Jorge Longoria v. State

NUMBER 13-12-00226-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

JORGE LONGORIA, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 357th District Court
of Cameron County, Texas.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Rodriguez and Garza
Memorandum Opinion by Justice Rodriguez
Appellant Jorge Longoria challenges his convictions for one count of continuous

sexual abuse of M.L., a young child, and for two counts of indecency with a child. 1 See

TEX. PENAL CODE ANN. §§ 21.02(b) (West Supp. 2011), 21.11 (West 2011). The trial

1
The jury found Longoria not guilty on three other counts.
court assessed punishment at thirty year’s imprisonment for continuous sexual abuse of a

young child and ten years for each of the other convictions, with the sentences to run

concurrently. By his first four issues, Longoria complains that the trial court abused its

discretion by admitting (1) hearsay statements of the child through the father’s testimony;

(2) bolstering-witness testimony; (3) certain expert testimony; and (4) a medical report

that contained hearsay. By his remaining four issues, Longoria contends that (5) the trial

court failed to include in the appellate record documents that it reviewed in camera; (6) his

counsel provided ineffective assistance; (7) the jury charge violated his right to a

unanimous verdict; and (8) the trial court failed to grant a mistrial on allegations of

prosecutorial misconduct. We affirm.

I. ADMISSION OF EVIDENCE2

A. STANDARD OF REVIEW AND APPLICABLE LAW

We review a trial court's decision to admit evidence, including expert witness

testimony, under an abuse of discretion standard. Martinez v. State, 327 S.W.3d 727,

736 (Tex. Crim. App. 2011); Sexton v. State, 93 S.W.3d 96, 99 (Tex. Crim. App. 2002).

"A timely and specific objection is required to preserve error for appeal." Luna v.

State, 268 S.W.3d 594, 604 (Tex. Crim. App. 2008); see TEX. R. APP. P. 33.1(a)(1)(A).

Appellate arguments must correspond with the objection at trial. Gallo v. State, 239

S.W.3d 757, 768 (Tex. Crim. App. 2007). “An objection is timely if it is made as soon as

the ground for the objection becomes apparent, i.e., as soon as the defense knows or

should know that an error has occurred.” Grant v. State, 345 S.W.3d 509, 512 (Tex.
2
Because this is a memorandum opinion and the parties are familiar with the facts, we will not
recite them here except as necessary to advise the parties of the Court's decision and the basic reasons for
it. See TEX. R. APP. P. 47.4.

2
App.—Waco 2011, pet. ref’d) (citing Neal v. State, 256 S.W.3d 264, 279 (Tex. Crim. App.

2008)).

B. Outcry-Witness Testimony

By his first issue, Longoria contends that the trial court erred in admitting hearsay

statements of M.L. through her father, whom Longoria claims was a second, improper

out-cry witness. Longoria argues that the admission of this testimony violated article

38.072, section 2(a) of the Texas Code of Criminal Procedure. See TEX. CODE CRIM.

PROC. ANN. art. 38.072, § 2(a) (West Supp. 2011). However, Longoria did not object to

the father’s testimony under either article 38.072, section 2(a) or the general rule against

hearsay. See Luna, 268 S.W.3d at 604; Grant, 345 S.W.3d at 512; see also TEX. R. APP.

P. 33.1(a)(1)(A). Longoria failed to preserve this issue for our review. We therefore

overrule his first issue.

C. Bolstering-Witness Testimony

In his second issue, Longoria contends that the State intentionally called M.L.’s

mother to attack M.L.’s character for truthfulness in order to precipitate otherwise

improper, bolstering-witness testimony later at trial. Yet Longoria did not object to any

witness’s testimony on the basis of improper bolstering, such that the trial court was

informed of the basis of his complaint. See Luna, 268 S.W.3d at 604; Grant, 345 S.W.3d

at 512; see also TEX. R. APP. P. 33.1(a)(1)(A). Longoria has not preserved this complaint

for our review. We overrule Longoria’s second issue.

D. Expert Witness Testimony

In the section of his brief listing the issues presented on appeal and in the opening

paragraph of his third issue, Longoria contends that his conviction should be set aside
3
because expert testimony was introduced in violation of Texas Rule of Evidence 704.

See TEX. R. EVID. 704 (“Testimony in the form of an opinion or inference otherwise

admissible is not objectionable because it embraces an ultimate issue to be decided by

the trier of fact.”). Yet Longoria did not provide record cites for the expert testimony

about which he complains. See McCarthy v. State, 65 S.W.3d 47, 49 n.2 (Tex. Crim.

