ALBERT DAVID BARRERA v. THE STATE OF TEXAS

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Court of Appeals of Texas, Dallas.

ALBERT DAVID BARRERA, Appellant v. THE STATE OF TEXAS, Appellee

No. 05-08-00730-CR

Decided: January 21, 2010

Before Justices Bridges, Lang, and Lang-Miers

OPINION

Opinion By Justice Lang

Following a plea of not guilty, appellant Albert David Barrera was convicted by jury of aggravated sexual assault of a child younger than fourteen years of age.   Punishment was assessed by the jury at forty-five years' confinement.   On appeal, appellant raises four issues:  (1) the trial court erred in admitting testimony from the complainant's teacher concerning the complainant's reputation for truthfulness;  (2) the trial court erred in admitting expert testimony concerning the complainant's reputation for truthfulness;  (3) appellant did not receive effective assistance of counsel;  and (4) the trial court erred by admitting extraneous offense testimony that appellant engaged in vulgar behavior towards the complainant's mother.   We decide appellant's issues against him.   The trial court's judgment is affirmed.

I. FACTUAL AND PROCEDURAL BACKGROUND

The indictment in this case charged in relevant part that appellant intentionally and knowingly caused the “contact and penetration of the female sexual organ of [A.B.], a child, ․ by an object, to-wit:  the sexual organ, of said defendant.”   At trial, complainant, who was seventeen years old at the time of trial, testified that she “got molested by my grandpa” over a period of years beginning when she was eight years old.   According to the complainant, when she was eight years old, appellant started touching her thigh when they were alone together in his apartment.   Other relatives and friends were nearby, but they were outside of the apartment.   When complainant was ten years old, appellant began touching her breasts while she was in the shower, and he did this about three times.   Complainant testified the last time appellant touched her breasts was when she was eleven years old.   According to complainant, appellant put his “private part” into her “private part” on two different occasions.   When complainant was twelve years old, complainant was watching television in appellant's bedroom when appellant entered the room and took off his clothing.   Complainant testified appellant took off her clothes, got on top of her, and “he would try to put his private part in mine.”   Further, complainant testified she knew his private part was inside her private part “because it hurt.”   A month later, appellant repeated this conduct when complainant was watching television in appellant's bedroom.

Complainant testified she first reported appellant's actions to her friend from school, Jeanette, in December of 2006.   She did not tell Jeanette everything that happened.   A few years later, complainant testified she and her mother were watching a news story about a child sexual assault victim.   Complainant began to cry, and when her mother asked her what was wrong, complainant replied, “It was Grandpa.”   Complainant proceeded to tell her mother that her grandfather had touched her and put his penis in her vagina.   Subsequently, complainant went to a police station and told her story to the police officer.   Complainant also testified she went to counseling for about three months, but terminated the counseling because she was uncomfortable with the counselor.   On cross examination, complainant testified she never told her counselor about the assault by her grandfather.   Also, she stated she had not told her teachers, counselors at school, or others that she came in contact with about the assault.

Dr. Matthew Cox, M.D., a specialist in pediatric medicine and child abuse, was called to testify by the State.   According to Dr. Cox, the physical examination of an alleged sexually abused child was not likely to leave any observable damage to the organs of the child.   He further testified he had never performed any sexual assault exam on complainant.   The State's next witness, Hayley Haglund, was complainant's eighth grade English teacher and cheerleading coach.   She testified complainant had a good reputation for truthfulness.   The defense counsel did not object to this testimony.

Next, the State called complainant's mother, S.B., who is appellant's daughter.   During direct examination, she testified complainant first told her about appellant's conduct in July of 2006.   When complainant's father heard the facts, he called the police.   A few days later, complainant was interviewed by the Irving Police department outside the presence of her mother.   During cross examination, defense counsel asked S.B. about her relationship with her mother, appellant's wife.   S.B. replied that her mother refused to speak with her because appellant had “brainwashed” her, and she knew this because when she tried to approach her, her mother “cussed her out.”   Defense counsel continued to question S.B. regarding the fact that S.B. had not attempted to contact her mother.   On re-direct examination, S.B. testified it was both her mother and her father, appellant, who had cursed at her.

During S.B.'s testimony, the trial court removed the jury from the courtroom and held a hearing regarding the admissibility of evidence of extraneous conduct of appellant.   During the hearing, S.B. testified about a particular instance when she approached her mother in a public place, appellant grabbed his crotch and repeatedly told her to “suck his dick”;  her mother called her a bitch and said she wished S.B. were dead.   Counsel for appellant argued this testimony was inadmissible because (1) the defense did not “open the door” to this extraneous evidence and (2) it was more prejudicial than probative.   The trial court overruled the objections and allowed the evidence.   The trial court ruled that when defense counsel asked S.B. about her relationship with her mother and did not object to S.B.'s testimony that she had been cursed at, counsel opened the door to testimony regarding the incident.   The trial court admitted the evidence to show the appellant's state of mind.

