. and stated that, based on the information she was given about the case,[4] T.W. had been penetrated.
In the face of a silent record, this court will not speculate about why trial counsel did not challenge Allen=s qualifications outside the presence of the jury or question the basis for her opinion on the issue of penetration. See Jackson, 877 S.W.2d at 771. Because the record is silent regarding any explanation for counsel=s actions, we cannot conclude appellant has met his burden to overcome the strong presumption of reasonable assistance. See Freeman v. State, 125 S.W.3d 505, 506B07 (Tex. Crim. App. 2003).
Appellant also asserts trial counsel was ineffective during the punishment phase because counsel opened the door to and did not object when the prosecutor explained how the parole law would apply to appellant. In particular, appellant cites the following argument made by trial counsel:
I think if you will look at that amount of time, serving 25 years in prison, [sic] is quite a bit. Granted, there=s a possibility of Mr. Hawkins making parole, but in most cases you=re probably going to serve that full 25 years. Mr. Hawkins is 33 years old right now. If he serves the full 25 years, he=ll be 58 years old when he gets out. That=s almost a quarter of a century behind bars C a quarter of a century in prison and that=s a long time and that=s a large chunk of Mr. Hawkins= life, and that=s a pretty severe punishment. By the time C If [sic] you assess a punishment of 25 or even 30 years for Mr. Hawkins, he=s going to be in his late fifties or early sixties when he gets out. He=s going to serve a large part of his life in prison.
Appellant claims that, had trial counsel not opened the door, the prosecution would not have been allowed to discuss parole law as it applied to appellant. See Tex. Code Crim. Proc. Ann. art. 37.07, ' 4(a) (Vernon Supp. 2004) (stating that jury may not consider parole law as it applies to a particular defendant). After trial counsel=s statement, the prosecutor provided the following explanation of the parole law, without objection:
Mr. Reed tells you that if you give him the minimum sentence, he=s going to serve all 25 years. Well, that=s not true. It could be if he acts up like he did before, but the parole charge in this case tells you he gets out after twelve-and-a-half. If he behaves, he=s eligible. And I don=t want you to go back in the jury room and consider parole. The jury charge tells you not to. I=m only responding to his argument. But a minimum sentence in this case would be a travesty. Anything close to the minimum sentence in this case would be a travesty.
Appellant contends that, had the prosecution not explained how appellant could be released for good behavior after serving half of his sentence, the jury might not have sentenced him to life imprisonment.
As with appellant=s first complaint of ineffective assistance of counsel, the record contains no evidence of the reasoning or strategy underlying trial counsel=s actions. In the face of a silent record, this court will not speculate why trial counsel discussed parole law as it applied to appellant or why trial counsel did not object when the prosecutor continued that discussion in closing argument. See Jackson, 877 S.W.2d at 771. In the absence of any evidence to the contrary, we cannot conclude the performance of appellant=s trial counsel during the punishment phase was deficient. See Freeman, 125 S.W.3d at 506B07.
Having found both alleged deficiencies forming appellant=s ineffective assistance claim to be without support in the record, we have no basis to grant relief. Accordingly, we overrule appellant=s first issue.
B. Legal Insufficiency Claim
In his second issue, appellant contends the evidence is legally insufficient to support his conviction for sexual assault. Specifically, appellant argues the prosecution did not prove the element of penetration.
In evaluating a legal-sufficiency challenge, we view the evidence in the light most favorable to the verdict. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). The issue on appeal is not whether we, as a court, believe the State=s evidence or believe that appellant=s evidence outweighs the State=s evidence. Wicker v. State, 667 S.W.2d 137, 143 (Tex. Crim. App. 1984). The verdict may not be overturned unless it is irrational or unsupported by proof beyond a reasonable doubt. Matson v. State, 819 S.W.2d 839, 846 (Tex. Crim. App. 1991). The jury, as the trier of fact, Ais the sole judge of the credibility of the witnesses and of the strength of the evidence.@ Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Crim. App. 1999). The jury may choose to believe or disbelieve any portion of the witnesses= testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). When faced with conflicting evidence, we presume the trier of fact resolved conflicts in favor of the prevailing party. Turro v. State, 867 S.W.2d 43, 47 (Tex. Crim. App. 1993). Therefore, if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, we must affirm. McDuff v. State, 939 S.W.2d 607, 614 (Tex. Crim. App. 1997).
To convict a defendant of sexual assault, the State must prove the defendant intentionally or knowingly caused the penetration of the sexual organ of another person by any means, without that person=s consent. See Tex. Pen. Code Ann. ' 22.011(a)(1)(A) (Vernon 2003). The indictment in this case alleged appellant intentionally and knowingly, by the use of physical force and violence and by threatening to use force and violence which T.W. believed he had the present ability to execute, caused the penetration of the female sexual organ of T.W. by inserting his penis without her consent. The Texas Penal Code does not define the terms Afemale sexual organ@ or Apenetration.@ Words not specifically defined by the legislature are to be understood as ordinary usage allows, and jurors may thus freely read statutory language to have any meaning which is acceptable in common parlance. See Vernon v. State, 841 S.W.2d 407, 409 (Tex. Crim. App. 1992). When used in the context of the sexual assault provisions of the Penal Code, Apenetrate@ may mean Ato enter into@ or Ato pass through.@ See id. Therefore, mere contact with the outside of an object does not amount to a penetration of it. Id. On the other hand, penetration of the female sexual organ does not necessarily require proof of entry into the vaginal canal. See id. Penetration occurs so long as contact with the female sexual organ could reasonably be regarded by ordinary English speakers as more intrusive than contact with outer vaginal lips. See id. Proof of the slightest penetration is sufficient. See Nilsson v. State, 477 S.W.2d 592, 595 (Tex. Crim. App. 1972).