App. 2001); see also TEX. R. APP. P. 38.1(i). And although Longoria cited to rule of

evidence 704, Schultz v. State, Jordan v. State, and Decker v. State for general

propositions of law related to expert witness testimony, he did not apply his cited authority

to the facts in support of his arguments that: (1) the testimony was offered to supplant

the determination of the jury and not to aid the jury; and (2) expert Sister Mary Lucy was

not qualified to give any testimony because she had never met M.L., yet testified as to the

child’s demeanor and ultimate believability in violation of Longoria’s rights to a fair trial.

See Schultz, 957 S.W.2d 52, 59–74 (Tex. Crim. App. 1997) (en banc); Jordan, 928

S.W.2d 550, 553–54 (Tex. Crim. App. 1996); Decker, 894 S.W.2d 475, 479 (Tex.

App.—Austin 1995, pet. ref’d) (per curiam). Longoria simply did not provide substantive

analysis explaining how any expert testimony in this case is in violation of rule 704 or any

other evidentiary rule. See McCarthy, 65 S.W.3d at 49 n.2; see also TEX. R. APP. P.

38.1(i). We conclude that Longoria’s third issue is inadequately briefed and presents

nothing for review. We overrule the third issue.

E. Strayer’s Medical Report

By his fourth issue, Longoria contends that the trial court abused its discretion

when it admitted medical records, which contained representations that were in violation

of his Sixth Amendment right of confrontation. Goldie Strayer testified that she
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conducted a sexual assault examination on M.L. in May of 2009 and prepared a medical

report based on her observations. The trial court admitted this medical report over

Longoria’s hearsay objection. But a hearsay objection does not preserve error on the

confrontation clause ground. Reyna v. State, 168 S.W.3d 173, 179 (Tex. Crim. App.

2005) (citing Paredes v. State, 129 S.W.3d 530, 535 (Tex. Crim. App. 2004)); see Gallo,

239 S.W.3d at 768. Claims under the confrontation clause require a timely and specific

objection to preserve error. Davis v. State, 313 S.W.3d 317, 347 (Tex. Crim. App. 2010).

Longoria has not preserved error on this issue. We overrule the fourth issue.

II. APPELLATE RECORD

In his fifth issue, Longoria contends that we should set aside his conviction

because the trial court improperly failed to include Brady materials in the record on

appeal. See Brady v. Maryland, 373 U.S. 83, 87 (1963) (holding that “the suppression by

the prosecution of evidence favorable to an accused upon request violates due process

whether the evidence is material either to guilt or to punishment, irrespective of the good

faith or bad faith of the prosecution”). Although Longoria does not indicate what records

the trial court should have included in the appellate record, the State describes the

records as notes made by M.L.’s counselor during the summer of 2009.3 The trial court

conducted an in camera review of the treatment notes and determined that they were

confidential and not subject to disclosure under Brady. See id. Longoria made a formal

offer of proof with regard to these records.

Nonetheless, the complained-of records are not contained in the record on appeal.

3
From our review of the record, the counselor’s notes may have also included sessions that were
held beginning again in the summer of 2010.
5
Longoria did not request that these materials be sealed and included in the record.

Thus, Longoria has waived any possible error by failing to secure the inclusion of the

counselor’s notes in the record. See Villarreal v. State, 576 S.W.2d 51, 65 (Tex. Crim.

App. 1978) (en banc) (determining that the accused waived possible Brady error by failing

to secure the inclusion of prosecutor's file in the appellate record); see also Shaw v. State,

No. 03-08-00506-CR, 2009 WL 1896068, at *12 (Tex. App.—Austin July 3, 2009, no pet.)

(mem. op., not designated for publication). We overrule this fifth issue.

III. INEFFECTIVE ASSISTANCE OF COUNSEL

In his sixth issue, Longoria asserts that his conviction should be set aside because

he received ineffective assistance of counsel at trial. Longoria argues that

ineffectiveness was demonstrated by the following actions or inactions of his trial counsel:

(1) fail[ure] to adequately protect [his] rights by insisting on discovery
requests; (2) fail[ure] to object to the introduction of expert hearsay
evidence in violation of [his] rights; (3) fail[ure] to object to hearsay
testimonial statements by the nurse on reports; (4) [actions that opened] the
door to the admission of hearsay evidence during the guilt/innocence phase
thereby destroying [his credibility] and prejudicing his defense; and (5)
fail[ure] to object to hearsay improper statements.

