RAMON PEREZ DIAZ v. THE STATE OF TEXAS

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Court of Appeals of Texas, Waco.

RAMON PEREZ DIAZ, Appellant v. THE STATE OF TEXAS, Appellee

No. 10-16-00218-CR

Decided: October 04, 2017

Before Chief Justice Gray, Justice Davis, and Justice Scoggins

MEMORANDUM OPINION

In two issues, appellant, Ramon Perez Diaz, challenges his conviction for indecency with a child by contact. See TEX. PENAL CODE ANN. § 21.11 (West 2011). Specifically, Diaz contends that his trial counsel was ineffective and that there is no statutory basis for the imposition of several fees listed in the bill of costs. Because we overrule Diaz's complaint about trial counsel, and because the State concedes that the complained-of fees lack a statutory basis, we affirm as modified.

I. BACKGROUND

Here, Diaz was charged by indictment with one count of indecency with a child by contact for touching the breast of A.P., a child who was younger than seventeen years of age and not the spouse of Diaz, with the intent to arouse or gratify his sexual desire. This case proceeded to trial, and the jury ultimately found Diaz guilty of the charged offense. The jury assessed punishment at fourteen years' incarceration in the Institutional Division of the Texas Department of Criminal Justice with a $2,500 fine. The trial court certified Diaz's right of appeal, and this appeal followed.

II. INEFFECTIVE ASSISTANCE OF COUNSEL

In his first issue, Diaz argues that his trial counsel was ineffective for: (1) eliciting otherwise inadmissible testimony from the State's psychologist-expert that only six to eight percent of children make false sexual-abuse allegations; (2) allowing his only defense witness to testify during the guilt-innocence phase of trial that neither appellant's current alleged victim nor his prior alleged victim were lying; (3) calling his only defense witness to establish that Diaz had more than enough time to commit the offense; and (4) allowing State witnesses to offer testimony that was tantamount to direct comments on the truthfulness of the victim. Based on our review of the record, we cannot say that Diaz has adequately established either prong of Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984).

A. Applicable Law

To prevail on a claim of ineffective assistance of counsel, Diaz must satisfy a two-prong test. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). First, Diaz must show that counsel was so deficit as to deprive him of his Sixth Amendment right to counsel. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. Second, Diaz must show that his counsel's representation was objectively unreasonable. Id.; see Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011). To satisfy the second prong, Diaz must show that there is a “reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Thompson, 9 S.W.3d at 812. A reasonable probability exists if it is enough to undermine the adversarial process and thus the outcome of the trial. See Strickland, 466 U.S. at 694, 104 S. Ct. at 2068, Mallett v. State, 65 S.W.3d 59, 62-63 (Tex. Crim. App. 2001). The appellate court looks to the totality of the representation and the particular circumstances of each case in evaluating the effectiveness of counsel. Thompson, 9 S.W.3d at 813. Our review is highly deferential and presumes that counsel's actions fell within a wide range of reasonable professional assistance. Mallett, 65 S.W.3d at 63; Thompson, 9 S.W.3d at 813.

The right to “reasonably effective assistance of counsel” does not guarantee errorless counsel or counsel whose competency is judged by perfect hindsight. Saylor v. State, 660 S.W.2d 822, 824 (Tex. Crim. App. 1983). “Isolated instances in the record reflecting errors of commission or omission do not cause counsel to become ineffective, nor can ineffective assistance of counsel be established by isolating or separating out one portion of the trial counsel's performance for examination.” Ex parte Welborn, 785 S.W.2d 391, 393 (Tex. Crim. App. 1990). Diaz bears the burden of proving by a preponderance of the evidence that counsel was ineffective, and an allegation of ineffectiveness must be firmly founded in the record. Thompson, 9 S.W.3d at 813.

