Affirm and Opinion Filed July 10, 2013
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-11-01310-CR
CANDELO PEREZ TORRES, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 204th Judicial District Court
Dallas County, Texas
Trial Court Cause No. F08-24517-Q
MEMORANDUM OPINION
Before Justices Bridges, Lang, and Richter1
Opinion by Justice Bridges
Candelo Torres appeals his conviction for aggravated sexual assault of a child younger
than 14 years of age. After a bench trial, the trial judge found appellant guilty and sentenced him
to eight years’ confinement and a fine of $3000. In two issues, appellant argues he received
ineffective assistance of counsel, and the evidence is insufficient to support his conviction. We
affirm the trial court’s judgment.
T.G. testified she was nine years old when appellant moved in with her brother, R.G., and
her mother, Gaye. Appellant and Gaye got married sometime thereafter, and a boy and a girl,
E.T. and C.T., were born out of that marriage. T.G. recalled that appellant and her mother were
1
The Hon. Martin Richter, Justice, Assigned
married for four or five years and that appellant no longer lived with them when she was
fourteen years old.
T.G. testified that in August of 2000, when she was eleven years old, her mother rented a
bounce house for her and R.G.’s joint birthday party. T.G. went outside to the bounce house
with blankets and pillows and told R.G. to go get his own, and they were going to sleep in the
bounce house that night. Appellant went outside to the bounce house and was jumping around
with T.G., but when she lay down under her covers appellant got under the covers too and started
“spooning” her. When appellant was spooning T.G., he started putting his hands all over her
legs and feeling her up through her shorts and underwear to touch her vagina skin to skin. T.G.
testified appellant put his fingers “all over [her] private area, like going from my clitoris down to
my vagina hole.”
T.G. testified the bounce house incident was not the first time appellant touched her
vagina. T.G. testified she was ten years old the first time appellant touched her inappropriately
in the swimming pool in the backyard. Appellant got in the pool with T.G. and R.G. and swam
up underneath the water in between T.G.’s legs. He then pulled T.G.’s bikini bottom aside and
“smashes his mouth all in [her] vagina.” T.G. “freaked out” and “got out of there” and went
inside the house and went to bed.
T.G. testified a third incident occurred when she was in sixth grade. Appellant came into
her room and started tugging at her pants and pulling them down. T.G. woke her mother up and
told her appellant had touched her and tried to pull her pants down that morning. Her mother
started screaming and crying and called her uncle so they could confront appellant, who denied
anything had happened. Someone asked T.G. if she could have been dreaming, and she said,
“Yeah, I was just dreaming, I guess.”
When T.G. was eighteen and no longer living at her mother’s house she made an outcry to
her mother. She made this outcry on finding out that appellant had filed for sole custody of E.T.
and C.T. because she was afraid appellant might sexually abuse them too. Her mother then
encouraged her to “say something.” T.G. and R.G. went to the Garland police department where
T.G. filed a report.
R.G. testified his mother usually rented a bounce house for every birthday party. He was
also “pretty sure” that there was a bounce house for his and T.G.’s joint birthday party in August
2000. He testified he went into the bounce house with T.G. that night after the party was over.
R.G. said it would not have been rare for appellant to be in the bounce house with T.G. R.G.
testified there was a pool in the back yard that was fifteen to twenty feet in diameter and was
deep enough for someone to submerge themselves in and come back up. R.G. testified T.G.
lived in her mother’s house while appellant was living there and stayed there during the week
because of school. However, on the weekends T.G. usually went to her grandmother’s house.
He also testified his relationship with appellant toward the end “wasn’t that great.” R.G. said
appellant put his finger on his rectum multiple times, would pull down his pants and make fun of
the size of his penis, would “put his finger up [R.G.’s] butt,” and one time appellant showed R.G.
his “body parts.” R.G. told his mother about these incidents, and it caused his mother and
appellant to get into a “huge argument.”
Appellant testified in his own defense. He denied ever touching T.G. inappropriately. He
denied ever putting his fingers in her vagina in the bounce house. Appellant testified that T.G.
lived with her grandparents almost the whole time he was with Gaye and that it was rare for T.G.
to spend the night or even live in the household. He also denied that there was ever a bounce
house on the property and testified there was only a trampoline. Appellant testified that there
was a small swimming pool in the backyard, but T.G. never swam in it because she did not live
in the house. He said it would have been impossible for him to swim underneath a nine or ten
year old child in the pool. Appellant denied ever going into T.G.’s bedroom when she was there.
Appellant testified he got along with R.G. well and denied ever flicking his penis at him or
pulling down his pants and making fun of the size of his penis. On cross-examination appellant
admitted T.G. got in the swimming pool “like two times.” He maintained that T.G. was lying
about all three specific instances that she described. At first appellant testified that the first time
he heard any allegations by T.G. of him touching her inappropriately was in 2008 but then
admitted Gaye and Uncle Roy had confronted him once before. At the conclusion of the
evidence, the trial judge found appellant guilty, and this appeal followed.
In his first issue, appellant argues the evidence is insufficient to support his conviction.
Specifically, appellant argues T.G.’s testimony does not establish vaginal penetration beyond a
reasonable doubt. Further, appellant complains of the belated outcry and argues that T.G. was
motivated to outcry because he filed for sole custody of E.T. and C.T. We disagree.
The State initially offered appellant a plea bargain agreement which he rejected and stated
he wanted to plead not guilty. Appellant’s counsel admonished him that, because he was a
resident and not a citizen, a conviction could result in his being deported. On the day of trial,
however, appellant entered a plea of no contest and waived a jury.