The State's next witness, Nikolle Soctior, knew the complainant fairly well while she was in sixth and seventh grade and was her cheerleading sponsor.   She testified complainant had a reputation in the school community for truthfulness.   There was no objection by the defense counsel to this testimony.

The State's next witness was Randall Johnson, a detective in the crimes against persons division of the Irving Police Department, who interviewed the complainant in July of 2006.   Detective Johnson testified that during the interview, the complainant told him about the incidents with her grandfather, but stated that complainant told him she had sexual intercourse with her grandfather five to ten times.   Detective Johnson used diagrams of a girl and boy to assist complainant in describing the incidents.

Cindy Alexander, the clinical director of the Dallas Children's Advocacy Center, testified about the many different reasons that an “outcry” statement from a child may be delayed and a process called “grooming” where minor acts of molestation lead up to the act of penetration.   Ms. Alexander further testified that the child's memory fades with time and the child may not remember “peripheral events,” like what day the events happened.   On cross examination, Ms. Alexander admitted she had seen cases where the children had been coached to create fictionalized sexual abuse.

After the State rested its case, the defense presented two witnesses, Margarita Barrera, the wife of appellant, and George Barrera, the son of appellant and the uncle of complainant.   Margarita testified that she and appellant often babysat their grandchildren, always at the same time.   She clarified there were never times when appellant had an opportunity to be alone with complainant.   George testified he had a good relationship with complainant during her childhood.   Four months before trial, George met with complainant at her work place, a Carnival store.   He had never seen inappropriate contact between appellant and complainant.

The jury found appellant guilty.   During the punishment phase of trial, S.B. testified that appellant was physically abusive to her during childhood, and she remembered one occasion when he threw her mother out of a window.   The defense called Joe Carriyo, the stepbrother of appellant, who testified appellant was good with his kids and grandchildren.   George Barrera testified to the good character of his father and asked the jury to place him on probation.

Following the jury's assessment of punishment at forty-five years' confinement and appellant's sentencing, appellant filed this appeal.

II. ADMISSIBILITY OF THE TESTIMONY CONCERNING REPUTATION

In his first issue, appellant argues the court abused its discretion by permitting two of the State's witnesses, Hayley Haglund and Nikolle Soctior, to testify concerning the complainant's reputation for truthfulness.   In his second issue, appellant argues the court abused its discretion when it “permitted the State's expert witnesses [Dr. Matthew Cox and Cindy Alexander] to testify concerning the complainant's reputation for truthfulness, where such character trait had not been attacked or impeached in violation of Rules 608 and 702 of the Texas Rules of Evidence.”   According to appellant, the testimony of the two teachers regarding the complainant's reputation for truthfulness did not fall under Texas Rule of Evidence 608 because the complainant's credibility had not been attacked.   Appellant further argues that the State's expert witnesses improperly testified as to the complainant's reputation for truthfulness, in violation of Rules 608 and 702 of the Texas Rules of Evidence.   The State responds appellant has not preserved his arguments for appellate review.

To preserve an issue for appellate review, a party is required to show:  (1) a timely and specific request, objection, or motion bringing the issue to the trial court's attention;  and (2) the trial court ruled on the party's request, objection, or motion, or the trial court refused to rule and the party objected to that refusal.  Tex.R.App. P. 33.1(a);  Haley v. State, 173 S.W.3d 510, 516 (Tex.Crim.App.2005);  Geuder v. State, 115 S.W.3d 11, 13 (Tex.Crim.App.2003).

The record shows that all four of these witnesses testified without any objection from the defense.   Accordingly, appellant failed to preserve any complaint on appeal as to the admissibility of this evidence.   See Tex.R.App. P. 33.1(a).   Issues one and two are decided against appellant.

III. INEFFECTIVE ASSISTANCE OF COUNSEL

In his third issue, appellant contends his counsel was ineffective for “failing to object to the introduction of the bolstering evidence complained of in Points of Error 1 and 2.” The State responds there was no reversible error or prejudice because “failure to object to evidence that is admissible is not ineffective assistance of counsel.”

