Affirmed and Memorandum Opinion filed October 12, 2006.
In The
Fourteenth Court of Appeals
_______________
NO. 14-05-00765-CR
NO. 14-05-00772-CR
JUAN LAZARO CASTILLO, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 183rd District Court
Harris County, Texas
Trial Court Cause No. 1029793
M E M O R A N D U M O P I N I O N
Appellant, Juan Castillo, appeals his convictions for aggravated sexual assault and indecency with a child. In five issues, appellant contends the evidence is legally and factually insufficient to support his convictions, and he received ineffective assistance of counsel. Because all dispositive issues are clearly settled in law, we issue this memorandum opinion and affirm. See Tex. R. App. P. 47.4.
I. Background
On or about August 28, 2004, the complainant, who is appellant=s sister in-law and an eleven-year-old fifth grader, was preparing for family breakfast in her home. After finishing her morning bath, the complainant left the bathroom wearing only her robe. While she was in the hallway, appellant grabbed her by the arm, covered her mouth, and brought her into her bedroom. Appellant leaned the complainant on the bed and proceeded to insert his finger into her vagina for approximately one minute. He then touched both of the complainant=s breasts. As appellant molested the complainant, he was laughing and smelled of beer. When appellant left the bedroom, he told the complainant that if she told anyone about what happened he would kill her sister and nephews.
Afraid that appellant would hurt or kill her sister and nephews, the complainant did not tell anyone for approximately two months. During that time, the complainant=s behavior began to change: her grades worsened at school, she began to Atalk back@ to her teachers and parents, and she fought with other girls at school and her younger sister at home. Some of these behaviors occurred before the incident with appellant. The complainant eventually made an outcry and told her mother that someone had touched her, but stated that she could only tell her sister Andrea who had touched her. The complainant=s mother brought her to her sister, and the complainant told her that appellant, Andrea=s husband, had touched her. The complainant and her family called the police the next day. The complainant spoke with Officer Amelia Valdez, a juvenile sex crimes investigator with the Houston Police Department.
II. Legal Sufficiency of the Evidence
In his first two issues, appellant contends the evidence is legally insufficient to support his convictions for aggravated sexual assault of a child and indecency with a child. In a legal sufficiency review, we examine all of the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found every element of the offense beyond a reasonable doubt. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). The jury, as trier of fact, has the exclusive province to weigh the evidence and reconcile conflicts. Id. The jury may also draw reasonable inferences from the evidence. Villani v. State, 116 S.W.3d 297, 303 (Tex. AppCHouston [14th Dist.] 2003, pet. ref=d).
A person commits aggravated sexual assault of a child if he intentionally or knowingly causes the penetration of the child=s sexual organ by any means, and the child is under fourteen years of age. See Tex. Pen. Code Ann. ' 22.021 (Vernon 2003). A person commits indecency with a child if he, with the intent to arouse and gratify his sexual desires, engages in sexual contact with the child, and the child is under seventeen years of age. See Tex. Pen. Code Ann. ' 21.11 (Vernon 2003). Sexual contact is defined as any touching by a person of the anus, breasts, or any part of the genitals of a child. See Tex. Pen. Code Ann. ' 21.11(c)(1).
Here, the complainant testified that appellant grabbed her arm as she left the bathroom, covered her mouth, and took her into her bedroom. While there, appellant penetrated her vagina with his finger and touched her breasts. She stated that while appellant was molesting her, he was laughing and smelled of beer. Appellant disputed this testimony stating he had not touched the complainant, he had not been drinking either that morning or the night before, and he did not know why he was accused of these crimes.
In reviewing all the evidence in the light most favorable to the verdict, a rational jury could have found every element of both offenses. Appellant penetrated the complainant=s vagina with his finger, was laughing during the incident, and the complainant was eleven years old at the time. Therefore, the evidence is legally sufficient to support both convictions. See Wesbrook, 29 S.W.3d at 111. Appellant=s first and second issues are overruled.