Trial counsel should ordinarily be afforded an opportunity to explain his actions before being denounced as ineffective. Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003). Specifically, when the record is silent regarding the reasons for counsel's conduct, a finding that counsel was ineffective would require impermissible speculation by the appellate court. Gamble v. State, 916 S.W.2d 92, 93 (Tex. App.—Houston [1st Dist.] 1996, no pet.). Therefore, absent specific explanations for counsel's decisions, a record on direct appeal will rarely contain sufficient information to evaluate an ineffective-assistance claim. See Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). To warrant reversal without affording counsel an opportunity to explain his actions, “the challenged conduct must be ‘so outrageous that no competent attorney would have engaged in it.’ ” Roberts v. State, 220 S.W.3d 521, 533 (Tex. Crim. App. 2007) (quoting Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005)). Here, the record is silent as to trial counsel's strategy; therefore, we will examine the record to determine if trial counsel's conduct was “ ‘so outrageous that no competent attorney would have engaged in it.’ ” Id. (quoting Goodspeed, 187 S.W.3d at 392).

B. Discussion

First, Diaz complains that trial counsel elicited testimony from psychologist Dr. William Lee Carter that studies have shown that six to eight percent of children who make a disclosure about sexual abuse are lying. As noted above, the record is silent about trial counsel's strategy; however, after reading counsel's cross-examination in context, it appears that he was trying to establish that some children lie about sexual abuse and that some defendants are simply not guilty of sexually abusing children. Or in other words, trial counsel's questioning could have imparted to the jury that A.P. fell in the category of the six to eight percent of child victims who make false allegations regarding sexual abuse, and thus, her testimony should not be believed. Regardless, we cannot say that this line of questioning, when considered in context, was so outrageous that no competent attorney would have engaged in it. See id.; see also Goodspeed, 187 S.W.3d at 392.

Next, Diaz contends that trial counsel improperly allowed defense witness Natividad Fajardo to testify that: (1) the child victim and another purported victim were not lying; and (2) he had more than enough time to commit the alleged offense in this case. Once again, the record must be read in context. Fajardo's testimony narrowed the range of time that Diaz could have committed the offense by establishing only a fifteen-minute window that Diaz was alone with A.P. while multiple family members were in the adjacent room, which could have been interpreted as limiting the opportunity that Diaz could have committed the charged offense. Accordingly, we cannot say that this questioning was so outrageous that no competent attorney would have engaged in it. See Roberts, 220 S.W.3d at 533; see also Goodspeed, 187 S.W.3d at 392.

With regard to the testimony about the child victim and another purported victim, Diaz complains about the following exchange between the prosecutor and Fajardo:

Q [The State]: Have you ever talked to [A.P.] about what happened?

A [Fajardo]: No.

Q: Have you ever talked to [M.F.] about what happened to [A.P.]?

A: Maybe one time and that's all.

Q: So what do you think happened between [A.P.] and the defendant?

A: Well, I don't know. I don't know.

Q: But are you telling this jury you didn't believe Ramon because you kicked him out?

A: Yes.

Q: So you believe something happened to [A.P.]?

A: I'm telling you I was not there with her. I was not there with her. And then after that the subject was dropped. My daughters distanced themselves from me.

Q: Do you think [A.P.] is lying about saying this defendant molested her?

A: No.

Q: Because she wouldn't lie about this?

A: No.

Q: And you don't believe [M.F.] is lying about everything that happened to her?

A: Well, no. If [M.F.] is saying that these things happened, they may have, but I didn't see them.

Q: So you also don't remember coming in in your towel and seeing [M.F.] on top of this defendant on your bed?

A: That, I do remember.

Q: So she's not lying about that?

A: Well, no.

