Jose Fransisco Mendoza-Navarro v. State

Opinion issued March 16, 2021

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-18-00706-CR
———————————
JOSE FRANSISCO MENDOZA-NAVARRO, Appellant
V.
THE STATE OF TEXAS, Appellee

On Appeal from the 176th District Court
Harris County, Texas
Trial Court Case No. 1542074

MEMORANDUM OPINION

Jose Fransisco Mendoza-Navarro1 was convicted of continuous sexual abuse

of a child and sentenced to 25 years’ imprisonment. TEX. PENAL CODE § 21.02(b).

1
We have used the spelling of the appellant’s name found on the trial court
judgment.
On appeal, he contends that the evidence is insufficient to support his conviction

and that he received ineffective assistance of counsel at trial. We affirm.

Background

Mendoza-Navarro was indicted for continuous sexual abuse of a child after

his teenage daughter, M.M., told her school counselor that he had sexually abused

her beginning when she was eight years old until she was twelve years old. He

pleaded not guilty and proceeded to trial.

At trial, the school counselor, Sasha Ayad, testified that she had worked at

M.M.’s school in southwest Houston as the middle school counselor from 2014

until 2016. She first met with M.M. after M.M.’s mother, Grecia Berrios, reported

that she was concerned about M.M.’s mood. M.M. and Ayad met for a few

sessions to discuss emotional struggles. At the time, Ayad believed M.M.’s sadness

stemmed from parental discord. She also knew that M.M. had cut herself due to her

sadness.

In August 2016, M.M. and another student approached Ayad. The other

student encouraged M.M. to talk to Ayad, and M.M. disclosed that she had been

sexually abused. Ayad asked to speak with M.M. privately, and the other student

left. Over the course of two sessions, M.M. told Ayad that her father touched her

breasts and genital area during visits to his house. She described that she would try

to push her father away, but this only upset him. M.M. was too scared to fight

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back. M.M. told Ayad that the inappropriate touching began when she was eight

years old and continued until she was twelve years old during regularly scheduled

weekend visits with her father. At the time of the disclosure, M.M. was no longer

seeing her father regularly.

In response to the outcry, Ayad reported the sexual abuse to Child Protective

Services and met with M.M.’s mother. M.M.’s mother became very upset and

tearful and was shocked by the news.

M.M.’s mother, Grecia Berrios, testified that Mendoza-Navarro was her first

boyfriend. They met while living in El Salvador when she was thirteen years old

and he was twenty-one years old. She became pregnant with M.M. at fourteen.

After M.M. was born, the couple moved to Houston. Berrios testified that the

appellant was verbally abusive while they lived in El Salvador and became

physically abusive once they moved to the United States. She described an incident

in which Mendoza-Navarro found out that another man had approached her. He

called her into the closet, telling her that something was wrong with one of his

jackets, but when she got there, he bit her all over her body to the point that she

lost consciousness. On another occasion, he pushed her into a bathtub. After one

incident, criminal charges were filed against Mendoza-Navarro, but the case was

dropped because Berrios refused to testify against him.

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 In 2012, M.M.’s parents separated. Berrios moved into an apartment with

eight-year-old M.M. Berrios believed it was important for M.M. to maintain a

relationship with her father, and she made a verbal agreement with him that he

would have overnight visitation with M.M. every other weekend. They also had a

verbal agreement for child support. M.M. stayed with her father every other

weekend from Saturday until Monday.

After a while, M.M. complained to Berrios that she did not want to go on the

visits. Berrios called Mendoza-Navarro to ask why M.M. was so upset and did not

want to visit him. He responded that M.M. was upset because he had disciplined

her for not following instructions or respecting him. M.M. continued to see her

father for months even though she continually asked her mother to stop the visits.