Longoria also asserts that counsel was ineffective because he “never properly

objected or sought to a [sic] have a limiting instruction on extraneous evidence [in order to

preserve error on appeal] and further did not properly object to the introduction of exhibits

that were cumulative.” Finally, Longoria complains that counsel’s assistance was

ineffective because counsel never objected to a nurse’s “report that contained findings

that were testimonial in nature,” an omission Longoria claims was in violation of the

principles established in Crawford v. Washington. See 541 U.S. 36, 57–60 (2004)

(holding that, without exception, testimonial hearsay statements of witnesses absent from
6
trial are admissible over a Sixth Amendment Confrontation Clause objection only where

the declarant is unavailable and where the defendant has had a prior opportunity to

cross-examine the declarant).

A. Applicable Law and Standard of Review

A claim of ineffectiveness of counsel requires an appellant to show (1) that

counsel's trial performance was so deficient that counsel failed to function as the

“counsel” guaranteed under the Sixth Amendment to the Federal Constitution; and (2)

that counsel's deficient performance prejudiced the appellant, depriving appellant of a fair

trial. Strickland v. Washington, 466 U.S. 668, 687 (1984); Lopez v. State, 343 S.W.3d

137, 143–44 (Tex. Crim. App. 2011). An appellant bears the burden of proving by a

preponderance of the evidence that his counsel was ineffective. Thompson v. State, 9

S.W.3d 808, 813 (Tex. Crim. App. 1999).

“Deficient performance means that ‘counsel made errors so serious that counsel

was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth

Amendment.’”4 Ex parte Napper, 322 S.W.3d 202, 246 (Tex. Crim. App. 2010) (quoting

Strickland, 466 U.S. at 687). Appellant must overcome the strong presumption that

counsel's conduct was constitutionally adequate, falling within the wide range of

reasonable professional assistance, and that his actions could be considered sound trial

strategy or the product of a tactical decision. See Strickland, 466 U.S. at 689; State v.

Morales, 253 S.W.3d 686, 696 (Tex. Crim. App. 2008) (en banc); Jaynes v. State, 216

S.W.3d 839, 851 (Tex. App.—Corpus Christi 2006, no pet.). An allegation of

4
Although Longoria’s argument focuses on the prejudice prong of Strickland, it is Strickland’s first
prong that is dispositive of this issue, and so we will only set out the law applicable to counsel’s performance
and its deficiency, if any. See TEX. R. APP. P. 47.1; Strickland v. Washington, 466 U.S. 668, 687 (1984).
7
ineffectiveness must be firmly founded in the record, and the record must affirmatively

demonstrate the alleged ineffectiveness. Bone v. State, 77 S.W.3d 828, 835 (Tex. Crim.

App. 2002); Thompson, 9 S.W.3d at 814 n.6.

A reviewing court will not second-guess legitimate tactical decisions made by trial

counsel. Morales, 253 S.W.3d at 696. We cannot speculate beyond the record

provided; rather, we must generally presume that the actions were taken as part of a

strategic plan for representing the client. Young v. State, 991 S.W.2d 835, 837–38 (Tex.

Crim. App. 1999) (en banc). On a silent record, this Court can find ineffective assistance

of counsel only if the challenged conduct was so outrageous that no competent attorney

would have engaged in it. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App.

2005).

B. Discussion

1. Briefing

After setting out general propositions of law regarding ineffective assistance of

counsel, except for his allegations regarding testimonial evidence, Longoria directs us to

nothing in the record to support his contentions and makes no supporting arguments. It

is not the duty of this Court to search through the record and identify errors. See Perez v.

State, 41 S.W.3d 712, 716 (Tex. App.—Corpus Christi 2001, no pet.); see also Valadez v.

Avitia, 238 S.W.3d 843, 845 (Tex. App.—El Paso 2007, no pet.) (“An appellate court has

no duty—or even right—to perform an independent review of the record and applicable

law to determine whether there was error. Were we to do so . . . we would be

abandoning our role as neutral adjudicators and become an advocate for that party.”);

McCown v. State, No. 13-00-598-CR, 2001 WL 34394323, at *4 (Tex. App.—Corpus
8
Christi Aug. 16, 2001, no pet.) ( not designated for publication). Rather, it is Longoria's

duty to identify counsel’s errors with record citations and to provide supporting arguments

in his brief. See Perez, 41 S.W.3d at 716; see also McCown, 2001 WL 34394323, at *4.