III. Factual Sufficiency of the Evidence
In a factual sufficiency review, we view the evidence in a neutral light with deference given to the jury verdict and the jury=s determinations on credibility and demeanor of witnesses. Zuniga v. State, 144 S.W.3d 477, 481 (Tex. Crim. App. 2004). Evidence is factually insufficient if it is too weak to support the finding of guilt beyond a reasonable doubt, or if the contrary evidence is so strong that a reasonable jury could not find guilt beyond a reasonable doubt. Id. at 484.
The complainant testified extensively about the events of August 28, 2004. Appellant disputed her version of events, stating he had never molested the complainant either that morning or at any other time. The complainant waited approximately two months before making her outcry to her mother and sister. In her outcry, the complainant told her mother that Asomebody had touched [her] but [she] couldn=t tell her who;@ she told her sister Andrea A[appellant] was touching her,@ but she did not say where. The complainant testified that the reason she did not come forward sooner was that she was afraid appellant would carry out his threat to kill her sister and her nephews.
The complainant and her mother testified that following the incident, the complainant=s behavior began to change. Her grades at school dropped, she began to Atalk back@ to her parents and teachers, and she began to fight with other girls and her younger sister. The complainant acknowledged that some of these behaviors had occurred before the incident. The State=s psychological expert testified that these behaviors were consistent with a child who had been sexually abused. The expert further testified that the root causes of these behaviors may be benign, having nothing to do with sexual assault.
Officer Valdez testified there was no medical evidence indicating a sexual assault occurred. Medical evidence, however, usually cannot be recovered more than seventy-two hours after a sexual assault. Because the complainant=s outcry occurred two months after the incident, there was no opportunity for medical evidence to be collected.
On cross-examination, the complainant testified about an incident where appellant grabbed her arm while she was at the top of the stairs in her home. Because appellant had threatened her, the complainant was frightened by him. The complainant testified that she screamed, and Andrea slapped appellant and told him not to touch her sister. Andrea testified that appellant, the complainant, and Andrea=s son were playing at the top of the stairs. She admitted the complainant was screaming, but said they were playing and that appellant was not threatening the complainant. Appellant testified that he did not touch the complainant inappropriately. He also denied being alone on the staircase with the complainant and grabbing her arm.
Viewing all the evidence in a neutral light, while there are some inconsistencies in the evidence, we conclude the jury was rationally justified in finding guilt beyond a reasonable doubt. The evidence in this case boils down to conflicting testimony from the complainant and appellant. Because it is the jury=s sole responsibility to judge the credibility of the witnesses, we may not substitute our own findings for those of the jury. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). The State=s evidence is not too weak to support a finding of guilt, nor is appellant=s contrary evidence so strong as to prevent a rational jury from finding guilt beyond a reasonable doubt. See Zuniga, 144 S.W.3d at 484. The evidence is factually sufficient to support the verdict. See id. Appellant=s third and fourth issues are overruled.
IV. Ineffective Assistance of Counsel
In his fifth issue, appellant claims he received ineffective assistance of counsel at trial because trial counsel failed to object to various hearsay statements between complainant and her mother and sister, the two outcry witnesses, and trial counsel failed to object to Officer Valdez=s testimony regarding the absence of physical evidence. Appellant contends that because there was no objection at trial, the complainant=s testimony was impermissibly bolstered by inadmissible evidence, effectively denying appellant a fair trial.
Ineffectiveness claims are governed by the standard set forth in Strickland v. Washington. 466 U.S. 668 (1984). Under the Strickland standard, to prove ineffectiveness, appellant must show by a preponderance of the evidence (1) that counsel=s representation was deficient, falling below an objective standard of reasonableness, and (2) there is a reasonable probability the result of the proceeding would have been different but for trial counsel=s deficient performance. Id. at 687B96; Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005). There is a strong presumption that counsel=s performance fell within the wide range of reasonable professional assistance. Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999). To overcome this presumption Aany allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness.@ Id. In the absence of evidence regarding counsel=s reasons for the challenged conduct, the record on direct appeal is simply undeveloped and cannot adequately reflect the alleged failings of trial counsel. Freeman v. State, 125 S.W.3d 505, 506 (Tex. Crim. App. 2003).
