11th Court of Appeals
Eastland, Texas
Opinion
Nathaniel Berry Cruise
Appellant
Vs. No. 11-01-00332-CR -- Appeal from Dallas County
State of Texas
Appellee
The jury convicted appellant of indecency with a child. Upon appellant=s plea of true to two enhancement paragraphs, the jury assessed his punishment at confinement in the Institutional Division of the Texas Department of Criminal Justice for a term of 35 years. Appellant brings two points of error on appeal. We affirm.
In deciding whether the evidence is factually sufficient to support the conviction, we review all of the evidence in a neutral light favoring neither party to determine if the verdict is clearly wrong and manifestly unjust or against the great weight of the evidence. Johnson v. State, 23 S.W.3d 1 (Tex.Cr.App.2000); Clewis v. State, 922 S.W.2d 126, 129 (Tex.Cr.App.1996). We review the fact finder=s weighing of the evidence, and we cannot substitute our judgment for that of the fact finder. Cain v. State, 958 S.W.2d 404 (Tex.Cr.App.1997); Clewis v. State, supra. Due deference must be given to the fact finder=s determination, particularly concerning the weight and credibility of the evidence. Johnson v. State, supra; Jones v. State, 944 S.W.2d 642 (Tex.Cr.App.1996), cert. den=d, 522 U.S. 832 (1997).
The victim testified that she was 13 years old when the incident occurred on August 3, 2000. Her mother left for work early that morning, leaving the victim and her younger sister home alone. The victim=s mother had the victim lock the front door of the house behind her. The victim then went back to sleep in the bed that she shared with her younger sister. The victim testified that someone tapped on her shoulder and made a comment about the channel on the television. The victim was Adead asleep@ at this time. She recalled feeling a hard pain and awoke to find appellant squeezing one of her breasts and her buttocks. The victim testified that appellant was standing beside her bed fully naked and was making a noise while the incident occurred. She ran to the living room of her house while appellant fled.
When the victim=s mother called the house immediately after the incident to check on the girls, the victim told her mother what appellant had done. Her mother came home accompanied by two police officers. The victim and her mother testified that appellant had helped move some of their furniture a few days before the incident. The victim had ridden in appellant=s car while appellant took the mother and her two children to get some chicken one evening. The mother=s work supervisor identified appellant as the man who had picked up the mother from work on the day the move occurred. The victim also identified appellant during a photo line-up.
The mother=s workplace was only a few blocks away from her home. Upon arriving home with the police, she saw appellant driving away. The police officers testified that the mother did not report this observation to them. The police questioned the victim but did not go inside the house. The mother found male underwear beside the victim=s bed and gave it to the police. A DNA expert testified that appellant=s DNA profile matched the DNA profile found on the underwear.
Appellant did not testify. However, both his mother and his common-law wife testified that he was at home the entire morning on the day the incident occurred. They further testified that appellant=s car had broken down on the night before and that it was inoperable until approximately noon of that day. Appellant=s friend testified that he assisted appellant in repairing the car that morning.
In attacking the factual sufficiency of the evidence, appellant points to inconsistencies in the victim=s testimony regarding the time of day that the incident occurred and the length of time between the incident and when appellant assisted the mother with moving furniture. Appellant also attacks alleged deficiencies in the police investigation of the incident and argues that his alibi evidence outweighs the evidence supporting the verdict.
The jury was presented with conflicting testimony regarding appellant=s conduct and whereabouts on the day in question. The fact that underwear containing a sample of matching DNA was recovered from the scene is strong, objective evidence in support of the jury=s verdict. On the other hand, appellant=s alibi evidence came from family members and a friend. The jury, as the finder of fact, is the sole judge of the weight and credibility of the witnesses= testimony. TEX. CODE CRIM. PRO. ANN. arts. 36.13 & 38.04 (Vernon 1979 & 1981). A decision is not clearly wrong and unjust merely because the fact finder resolved conflicting evidence in favor of the State. Cain v. State, supra at 408. The evidence is factually sufficient to support the verdict. Appellant=s first point of error is overruled.