An assertion without argument, authority, or citation to the record presents nothing for our

review. See TEX. R. APP. P. 38.1(h); McFarland v. State, 928 S.W.2d 482, 512 (Tex.

Crim. App. 1996) (en banc) (per curiam); Perez, 41 S.W.3d at 716. Except for his

contention regarding counsel’s alleged failure to object to the admission of testimonial

evidence, we conclude that Longoria’s general allegations regarding ineffective

assistance of counsel are inadequately briefed. See Perez, 41 S.W.3d at 716.

2. Testimonial Evidence

Regarding Longoria’s contention that trial counsel failed to object to testimonial

statements contained in Strayer’s sexual-assault medical examination report, Longoria

claims that he was prejudiced by counsel’s failure to object to the findings in this report

that were testimonial in nature. More specifically, Longoria asserts that the “testimony of

the State’s nurse expert witness went beyond a sterile recitation but [was] a subjective

narration of events[ ] related to the person’s potential guilt.” He argues that “[t]hus the

introduction of testimony by a nurse which was not subject to cross-examination was in

violation of the Defendant’s right to confrontation.” Longoria claims that counsel “did not

have an adequate preparation of the facts surrounding the expert witness and their [sic]

reports and as a result prejudicial evidence came in that resulted in a conviction and thus

[he] received ineffective assistance of counsel and the conviction should be set aside.”

The record here is silent as to why trial counsel failed to object to the testimonial

testimony; it does not affirmatively demonstrate the alleged ineffectiveness. See Bone,
9
77 S.W.3d at 835; Thompson, 9 S.W.3d at 814 n.6. Longoria could have supplemented

the record through a hearing on a motion for new trial, but he did not produce additional

information about trial counsel's reasons for allowing testimony regarding Strayer’s

sexual-assault medical examination report. See Lopez, 343 S.W.3d at 143–44. So we

must presume that counsel's actions were taken as part of a strategic plan for

representing Longoria. See Morales, 253 S.W.3d at 696; Young, 991 S.W.2d at 837–38;

Jaynes, 216 S.W.3d at 851. And Longoria has failed to establish that counsel’s

performance was defective when he did not object to the hearsay testimonial statements

contained in Strayer’s sexual-assault medical examination report. See Ex parte Napper,

322 S.W.3d at 246 (quoting Strickland, 466 U.S. at 687). He has not met his burden

under the first prong of Strickland. See Thompson, 9 S.W.3d at 813. Because Longoria

failed to meet his burden on the first prong of Strickland, we need not consider the

requirements of the second prong. See TEX. R. APP. P. 47.1; Strickland, 466 U.S. at 687.

Moreover, nothing in this record suggests that counsel’s assistance was so outrageous

that no competent attorney would have engaged in it. See Goodspeed, 187 S.W.3d at

392. We overrule Longoria’s sixth issue.

IV. UNANIMOUS VERDICT

Longoria asserts by his seventh issue that the trial court failed to instruct the jury

properly on the issue of continuous sexual abuse of a young child. 5 See TEX. PENAL

CODE ANN. § 21.02(d). Longoria claims that the trial court denied his requested

instruction and violated his fundamental right to a unanimous jury verdict.

5
To the extent Longoria argues sufficiency of the evidence to support this conviction, we conclude
that any sufficiency argument has been inadequately briefed. See TEX. R. APP. P. 38.1(i).
10
A. The Law

A person commits the offense of continuous sexual abuse of a young child if,

during a time period of thirty or more days, that person commits two or more acts of

sexual abuse against a child. Id. An act of sexual abuse means “any act that is in

violation of . . . indecency with a child under Section 21.11(a)(1) . . . [or] . . . aggravated

sexual assault under Section 22.021.” Id. § 21.02(c).

On the issue of unanimity, the penal statute provides that the jury is “not required to

agree unanimously on which specific acts of sexual abuse were committed by the

defendant or the exact date when those acts were committed.” Id. § 21.02(d). And

while the jury need not be unanimous on the specific acts of sexual abuse alleged in the

indictment, the jury must “agree unanimously that the defendant, during a period that is

30 or more days in duration, committed two or more acts of sexual abuse.” Id.

B. Discussion

Count one of the indictment charged Longoria with continuous sexual abuse of a

young child under section 21.02 of the penal code. See id. It alleged that Longoria

committed two or more acts of sexual abuse against M.L. during a period that was thirty

days or more in duration, from September 1, 2007 to February 1, 2009. See id. The

State alleged that, during that period of time, Longoria committed at least two of four acts

of sexual abuse referenced in the indictment.