Here, appellant did not allege ineffective assistance in a motion for new trial, and the record contains no explanation for counsel=s conduct. We may therefore reverse only if Athe 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).
A. Outcry Statements
Appellant=s first contends that the complainant=s testimony was impermissibly bolstered by inadmissible hearsay statements, not objected to at trial, offered through the complainant=s mother and sister.
Article 38.072 of the Texas Code of Criminal Procedure creates an Aoutcry exception@ to the hearsay rule in sexual assault cases involving a child victim, twelve years of age or younger, and applies to statements that describe the alleged offense made by the child to the first person, eighteen years of age or older, to whom the child made a statement about the offense. Tex. Code Crim. Proc. Ann. 38.072 (Vernon 2005). To fit into the exception, article 38.072 requires,
(1) on or before the 14th day before the date the proceeding begins, the party intending to offer the statement:
(A) notifies the adverse party of its intention to do so;
(B) provides the adverse party with the name of the witness through whom it intends to offer the statement; and
(C) provides the adverse party with a written summary of the statement;
(2) the trial court finds, in a hearing conducted outside the presence of the jury, that the statement is reliable based on the time, content, and circumstances of the statement; and
(3) the child testifies or is available to testify at the proceeding in court or in any other manner provided by law.
Id.
At trial, the complainant=s mother testified that the complainant told her, Asomebody had touched [her], but [she] couldn=t say who.@ The complainant=s sister testified that the complainant told her A[appellant] was touching her,@ but she did not say where. The record reflects that more than fourteen days before trial, the State provided notice of its intent to use the statements as well as the names of the witness through which it intended to offer the statements, and that the child testified at trial. However, the record is silent as to whether the trial court held a hearing to rule on the reliability of the statements as required by article 38.072. Therefore, the complainant=s hearsay statements to her mother and sister do not satisfy the article 38.072 hearsay exception.
Appellant=s counsel may have had strategic reasons for not objecting to the admission of the mother=s and sister=s testimony, including the admission of conflicting statements from the two witnesses. However, we may not speculate on counsel=s motives in the face of a silent record. See Thompson, 9 S.W.3d at 814. Additionally, the same testimony had been previously admitted without objection. Thus, any harmful testimony was merely cumulative. See Mayes v. State, 816 S.W.2d 79, 88 (Tex. Crim. App. 1991). Accordingly, we cannot say that defense counsel=s conduct was Aso outrageous that no competent attorney would have engaged in it.@ See Garcia, 57 S.W.3d at 440.
B. Officer Valdez=s Testimony
Appellant further argues that trial counsel=s failure to object to Officer Valdez=s testimony concerning the reasons for the lack of medical evidence constituted ineffective assistance. Appellant contends his trial counsel should have objected to Officer Valdez=s speculation. The record reflects Officer Valdez is a police officer with five and a half years experience in the Houston Police Department. At the time of trial, Officer Valdez had worked as a juvenile sex crimes investigator for a year and a half. She received training for three months and participated in approximately 100 hours of classes in child abuse investigation, sexual abuse investigation, suspect interrogation, and interviewing. Therefore, her testimony as to the reasons for the absence of medical evidence was the opinion of an expert. Tex. R. Evid. 702. Under Rule 702, expert testimony is admissible when scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue. Because Officer Valdez=s testimony was admissible, trial counsel did not render ineffective assistance by failing to object to it. See Wood v. State, 4 S.W.3d 85, 91 (Tex. App.CFort Worth 1996, pet. ref=d) (stating that it is not ineffective assistance for an attorney to forego making futile objections). Appellant=s fifth issue is overruled.
Accordingly, the judgment of the trial court is affirmed.
/s/ Charles W. Seymore
Justice
Judgment rendered and Memorandum Opinion filed October 12, 2006.
Panel consists of Justices Fowler, Frost and Seymore.
Do Not Publish C Tex. R. App. P. 47.2(b).