M.M. stopped seeing her father after Berrios noticed that her daughter was

extremely upset. M.M. would not leave her room, began losing weight, and lost

focus at school. Berrios discovered M.M. cutting herself in her room. She stopped

requiring M.M. to spend weekends with her father, and in turn, Mendoza-Navarro

stopped paying child support.

After she found M.M. cutting herself, Berrios contacted the school counselor

and explained her concerns about M.M. M.M. saw the school counselor for about a

year before Mendoza was called into her office and learned that M.M. said her

father had sexually abused her. At the time, Mendoza-Navarro had not visited with

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his daughter in about a year. After she heard from the school counselor, Mendoza

called the police and made a report. She took M.M. for a forensic interview and a

medical exam.

Brittany Dancer, forensic interviewer at the Children’s Assessment Center

testified regarding the interview she conducted with M.M. During the interview,

M.M. told her that her father had touched her on her “vagina, her butt, and her

breasts.” M.M. told Dancer that the incidents occurred from when she was eight

years old until she was twelve. At the time of the interview, M.M. was thirteen.

During the interview, M.M. started out happy, smiling, and talkative. When she

mentioned the abuse, her demeanor changed significantly. She spoke softly and her

tone and body language changed. At the conclusion of Dancer’s testimony, a video

of the forensic interview was offered into evidence and published to the jury.

M.M. testified that beginning when she was eight years old, she stayed

overnight with her father every other weekend. Every time she visited, Mendoza-

Navarro touched her “breast, butt, [and] vagina.” She testified that the incidents

happened in the living room and bedroom and once in a car. M.M. described that

Mendoza-Navarro would wake up earlier than she did, come into the bedroom, and

touch her while she was in bed. While he touched her, he would lay down in bed

behind her with the front of his body touching the back of her body. M.M. testified

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that on one occasion, they were watching a movie in the living room, and

Mendoza-Navarro put his hands under her shirt and touched her breasts.

She stopped seeing Mendoza-Navarro when she was about twelve. She told

her mother that she did not want to see him, but she did not tell her mother at that

time that he had been touching her inappropriately. She testified that she felt the

touching was normal because Mendoza-Navarro had consistently touched her for

so long. She thought that it was part of what a father does. M.M. testified that

Mendoza-Navarro touched her “butt, breast, and vagina” every time she visited, on

both days of her visit, from when she was eight years old until she twelve years

old.

M.M. testified that after she had stopped seeing her father for a while, she

spent one more weekend with him. First, they went to a restaurant with her mother.

Then, he drove M.M. to his apartment. On the way, they stopped at a stoplight, and

he tried to kiss her and touch her. She fought back and pushed him away. When the

traffic light turned green, he drove on and did not try to touch her again. After the

encounter, M.M. told the school counselor about the abuse, in part, because despite

not seeing him, her father had not changed. She testified that she cut herself

because she did not want to continue living. She also stated that she tried to kill

herself because what was happening with her father was too much for her to

handle.

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 Detective A. Lopez-Keys testified that she was assigned to the case in

January 2017. She reviewed the forensic interview of M.M., M.M.’s medical

records from the Children’s Assessment Center, and M.M.’s therapy records. She

also spoke with M.M.’s mother. Detective Lopez-Keys contacted Mendoza-

Navarro and asked if he would voluntarily give a statement. Though he replied that

he would, he did not show up for the interview. After her investigation, Detective

Lopez-Keys presented the case to the district attorney’s office and charges were

filed.

Mendoza-Navarro testified that he had always had a good relationship with

M.M. He testified that there were times that he argued with M.M.’s mother both in

El Salvador and in the United States. Because she was always with them, M.M.

saw them fighting and arguing. Mendoza-Navarro testified that on one occasion,

M.M.’s mother called the police, and they arrested him. He believed that Berrios

called the police because she did not want to have sexual relations with him. He

believed that M.M.’s mother was not faithful to him, and they separated when he

confronted her about infidelity.