We do not apply the Jackson “rationality” test in reviewing the sufficiency of the evidence
when a defendant voluntarily enters a plea of guilty or nolo contendere. See Ex parte Martin,
747 S.W.2d 789, 791 (Tex. Crim. App. 1988). When a defendant pleads guilty or nolo
contendere, the State must introduce sufficient evidence into the record to support the plea and
show the defendant is guilty, and said evidence shall be accepted by the court as the basis for its
judgment. TEX. CODE CRIM. PROC. ANN. art. 1.15 (West 2005); see also Ex parte Martin, 747
S.W.2d at 792-93. We will affirm the trial court’s judgment if the evidence introduced embraces
every essential element of the offense charged and is sufficient to establish a defendant’s guilt.
See Stone v. State, 919 S.W.2d 424, 427 (Tex. Crim. App. 1996).
A person commits the offense of aggravated sexual assault of a child younger than 14 years
of age if he intentionally and knowingly causes the penetration of the female sexual organ of a
child, who is not then the spouse of the defendant, by an object, and at the time of the offense,
the child was younger than 14 years of age. See Tex. Penal Code Ann. §§ 22.021(a)(1)(B)(i),
(a)(1)(B)(iii), (a)(2)(B) (West 2011).
The record shows appellant went outside to the bounce house and was jumping around
with T.G., but when she lay down under her covers appellant got under the covers too and started
“spooning” her. When appellant was spooning T.G., he started putting his hands all over her
legs and feeling her up through her shorts and underwear to touch her vagina skin to skin. T.G.
described appellant putting his fingers “all over her private area, like going from my clitoris
down to my vagina hole.” Even though appellant complains that T.G.’s testimony is
uncorroborated, in Texas, the testimony of a child complainant itself is enough to support a
conviction for aggravated sexual assault. TEX. CODE CRIM. PROC. ANN. art. 38.07(a), (b)(1)
(West Supp. 2011); see Tear v. State, 74 S.W.3d 555, 560 (Tex. App.—Dallas 2002, pet.
ref’d); Sandoval v. State, 52 S.W.3d 851, 854-55 (Tex. App.—Houston [1st Dist.] 2001, pet.
ref’d) We conclude the evidence is sufficient to show appellant committed the offense of
aggravated sexual assault of a child younger than 14 years of age. See Ex parte Martin, 747
S.W.2d at 791-93. We overrule appellant’s first issue.
In his second issue, appellant argues he received ineffective assistance of counsel because
trial counsel permitted Detective Hale to testify about what R.G. told him appellant had done,
trial counsel stipulated Detective Hale was an expert in matters pertaining to child abuse, and
trial counsel did not request the State to elect the specific act of sexual assault on which it was
relying for conviction. A claim of ineffective assistance of counsel is reviewed under the
Strickland test. Hernandez v. State, 988 S.W.2d 770, 770 (Tex. Crim. App. 1999) (citing
Strickland v. Washington, 466 U.S. 668 (1984)). In determining whether counsel rendered
ineffective assistance, an appellate court considers two factors: (1) whether counsel’s
performance fell below an objective standard of reasonableness and (2) whether, but for
counsel’s deficient performance, the result of the proceeding would have been different.
Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999).
Appellant bears the burden of proving his counsel was ineffective by a preponderance of
the evidence. Id. at 813. There is a strong presumption that counsel’s conduct fell within the
wide range of reasonable professional assistance. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim.
App. 2002); Thompson, 9 S.W.3d at 813. To defeat this presumption, appellant must prove that
there was no plausible professional reason for a specific act or omission. Bone, 77 S.W.3d at
836. Any allegations of ineffectiveness must be firmly founded in the record, and the record
must affirmatively demonstrate the alleged ineffectiveness. Thompson, 9 S.W.3d at 813. Thus, a
reviewing court will rarely be able to fairly evaluate the merits of an ineffective assistance claim
on direct appeal because the record on direct appeal is not developed adequately to reflect the
reasons for defense counsel’s actions at trial. Mata v. State, 226 S.W.3d 425, 430 (Tex. Crim.
App. 2007).
Here, we do not have an adequate record to review appellant’s claim of ineffectiveness. See
id.; Thompson, 9 S.W.3d at 813-15. Appellant must prove that there is no possible strategic
reason for counsel’s actions and trial counsel should be given the opportunity to explain his
actions before being denounced as “ineffective.” Bone, 77 S.W.3d at 836. The record before us
is devoid of evidence from trial counsel himself and is “simply undeveloped and cannot
adequately reflect the failings of trial counsel.” Thompson, 9 S.W.3d at 814 (citing Jackson v.
State, 973 S.W.2d 954,957 (Tex. Crim. App. 1998)). The record is silent as to why appellant’s
trial counsel permitted Detective Hale to testify about what R.G. told him appellant had done,
stipulated Detective Hale was an expert in matters pertaining to child abuse, and did not request
the State to elect the specific act of sexual assault on which it was relying for conviction.
Therefore, appellant has failed to rebut the presumption that counsel’s decisions were reasonable.
Bone, 77 S.W.3d at 833; Thompson, 9 S.W.3d at 813-814. Further, as we have already
concluded, the evidence showed appellant committed the charged offense when T.G. described
how appellant putt his fingers “all over her private area, like going from my clitoris down to my
vagina hole.” We overrule appellant’s second issue.
We affirm the trial court’s judgment.
/David L. Bridges/
DAVID L. BRIDGES
JUSTICE
Do Not Publish
TEX. R. APP. P. 47
111310F.U05
S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
CANDELO PEREZ TORRES, Appellant On Appeal from the 204th Judicial District
Court, Dallas County, Texas
No. 05-11-01310-CR V. Trial Court Cause No. F08-24517-Q.
Opinion delivered by Justice Bridges.
THE STATE OF TEXAS, Appellee Justices Lang and Richter participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered July 10, 2013
/David L. Bridges/
DAVID L. BRIDGES
JUSTICE