A. Standard of Review and Applicable Law

The Sixth Amendment to the United States Constitution provides that “[i]n all criminal prosecutions, the accused shall enjoy the right ․ to have the Assistance of Counsel for his defence.”   U.S. Const.   Amend.  VI. The Sixth Amendment guarantees not just the right to counsel, but the right to the reasonably effective assistance of counsel.  Strickland v. Washington, 466 U.S. 668, 685-86, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984);  Monreal v. State, 947 S.W.2d 559, 564 (Tex.Crim.App.1997).   To prevail on a claim of ineffective assistance of counsel, the appellant must show the following:  (1) counsel's performance fell well below an objective standard of reasonableness;  and (2) a reasonable probability exists that, but for counsel's errors, the result would have been different.  Strickland, 466 U.S. at 687-88;  Andrews v. State, 159 S.W.3d 98, 101 (Tex.Crim.App.2005).   An appellant has the burden of proving ineffective assistance of counsel by a preponderance of the evidence.   Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App.1999).   The Strickland standard applies in both guilt/innocence and punishment phases of a trial.   Hernandez v. State, 988 S.W.2d 770, 772 73 (Tex.Crim.App.1999).

An appellate court ordinarily will not declare trial counsel ineffective where there is no record showing counsel had an opportunity to explain himself.   See Goodspeed v. State, 187 S.W.3d 390, 392 (Tex.Crim.App.2005).   With regard to allegations of deficient performance, “trial counsel should ordinarily be afforded an opportunity to explain his actions before being denounced as ineffective.”  Id. (citing Rylander v. State, 101 S.W.3d 107, 111 (Tex.Crim.App.2003)).  “Absent such an opportunity, an appellate court should not find deficient performance unless the challenged conduct was ‘so outrageous that no competent attorney would have engaged in it.’ ”  Id. An appellate court should not try to second-guess trial counsel's tactical decisions that do not fall below the objective standard of reasonableness.  Young v. State, 991 S.W.2d 835, 837 (Tex. Crim App.1999) (en banc).   Although a single egregious error by trial counsel may be sufficient to constitute ineffective assistance, such an error must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness.  Thompson, 9 S.W.3d at 814.   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.  Mallett v. State, 65 S.W.3d 59, 63 (Tex.Crim.App.2001).

B. Application of Law to Facts

Appellant contends his trial counsel was deficient for failing to object to the testimony complained about in Issues 1 and 2. Appellant specifically argues trial counsel fell well below the standards of reasonableness expected of a professionally competent defense counsel when he failed to object at any point during the testimony of two lay witnesses and two expert witnesses who were called for the “sole purpose of bolstering the complainant's credibility.”   Appellant did not file a motion for new trial.   The record is silent as to whether or not there was a strategic reason counsel may have had for failing to object to the testimony.   We defer to the strong presumption that counsel's actions fell within the wide range of reasonable professional assistance.   See Mallett, 65 S.W.3d at 63.   Because the record is silent on the motivations underlying counsel's tactical decisions, appellant cannot overcome the strong presumption that counsel's conduct was reasonable.   We resolve his third issue against him.

IV. ADMISSION OF EXTRANEOUS OFFENSE EVIDENCE

In his fourth issue on appeal, appellant contends the trial court abused its discretion in admitting, over his objection, testimony that appellant had made an obscene suggestion to his daughter, the complainant's mother, while he grabbed his crotch and thus “unfairly putting the defendant's character in question.”   Appellant also contends the prejudicial effect of the testimony outweighed its probative value.

A. Standard of Review

We review a trial court's decision to admit or exclude evidence for an abuse of discretion.  Shuffield v. State, 189 S.W.3d 782, 793 (Tex.Crim.App.2006).   Accordingly, an appellate court reviews a trial court's ruling on extraneous offense evidence for an abuse of discretion.  Page v. State, 137 S.W.3d 75, 78 (Tex.Crim.App.2004).   The trial court abuses its discretion only when its decision lies “outside the zone of reasonable disagreement.”  Walters v. State, 247 S.W.3d 204, 217 (Tex.Crim.App.2007);  Weatherred v. State, 15 S.W.3d 540, 542 (Tex.Crim.App.2000).   The trial court's ruling must be upheld if it is reasonably supported by the record and correct under any applicable theory of law.   See Willover v. State, 70 S.W.3d 841, 845 (Tex.Crim.App.2002).   An appellate court shall give deference to a trial court when it decides not to exclude the extraneous offense evidence and finds that the probative value of that evidence is not outweighed by the danger of unfair prejudice.  Moses v. State, 105 S.W.3d 622, 627 (Tex.Crim.App.2003).

B. Applicable Law

An extraneous offense is any act of misconduct that is not alleged in the charging instrument and is shown to have been committed by the accused.   Hernandez v. State, 817 S.W.2d 744, 746 (Tex.App.-Houston [1st Dist.] 1991, no pet.).   Under rule 404(b) of the Texas Rules of Evidence, evidence of a defendant's prior misconduct is not admissible to prove the character of the person in order to show that he acted in conformity therewith.  Tex.R. Evid. 404(b).  However, the evidence may be admissible for other purposes such as proof of motive, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.   See id.;  Montgomery v. State, 810 S.W.2d 372, 387-88 (Tex.Crim.App.1991).   The list contained in rule 404(b) is neither mutually exclusive nor collectively exhaustive.  Montgomery, 810 S.W.2d at 388.