Mendoza-Navarro described a typical weekend with M.M. He picked M.M.

up on Saturday, and they would go out to eat. When they got to his apartment, they

normally watched a movie, and he fell asleep. During the movie, M.M. typically

played with a cell phone given to her by her mother. Mendoza-Navarro did not

7
agree that his daughter should have a cell phone, and he told her not to use it

during movies. Mendoza-Navarro explained that he would discipline M.M.

because she would not do chores, like washing dishes. In 2014, M.M.’s mother

called him and told him that M.M. had cut herself on her arm. M.M., her mother,

and Mendoza-Navarro met at a Starbucks to talk. At the meeting, he heard that

M.M. did not want to stay with him on the weekends because she did not want to

go to church. They often attended church as discipline. Mendoza-Navarro told

M.M. that he loved her and that she should come with him on weekends.

Mendoza-Navarro testified that everything M.M. said about him was false.

Specifically, she said that he had touched her while she was on a sofa, but they

never sat there. He also testified that though M.M. told the forensic interviewer

that she had a bra on sometimes when he touched her, when she was eight years

old, M.M. never wore a bra. He also denied M.M.’s testimony that he hit her for

discipline. He testified that he only spanked her on one occasion, on the “rear end.”

He testified that M.M. was being manipulated by her mother. He believed

M.M. lied to the school counselor, continued the lie at the Children’s Assessment

Center, and did not want to correct the lie because if she did, her mother would

stop believing anything she said. According to Mendoza-Navarro, M.M. lied

because he disciplined her, made her stop using her cell phone during a movie,

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made her make the bed, and made her go to church. Mendoza-Navarro also

believed that M.M. lied about cutting herself to manipulate her mother against him.

After Mendoza-Navarro’s testimony, the defense rested. The jury found

Mendoza-Navarro guilty of continuous sexual abuse of a child and recommended

punishment at 25 years’ imprisonment. TEX. PENAL CODE § 21.02(b). The court

sentenced him in accordance with the jury’s verdict.

Sufficiency of the Evidence

In his first issue, Mendoza-Navarro contends that the evidence is insufficient

to support his conviction. Specifically, he argues that the evidence does not show

that he committed two or more acts of sexual abuse or that he perpetrated those

acts against M.M. during a period of time thirty or more days in duration. We

disagree.

A. Standard of Review

When reviewing the sufficiency of the evidence, we view all of the evidence

in the light most favorable to the verdict to determine whether any rational fact

finder could have found the essential elements of the offense beyond a reasonable

doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Adames v. State, 353 S.W.3d

854, 859 (Tex. Crim. App. 2011). The jurors are the exclusive judges of the facts

and the weight to be given to the testimony. Bartlett v. State, 270 S.W.3d 147, 150

(Tex. Crim. App. 2008). We may not reevaluate the weight and credibility of the

9
evidence or substitute our judgment for that of the factfinder. Williams v. State,

235 S.W.3d 742, 750 (Tex. Crim. App. 2007). We afford almost complete

deference to the jury’s credibility determinations. See Lancon v. State, 253 S.W.3d

699, 705 (Tex. Crim. App. 2008). We resolve any inconsistencies in the evidence

in favor of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000);

see also Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007) (“When

the record supports conflicting inferences, we presume that the factfinder resolved

the conflicts in favor of the prosecution and therefore defer to that

determination.”).

Circumstantial evidence is as probative as direct evidence in establishing

guilt, and circumstantial evidence alone can be sufficient to establish guilt.

Clayton, 235 S.W.3d at 778. “Each fact need not point directly and independently

to the guilt of the appellant, as long as the cumulative force of all the incriminating

circumstances is sufficient to support the conviction.” Hooper v. State, 214 S.W.3d

9, 13 (Tex. Crim. App. 2007).

To establish that Mendoza-Navarro committed the offense of continuous

sexual abuse of a child, the State was required to prove that, during a period thirty

or more days in duration, he committed at least two acts of sexual abuse against

M.M., a child younger than fourteen years of age, while he was at least seventeen

years of age at the time of each of the acts. See TEX. PENAL CODE § 21.02(b).