Appellant alleges ineffective assistance of trial counsel in his second point of error. To prevail on a claim of ineffective assistance of counsel, an appellant must establish that his lawyer's performance fell below an objective standard of reasonableness and that there is a "reasonable probability" the result of the proceeding would have been different but for counsel's deficient performance. Strickland v. Washington, 466 U.S. 668, 693-94 (1984); see Mallett v. State, 65 S.W.3d 59, 62-63 (Tex.Cr.App.2001). A reasonable probability is a probability sufficient to undermine confidence in the outcome. Hernandez v. State, 726 S.W.2d 53, 55 (Tex.Cr.App.1986). The purpose of this two-prong test is to judge whether counsel's conduct so compromised the proper functioning of the adversarial process that the trial cannot be said to have produced a reliable result. Thompson v. State, 9 S.W.3d 808, 812-13 (Tex.Cr.App.1999)(citing McFarland v. State, 845 S.W.2d 824, 843 (Tex.Cr.App.1992), cert. den’d, 508 U.S. 963 (1993)).
The review of defense counsel's representation is highly deferential and presumes that counsel's actions fell within a wide range of reasonable professional assistance. Tong v. State, 25 S.W.3d 707, 712 (Tex.Cr.App.2000), cert. den=d, 532 U.S. 1053 (2001). When the record is silent on the motivations underlying counsel's tactical decisions, appellant usually cannot overcome the strong presumption that counsel's conduct was reasonable. See Thompson v. State, supra at 813. In order to defeat Strickland's presumption of reasonable professional assistance, "any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness." Thompson v. State, supra at 814 (quoting McFarland v. State, 928 S.W.2d 482, 500 (Tex.Cr.App.1996), cert. den=d, 519 U.S. 1119 (1997)). In the majority of cases, the record on direct appeal is undeveloped and cannot adequately reflect the motives behind trial counsel's actions. Thompson v. State, supra at 813-14.
Appellant cites two instances in the record wherein he alleges that trial counsel failed to preserve error regarding evidentiary objections. Each instance involved a situation where the trial court sustained trial counsel=s initial hearsay objection to the admission of evidence without trial counsel pursuing an additional adverse ruling by requesting an instruction to disregard and/or seeking a mistrial. Three steps are necessary to preserve error as to an adverse trial court ruling regarding evidence admitted or placed before the jury: a specific, timely objection; a request for an instruction to disregard; and a motion for mistrial. See Fuller v. State, 827 S.W.2d 919, 926 (Tex.Cr.App.1992). To preserve error, the specific objection must be pressed to the point of obtaining an adverse ruling, whether that is a ruling on the objection, the request that the jury be instructed to disregard the evidence, or the motion for mistrial. See Fuller v. State, supra at 926.
As was the case in Thompson, the record before us is silent as to why appellant's trial counsel failed to request an instruction to disregard or seek a mistrial. Appellant has, therefore, failed to rebut the presumption that his trial counsel=s decisions were reasonable. An appellate court should be especially hesitant to declare counsel ineffective based upon isolated alleged miscalculations occurring during what amounts to be otherwise satisfactory representation, especially when the record provides no discernible explanation of the motivation behind counsel's actions--whether those actions were of strategic design or the result of negligent conduct. Thompson v. State, supra at 814. Moreover, it is not ineffective assistance when an attorney does not preserve an error that is not reversible. See Vaughn v. State, 888 S.W.2d 62, 74 (Tex.App. B Houston [1st Dist.] 1994), aff=d, 931 S.W.2d 564 (Tex.Cr.App.1996). Generally, an instruction to disregard is sufficient to cure error when inadmissible evidence is placed before the jury. See Barney v. State, 698 S.W.2d 114, 125 (Tex.Cr.App.1985). Appellant=s second point of error is overruled.
The judgment of the trial court is affirmed.
TERRY McCALL
August 29, 2002 JUSTICE
Do not publish. See TEX.R.APP.P. 47.3(b).
Panel consists of: Arnot, C.J., and
Wright, J., and McCall, J.