Fajardo testified through an interpreter; she had to be instructed to wait to speak until questions were finished; and she was extremely emotional on the stand, to the point that the trial judge had to recess so that she could compose herself. In any event, Fajardo's testimony showed that she was highly emotional about the fact that she no longer had a good relationship with her family because of this incident. And perhaps as a result, Fajardo wanted to believe her daughter and granddaughter's version of the incidents. Nevertheless, Fajardo also emphasized that she was not present during the incident and that she was unsure about what had happened to both A.P. and M.F. Given this, it is plausible that trial counsel did not want to object to draw more attention to Fajardo's testimony about the truthfulness of A.P. and M.F. regarding their allegations of sexual abuse. And because of Fajardo's waffling testimony at this juncture, the jury could have disbelieved her statements about A.P. and M.F.'s truthfulness. Regardless, once again, the record is silent about trial counsel's strategy, and without more, we cannot say that trial counsel's inaction as to this complaint was so outrageous that no competent attorney would have engaged in it. See Roberts, 220 S.W.3d at 533; see also Goodspeed, 187 S.W.3d at 392. And even if it was error to not object to this testimony, we reiterate that isolated instances in the record reflecting errors of omission do not necessarily cause counsel to be ineffective. See Ex parte Welborn, 785 S.W.2d at 393.

And finally, we disagree with Diaz's assertion that the testimony of Dr. Carter and Waco Police Department Detective Anne Cyr bolstered the credibility of A.P. Rather, Dr. Carter and Detective Cyr provided context for the victim's behavior. In particular, Dr. Carter emphasized that his testimony was predicated on understanding “what actually happened, if, indeed, there was something.” He also noted that while he could describe offender minimization, it was ultimately up to the jury to decide “whether or not they think that [Diaz] is telling the truth or not.” A review of Detective Cyr's testimony does not demonstrate that she commented on the truthfulness of A.P. or Diaz. Rather, she merely discussed what she found significant in the course of her investigation. And it is also worth mentioning that when Dr. Carter testified in generalities regarding a child's outcry against a close family member, trial counsel did precisely what Diaz argues he should have done—he objected and received a running objection as to Dr. Carter's testimony that could be construed as bolstering the testimony of prior witnesses.

Based on the foregoing, we conclude that Diaz has not established the first prong of Strickland. See 466 U.S. at 687, 104 S. Ct. at 2064; see also Lopez, 343 S.W.3d at 142. Moreover, even if he had established the first prong of Strickland, we cannot say that Diaz established “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different,” especially given that A.P. testified and the jury, with its guilty verdict, clearly believed A.P.'s version of the events in question. See Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Thompson, 9 S.W.3d at 812; see also Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991) (noting that it is within the province of the factfinder to judge the credibility of the witnesses, meaning the factfinder may believe all, some, or none of the testimony presented by the parties). We therefore overrule Diaz's first issue.

III. COURT COSTS

In his second issue, Diaz contends that several fees included in the bill of costs lack a statutory basis and, thus, should be deleted from the trial court's judgment. Specifically, Diaz challenges the “CCC” fee of $80.00, the “CRIMINAL FILING FEE” of $40.00, the “VCTM45” fee of $45.00, and the “TPSF” fee of $12.50. The State concedes that these fees should not have been assessed and recommends modifying the trial court's judgment.

Only statutorily-authorized court costs may be assessed against a criminal defendant. See Johnson v. State, 423 S.W.3d 385, 389 (Tex. Crim. App. 201 $); see also Sabedra v. State, No. 10-16-00033-CR, 2017 Tex. App. LEXIS 2241, at *5 (Tex. App.—Waco Mar. 15, 2017, no pet.) (mem. op., not designated for publication). As argued by Diaz, there does not appear to be a statutory basis for the “CCC,” “CRIMINAL FILING FEE,” “VCTM45,” and “TPSF” fees. Accordingly, we sustain Diaz's second issue and, therefore, modify the trial court's judgment to delete these fees. Or, in other words, we modify the trial court's judgment to reduce the amount of assessed court costs by $177.50—the cumulative total of the challenged fees.

IV. CONCLUSION

Based on the foregoing, we modify the trial court's judgment to delete the “CCC,” “CRIMINAL FILING FEE, “VCTM45,” and “TPSF” fees. This results in the reduction in the amount of the assessed court costs by $177.50. We affirm the trial court's judgment as modified.

Affirmed as modified

[CR25]

AL SCOGGINS Justice