The following paragraph four of the court’s charge instructed the jury as to which

elements of the offense the jury had to be unanimous in order to find Longoria guilty on

court one:

In reference to count I, you are instructed that members of the jury are not
11
 required to agree unanimously on which acts of sexual abuse, if any, were
committed by the defendant or the exact date when those acts were
committed, if any. The jury must agree unanimously that the defendant,
during a period that was 30 or more days in duration, committed two or
more acts of sexual abuse as that term has been previously defined.

During the charge conference, defense counsel objected to the jury charge on the ground

that it invited a non-unanimous verdict and, therefore, violated his constitutional and

statutory rights. The trial court overruled his objection.

In Reckart v. State, this Court disagreed with the premise underlying Reckart's

argument—“that the statute [section 21.02] allows a non-unanimous verdict on each

element of the offense.” 323 S.W.3d 588, 600 (Tex. App.—Corpus Christi 2010, pet.

ref’d). Instead, we concluded that section 21.02 does not allow for a non-unanimous

verdict on the essential elements of the offense. Id. at 600–01. Our sister courts agree

with this conclusion, holding that section 21.02 does not allow for a non-unanimous

verdict on the essential elements of the offense and does not violate the unanimity

provision of the Texas Constitution. Render v. State, 316 S.W.3d 846, 857–58 (Tex.

App.—Dallas 2010, pet. ref’d); see McMillan v. State, 388 S.W.3d 866, 871–72 (Tex.

App.—Houston [14th Dist.] 2012, no pet.); Kennedy v. State, 385 S.W.3d 729, 731–32

(Tex. App.—Amarillo 2012, pet. ref'd); Casey v. State, 349 S.W.3d 825, 829–30 (Tex.

App.—El Paso 2011, pet. ref'd); Martin v. State, 335 S.W.3d 867, 872–73 (Tex.

App.—Austin 2011, pet. ref'd); see also Perez v. State, No. 05-12-00377-CR, 2013 WL

4568296, at *5–7 (Tex. App.—Dallas Aug. 26, 2013, no pet.) (mem. op., not designated

for publication). Likewise, dispensing with jury unanimity on the underlying acts of

sexual abuse does not violate the constitutional right to a unanimous jury verdict. See

Render, 316 S.W.3d at 857–58; Reckart, 323 S.W.3d at 600–01; see also Perez, 2013
12
WL 4568296, at *6.

In this case the trial court instructed the jury in accordance with the statute. The

charge correctly instructed the jury that section 21.02 did not allow for a non-unanimous

verdict on the essential elements of the offense. See Reckart, 323 S.W.3d at 600–01;

see also TEX. PENAL CODE ANN. § 21.02(d). And consistent with section 21.02(d), the

charge properly instructed the jury that it did not require the jurors to agree unanimously

as to the specific acts Longoria committed. See TEX. PENAL CODE ANN. § 21.02(d). We

conclude that the charge did not violate Longoria’s right to a unanimous verdict, and the

trial court did not err in so instructing the jury. We overrule the seventh issue.

V. PROSECUTORIAL MISCONDUCT

In his eighth issue, Longoria contends that his conviction should be set aside

because the trial court failed to grant a mistrial on allegations of prosecutorial misconduct.

In support of this issue, Longoria complains that the Victim’s Assistance Coordinator

allegedly encouraged M.L. to provide an “I don’t remember” response when she could not

recall certain events or if she got in trouble and to cry so that her allegation of sexual

abuse could be more believable to the jury.

“The proper method of preserving error in cases of prosecutorial misconduct is to

(1) object on specific grounds, (2) request an instruction that the jury disregard the

comment, and (3) move for a mistrial.” Ajar v. State, 176 S.W.3d 554, 565–67 (Tex. App.

2004) (citing Penury v. State, 903 S.W.2d 715, 764 (Tex. Crim. App. 1995) (en banc) (per

curiam); Cook v. State, 858 S.W.2d 467, 473 (Tex. Crim. App. 1993) (en banc)). In this

case, Longoria made no objection on the basis of prosecutorial misconduct in the trial

court to the alleged error. By failing to object on this theory at trial, Longoria has
13
preserved nothing for our review. See Perkins v. State, 902 S.W.2d 88, 96 (Tex.

App.—El Paso 1995, writ ref'd). We overrule Longoria’s eighth issue.

VI. CONCLUSION

We affirm the judgment of the trial court.

NELDA V. RODRIGUEZ
Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the 17th
day of October, 2013.

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