Rule 403 of the Texas Rules of Evidence provides:

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.

Tex.R. Evid. 403.  Rule 403 favors admissibility of relevant evidence.   Montgomery, 810 S.W.2d at 389.   Relevant evidence is presumed more probative than prejudicial.  Id. In examining a claim that evidence should be excluded under rule 403, courts balance the following factors:  (1) the strength of the evidence to make a fact of consequence more or less probable;  (2) the potential of the evidence to impress the jury in some irrational, but indelible way;  (3) the time required to develop the evidence;  and (4) the proponent's need for the evidence.  Id. at 389-90;  see also Wheeler v. State, 67 S.W.3d 879, 888 (Tex.Crim.App.2002);  Lane v. State, 933 S.W.2d 504, 520 (Tex.Crim.App.1996).

A non-constitutional error that does not affect substantial rights must be disregarded.  Tex.R.App. P. 44.2(b).  A substantial right is affected when the error had a substantial and injurious effect or influence in determining the jury's verdict.   King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App.1997) (citing Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 1253, 90 L.Ed. 1557 (1946)).   Substantial rights are not affected by the erroneous admission of evidence “if the appellate court, after examining the record as a whole, has fair assurance that the error did not influence the jury, or had but a slight effect.”  Solomon v. State, 49 S.W.3d 356, 365 (Tex.Crim.App.2001).   In assessing the likelihood that the jury's decision was adversely affected by the error, an appellate court should consider everything in the record, including any testimony or physical evidence admitted for the jury's consideration, the nature of the evidence supporting the verdict, the character of the error, and how the error might be considered in connection with other evidence in the case.  Motilla v. State, 78 S.W.3d 352, 357-58 (Tex.Crim.App.2002) (citing Morales v. State, 32 S.W.3d 862, 867 (Tex.Crim.App.2000)).

C. Application of Law to Facts

Appellant contends the trial court erred by “admitting over the objection of defense counsel evidence o[f] unrelated and non-criminal extraneous conduct” under rule 404(b) of the Texas Rules of Evidence.   In addition, appellant cites rule 403 of the Texas Rules of Evidence and asserts, “The testimony of the witness, improperly admitted, serves only to inflame the passions of the jury against the defendant, and does not advance the case of the state on any issue relevant to the indictment in this case.”

During the cross examination of S.B., mother of the complainant, a hearing outside the presence of the jury was held regarding the admissibility of the extraneous offense:

[State]:  [S.B.], the time that you were cussed out by your mom and dad, I asked you what did your dad say to you?

[Witness]:  Excuse my language but he told me to suck his dick.

[State]:  And did he do anything when-

[Witness]:  He grabbed, he grabbed himself in the crotch and told me to suck his dick, and he said it repeatedly.

[State]:  Okay. And is that part of the reason that you felt you were no longer able to speak to your mom and broke off contact with them?

[Witness]:  That's correct.

Defense counsel objected that this testimony should be excluded because he had not “opened the door” to the evidence and because the prejudicial effect outweighed any probative value.   The court overruled both objections.   The trial court stated he allowed the testimony about the altercation between appellant and his daughter to show the state of mind of appellant.

Assuming, without deciding the trial court erred in the admission of the testimony, we conclude admission of the evidence was harmless.   According to appellant, harm is demonstrated by two considerations.   First, the evidence could only show that appellant is of such a “vulgar character that he would commit these acts in a public place ․” Second, appellant asserts the evidence “serves only to inflame the passions of the jury against the defendant, and does not advance the case of the state on any issue relevant to the indictment in this case.”   However, our review of the record shows other evidence of appellant's actions was before the jury.   The complainant testified to years of sexual abuse she suffered at the hands of appellant, her grandfather.   S.B. testified regarding her daughter's outcry to her that her grandfather had sexually abused her.   Morever, complainant's classmate testified that complainant told her that her grandfather had abused her.   Finally, Detective Randall Johnson testified that during his interview with complainant, complainant told him about having sexual intercourse with her grandfather.   In light of the more detailed, first-hand testimony of the complainant, S.B.'s testimony regarding appellant's behavior towards her did not influence the jury or had but a slight effect.   See Solomon, 49 S.W.3d at 365.   Accordingly, in light of the entire record, we cannot agree the alleged error had a substantial and injurious effect or influence in determining the jury's verdict.   See King, 953 S.W.2d at 271.   Appellant's fourth issue is decided against him.

IV. CONCLUSION

We decide appellant's four issues against him.   The trial court's judgment is affirmed.

DOUGLAS S. LANG JUSTICE

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