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 Several crimes can constitute “acts of sexual abuse” under section 21.02(c).

See id. § 21.02(c). The indictment in this case alleged that Mendoza-Navarro

committed at least two acts of indecency with a child. See id. § 21.02(c)(2) (listing

indecency with a child as a sexual act for purposes of continuous sexual abuse of a

child). A person commits the offense of indecency with a child by sexual contact if

the person “engages in sexual contact with the child or causes the child to engage

in sexual contact.” Id. § 21.11(a)(1). “Sexual contact” for purposes of indecency

with a child is defined as “any touching, including touching through clothing, of

the anus, breast, or any part of the genitals of a child” done with the intent to

arouse or gratify the sexual desire of any person. Id. § 21.11(c)(1). But for

purposes of the crime of continuous sexual abuse of a child, indecency with a child

by sexual contact is an “act of sexual abuse” only if the actor committed the

offense in a manner other than by touching the child’s breast, including through

clothing. See id. § 21.02(c)(2).

B. Analysis

The record contains sufficient evidence for any rational factfinder to

conclude that Mendoza-Navarro committed at least two acts of sexual abuse

against M.M. during a period of time longer than thirty days. The jury charge

defined “sexual contact” as “any touching by a person, including touching through

clothing, of any part of the genitals of a child with the intent to arouse or gratify

11
the sexual desire of any person.” The application section of the charge authorized

the jury to convict Mendoza-Navarro of continuous sexual abuse of a young child

if they believed beyond a reasonable doubt that he committed at least two acts of

sexual abuse, namely indecency with a child by sexual contact with M.M.’s

genitals, during a period of thirty days or more in duration between July 15, 2012

through May 1, 2016.

M.M. testified that, beginning when she was eight years old, Mendoza-

Navarro touched her “private parts,” including her “vagina.” She testified that he

touched her “private parts” every time she visited him, and that she visited every

other weekend until she was twelve years old. She stated that he touched her in the

living room and bedroom of his apartment and once in his car. M.M. said that the

abuse continued regularly for four years.

It is well established that a child complainant’s uncorroborated testimony,

standing alone, is sufficient to support a conviction. See TEX. CODE CRIM. PROC.

art. 38.07; Garcia v. State, 563 S.W.2d 925, 928 (Tex. Crim. App. 1978) (holding

complainant’s testimony of penetration by appellant, standing alone, was sufficient

to support conviction); Jensen v. State, 66 S.W.3d 528, 534 (Tex. App.—Houston

[14th Dist.] 2002, pet. ref’d) (stating testimony of child complainant, standing

alone was sufficient evidence). The State has no burden to produce physical or

12
other corroborating evidence. Jones v. State, 428 S.W.3d 163, 169 (Tex. App.—

Houston [1st Dist.] 2014, no pet.).

Here, the State offered testimony supporting M.M.’s testimony. M.M.’s

school counselor described that when M.M. disclosed to her that Mendoza-Navarro

had “touched her” inappropriately, M.M. “pointed . . . towards her breast area and

her genital area.” M.M. also told the counselor that the abuse occurred repeatedly

since she was eight years old. This outcry statement is also sufficient, without

more, to establish that Mendoza-Navarro perpetrated two or more acts of

indecency with a child by sexual contact with M.M.’s genitals. See Jones, 428

S.W.3d at 169 (“[A] child victim’s outcry statement alone can be sufficient to

support a sexual abuse conviction). Brittany Dancer, who conducted a forensic

interview of M.M. also corroborated M.M.’s testimony when she testified that

M.M. disclosed during the interview that Mendoza-Navarro had touched her

“vagina, her butt, and her breasts” beginning when M.M. was eight years old and

ending when she was twelve.