Appellant argues the evidence is legally insufficient because T.W. did not testify that she was penetrated by her assailant, but rather stated that he attempted penetration and was unsuccessful. Although T.W. did testify that appellant was unable to fully penetrate her despite several attempts, she also stated that Ahe really didn=t get very far, but he did definitely penetrate.@ Her testimony, standing alone, is sufficient evidence of penetration. See Garcia v. State, 563 S.W.2d 925, 928 (Tex. Crim. App. 1978) (panel op.).
Appellant also contends Beverly Allen testified she observed no internal injuries to the vaginal mucosa. However, when asked whether she thought the facts of this case could be described as penetration, Allen responded that penetration had occurred here even though appellant was not successful in penetrating Aall the way into the cervical os.@[5] In addition, Allen identified State=s Exhibit 8A as the swab taken from T.W.=s cervical os, which Allen stated is inside the female sexual organ. Brady Mills, a criminalist with the Texas Department of Public Safety, testified that the DNA profile from the sperm cell fraction on the vaginal swab was consistent with both the DNA of T.W.=s boyfriend and of appellant. While more of the semen sample was characteristic of T.W.=s boyfriend, appellant could not be ruled out as a secondary contributor to the sample.
Based on this evidence, we conclude that a rational trier of fact could have found beyond a reasonable doubt that appellant penetrated T.W.
C. Factual Insufficiency Claim
Under his second issue, appellant also briefly mentions the term factual sufficiency and states that Athe jury=s verdict of guilty for sexual assault was so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.@ However, appellant does not cite facts from the record or any legal authority pertinent to a factual-sufficiency challenge. Nevertheless, in the interest of justice, we will review the factual sufficiency of the evidence.
When reviewing a factual-sufficiency challenge, we must discuss the evidence appellant claims is most important in allegedly undermining the jury=s verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003). Assuming appellant is raising the same argument regarding the element of penetration under a factual-sufficiency analysis as under his legal-sufficiency challenge, we cannot say, after viewing all the evidence without the prism of Ain the light most favorable to the prosecution,@ that the verdict should be set aside because it is Aso contrary to the overwhelming weight of the evidence to be clearly wrong and unjust.@ Johnson v. State, 23 S.W.3d 1, 6B7 (Tex. Crim. App. 2000).
Having found the evidence legally and factually sufficient to support appellant=s conviction, we find no merit in appellant=s second issue.
We affirm the trial court=s judgment.
/s/ Kem Thompson Frost
Justice
Judgment rendered and Memorandum Opinion filed May 13, 2004.
Panel consists of Chief Justice Hedges and Justices Frost and Guzman.
Do Not Publish C Tex. R. App. P. 47.2(b).
[1] Effective September 1, 2003, Brazos County is no longer a part of the district over which the First and Fourteenth Courts of Appeals have jurisdiction. See Act of May 1, 2003, 78th Leg., R.S., ch. 44, '' 1B2, 2003 Tex. Gen. Laws 81. The Act applies to cases in which the transcripts were not filed before the effective date of the Act, September 1, 2003. See id. Because the record in this case was filed before the effective date of the Act, we have jurisdiction over this case.
[2] The indictment contained enhancement paragraphs for appellant=s 1990 conviction for aggravated assault on a peace officer and a 1989 conviction for burglary of a habitation.
[3] Appellant requests this court reverse and remand for a new trial if it finds ineffective assistance. When the error occurs during the punishment phase, however, the conviction is retained, but the judgment is reversed and the case remanded for a new punishment hearing. See Hagens v. State, 979 S.W.2d 788, 792 (Tex. App.CHouston [14th Dist.] 1998, pet. ref=d).
[4] It is unclear from the record whether Allen=s opinion included information T.W. gave Allen at the time of the examination, information Allen heard when T.W. testified, or information the prosecutor asked Allen to assume about what T.W. described.
[5] Allen testified:
Q: Given the information that you were given about this particular case C and let me ask you to assume that the victim in this case described repeated attempts of penetration that were not ultimately successful C
A: Yes, sir.
Q: C where the defendant was simply too big C was trying to push himself inside and got to a point where he could not get any further, can you describe to the jury what that sounds like to you?
A: It=s usually where the penis is too large or the vaginal mucosa is too dry for penetration to go all the way into the cervical os. So what you have is an actual continued jamming against the pubic symphysis, which is this area right in here where the bones actually come together. And if it=s real dry, it=s difficult for penetration to go all the way through.
Q: Is what I have described and what you heard from the victim in this case, does that describe penetration to you?
A: Yes, it already went past C it goes past the majora and minora and into the vaginal opening and that=s penetration. Penetration occurs anytime it goes into the female organs, which majoras are.