Affirmed and Memorandum Opinion filed June 26, 2007.
In The
Fourteenth Court of Appeals
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NO. 14-06-00682-CR
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CRISTOBAL RIVERA, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 182nd District Court
Harris County, Texas
Trial Court Cause No. 1051365
M E M O R A N D U M O P I N I O N
Cristobal Rivera appeals a conviction for sexual assault of a child[1] on the grounds that: (1) he was denied effective assistance of counsel; and (2) the trial court erred by admitting the complainant=s medical records into evidence. We affirm.
Ineffective Assistance
Appellant=s first and second issues contend that his trial counsel=s failure to object to statements made by two venire members in front of the entire jury panel, regarding the lifelong disability of sexual assault victims and the counseling that the family of sexual assault victims has to undergo, denied appellant effective assistance of counsel.
To prevail on an ineffective assistance claim, appellant must show his defense attorney's performance fell below an objective standard of reasonableness and there is a reasonable probability that, but for the error, the result of the proceeding would have been different. Yarborough v. Gentry, 540 U.S. 1, 5 (2003); Wiggins v. Smith, 539 U.S. 510, 521, 534 (2003); Garza v. State, 213 S.W.3d 338, 347-48 (Tex. Crim. App. 2007). An ineffective assistance claim must be firmly founded in the record and the record must affirmatively demonstrate the meritorious nature of the claim. See Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). 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 grounded in legitimate trial strategy, we will defer to counsel's decisions and deny relief on an ineffective assistance claim on direct appeal. Garza, 213 S.W.3d at 348; Andrews v. State, 159 S.W.3d 98, 101B03 (Tex. Crim. App. 2005).
In this case, although appellant=s counsel struck the two venire members for cause, appellant urges that the failure to object to their responses tainted the entire venire panel.[2] However, appellant cites no authority indicating that either the questions posed to those venire members or their answers to those questions were improper, such that an objection would have been sustained. Nor is it apparent how an objection, even if sustained, would have overcome any taint caused by the remarks.[3] In any event, appellant has not shown that a decision by counsel to refrain from objecting to the comments in order to direct no further attention to them could not be sound trial strategy. Because appellant=s first and second issues thus fail to demonstrate ineffective assistance of counsel, they are overruled.
Admission of Medical Records
Appellant=s third issue argues that the trial court erroneously admitted the complainant=s redacted medical records into evidence when the examining physician testified to the same information and findings contained in the records. Appellant claims that the medical records were repetitive, unnecessary, served only to confuse the jury, and were highly prejudicial.
We review a trial court's ruling on a Rule 403 objection for an abuse of discretion. State v. Mechler, 153 S.W.3d 435, 439 (Tex. Crim. App. 2005). As relevant here, rule 403 provides that relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or needless presentation of cumulative evidence. Tex. R. Evid. 403.
During the examining physician=s testimony, appellant=s counsel objected to the admission of the medical records, stating AI=m objecting to the statements made by the complaining witness to the doctor because it violates 403 of the Texas Rules of Evidence, probative value outweighed by prejudicial value. That=s my objection on the statements made to her.@ (emphasis added). Although appellant=s brief contends that the examining physician=s testimony Awas exactly what was in the medical record of the complainant,@ it cites no portions of the record where there was any duplication between the two, let alone how any such duplication could have been unfairly prejudicial. Appellant further claims that admitting the redacted portion of the medical records was highly prejudicial because A[c]ommon experience dictates that the inquisitive minds of the juror will bring them to wonder what information was redacted and why was it redacted.@ However, this would suggest that any redacted exhibit would be inadmissible under rule 403. Because appellant=s third issue fails to demonstrate error in the admission of the complainant=s medical records into evidence, it is overruled, and the judgment of the trial court is affirmed.
/s/ Richard H. Edelman
Justice
Judgment rendered and Memorandum Opinion filed June 26, 2007.
Panel consists of Chief Justice Hedges and Justices Fowler and Edelman.
Do not publish C Tex. R. App. P. 47.2(b).
[1] A jury found appellant guilty of the offense and assessed punishment at life imprisonment.
[2] Appellant also claims that, because the statements were tantamount to the jury receiving evidence, he is entitled to a new trial under Texas Rule of Appellate Procedure 21.3(f). However, because Rule 21.3(f) only applies in situations when a jury received evidence after retiring to deliberate, it does not support appellant=s contention. See Tex. R. App. P. 21.3(f). Additionally, a motion for new trial in a criminal case may be granted only on the defendant's timely motion; the trial court has no authority to grant a new trial on its own motion. Ex parte Ybarra, 629 S.W.2d 943, 945 (Tex. Crim. App. 1982); State v. Provost, 205 S.W.3d 561, 566 (Tex. App.CHouston [14th Dist.] 2006, no pet.). Appellant did not file a motion for new trial in this case and does not contend that his counsel=s failure to do so constituted ineffective assistance of counsel.
[3] Appellant does not contend that counsel should have also requested an instruction to disregard or a mistrial or that either would have had to be granted.