Mendoza-Navarro contends that the evidence is insufficient because

touching a child’s breast cannot constitute indecency by contact for purposes of the

continuous sexual abuse of a child statute. While M.M. testified that Mendoza-

Navarro touched her breast, she also testified that he touched her vagina on

numerous occasions. This testimony was corroborated by both her school

13
counselor and forensic interviewer. The jury charge also did not define sexual

contact to include touching M.M.’s breast, instead instructing the jury that sexual

contact was contact with M.M.’s genitals. There was ample evidence for rational

trier of fact to conclude that Mendoza-Navarro touched M.M.’s genitals on

multiple occasions.

The evidence also supports that the incidents of sexual abuse occurred over a

period of more than thirty days. M.M. testified that the abuse occurred every time

she visited her father and that the abuse occurred on both days of her visit. She

testified that she stayed with him for two nights, every other weekend, for a four-

year period of time. In light of the evidence, any rational factfinder could conclude

beyond a reasonable doubt that Mendoza-Navarro committed two or more acts of

indecency with a child by sexual contact with M.M.’s genitals and that he did so

over more than thirty days. TEX. PENAL CODE § 21.02(b); see also id. § 21.11(a)(1).

Ineffective Assistance of Counsel

In his second issue, Mendoza-Navarro contends that he received ineffective

assistance of counsel. He alleges that his trial attorney was ineffective because she

declined to object to and sponsored evidence that he was verbally and physically

abusive to M.M.’s mother.

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A. Standard of Review

To prevail on a claim of ineffective assistance of counsel, the defendant

must show that (1) counsel’s performance was deficient and (2) a reasonable

probability exists that but for counsel’s deficient performance, the result of the

proceeding would have been different. Strickland v. Washington, 466 U.S. 668,

687, 694 (1984). The defendant bears the burden of proof on both issues, and

failure to make either showing by a preponderance of the evidence will defeat his

ineffectiveness claim. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App.

1999).

Under the first Strickland prong, any judicial review of whether counsel’s

performance was deficient must be highly deferential to trial counsel and avoid the

deleterious effects of hindsight. Id. We begin by presuming that trial counsel

performed within professional norms. Id. We do not assume that counsel lacked a

sound reason for making the choices she did; on the contrary, the defendant must

demonstrate that no plausible reason exists for a particular act or omission. Bone v.

State, 77 S.W.3d 828, 836 (Tex. Crim. App. 2002); Toledo v. State, 519 S.W.3d

273, 287 (Tex. App.—Houston [1st Dist.] 2017, pet. ref’d). When the record is

silent as to trial counsel’s strategy, we will not conclude that appellant received

ineffective assistance unless the challenged conduct was “so outrageous that no

competent attorney would have engaged in it.” Goodspeed v. State, 187 S.W.3d

15
390, 392 (Tex. Crim. App. 2005). Rarely will the trial record contain sufficient

information to permit a reviewing court to fairly evaluate the merits of such a

serious allegation. See Bone, 77 S.W.3d at 833. In the majority of cases, the

appellant is unable to meet the first prong of the Strickland test because the record

is underdeveloped and does not adequately reflect the alleged failings of trial

counsel. See Mata v. State, 226 S.W.3d 425, 430 (Tex. Crim. App. 2007).

A sound trial strategy may be imperfectly executed, and the right to effective

assistance of counsel does not entitle a defendant to errorless or perfect counsel.

See Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006). “It is not

sufficient that the appellant show, with the benefit of hindsight, that his counsel’s

actions or omissions during trial were merely of questionable competence.” Mata,

226 S.W.3d at 430. Rather, to establish that the attorney’s acts or omissions were

outside the range of professionally competent assistance, appellant must show that

counsel’s errors were so serious that she was not functioning as counsel. See

Patrick v. State, 906 S.W.2d 481, 495 (Tex. Crim. App. 1995).

Under the second Strickland prong, a defendant must show more than “that

the errors had some conceivable effect on the outcome of the proceeding.” Perez v.

State, 310 S.W.3d 890, 893 (Tex. Crim. App. 2010) (quoting Strickland, 466 U.S.

at 693). The defendant must show that there is a reasonable probability that, absent

the errors, the jury would have had a reasonable doubt about his guilt. Id. (quoting

16
Strickland, 466 U.S. at 695). A reasonable probability is probability sufficient to

undermine confidence in the outcome. Strickland, 466 U.S. at 694. “If it is easier to

dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice,

that course should be followed.” Id. at 697.

B. Analysis

Mendoza-Navarro’s sole defense at trial was that he never sexually abused

M.M. and that M.M. was lying about the abuse. To explain why M.M. must be

lying, trial counsel took a candid approach with the jury, acknowledging in her

opening statement that Mendoza-Navarro had a turbulent relationship with M.M.’s

mother but that this was a case of “messy separation, not sexual abuse.” On appeal,

Mendoza-Navarro alleges that his counsel should have objected when M.M.’s

mother testified about specific acts of verbal and physical abuse she had

experienced from Mendoza-Navarro. He also contends that counsel should not

have reiterated the testimony by asking M.M.’s mother on cross-examination about

the specific timing of physical abuse during their relationship.

Counsel sought to establish a transparent rapport to have credibility with the

jury. In closing argument, she told the jury that she had freely disclosed the

significant age difference between her client and M.M.’s mother. She also

reiterated that she had been the first to tell the jury of the volatile nature of her

client’s relationship with M.M.’s mother. But she also reiterated that even if

17
Mendoza-Navarro had a turbulent relationship with M.M.’s mother, he was not a

sexually abusive father. While this strategy had risks, we cannot say that the

strategy fell below an objective standard of reasonableness under the

circumstances. Strickland, 466 U.S. at 687. Counsel’s strategy provided context to

M.M.’s relationship with each of her parents and demonstrated the relationship

dynamic that M.M. observed between them. See Martin v. State, 265 S.W.3d 435,

443–45 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (“Because it also appears

that [defendant’s] candor before the jury concerning his prior convictions was a

strategic attempt to appear open and honest, and to lessen the impact of any

impeachment on the issue, we cannot conclude that his counsel provided

ineffective assistance with regard to the introduction of these convictions.”).

Counsel’s strategy allowed Mendoza-Navarro to thoroughly tell his side of the

story, giving him the ability to explain why he believed that M.M was lying. The

strategy gave him the opportunity to admit that though he had issues with her

mother, he was not sexually abusive to M.M. Counsel’s candor and failure to

object when the State introduced related testimony could have been part of a

strategy to establish rapport with the jury, avoid drawing unwanted attention to the

domestic violence, and prevent the impression that she was objecting at every

opportunity as a means of stonewalling evidence. See Huerta v. State, 359 S.W.3d

887, 894 (Tex. App.—Houston [14th Dist.] 2012, no pet.) (counsel’s decision to

18
permit details of prior convictions could be strategy to avoid drawing attention to

them and avoid conclusion that she was attempting to withhold evidence);

Varughese v. State, 892 S.W.2d 186, 196 (Tex. App.—Fort Worth 1994, no pet.)

(failure to object was part of a strategy to appear open and honest).

Because counsel’s performance is consistent with sound trial strategy, we

cannot conclude that counsel performed deficiently. Andrews v. State, 159 S.W.3d

98, 103 (Tex. Crim. App. 2005). On this record, Mendoza-Navarro failed to meet

his burden to establish that his counsel’s strategy was “so outrageous that no

competent attorney would have engaged in it.” Goodspeed, 187 S.W.3d at 392; see

also Bone, 77 S.W.3d at 836. We overrule Mendoza-Navarro’s second issue.

Conclusion

We affirm the judgment of the trial court.

Peter Kelly
Justice

Panel consists of Justices Kelly, Goodman, and Countiss.

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

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