Suarez, Tomas Yanez v. State ( 2004 )

Affirmed and Opinion filed July 27, 2004

Affirmed and Opinion filed July 27, 2004.

In The

Fourteenth Court of Appeals

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NO. 14-03-00441-CR

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TOMAS YANEZ SUAREZ, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 182^nd District Court

Harris County, Texas

Trial Court Cause No. 922,780

O P I N I O N

Appellant, Tomas Yanez Suarez, appeals his conviction for aggravated sexual assault of a child and sentence of fifteen years= confinement in the Institutional Division of the Texas Department of Criminal Justice.  On appeal, appellant contends he received ineffective assistance of counsel by his lawyer=s failure to object (1) in the guilt-innocence phase of the trial to irrelevant victim-impact evidence, and (2) in the punishment phase of the trial to hearsay evidence that appellant is infected with the human immunodeficiency virus (HIV) and might have infected the complainant. We affirm.

The complainant was 15 at the time of trial.  Appellant was the boyfriend of the complainant=s mother, Rosalinda Delacruz, and is the complainant=s uncleCher father=s brother.  Appellant is also the father of Rosalinda=s children, Veronica (age 12), Sonia (age 11), and Tommy Suarez (age 8).  The complainant=s brothers are Alejandro (age 18), Andres (age 17), and Carlos (age 13).  When the complainant was eight years old, she moved with her mother out of appellant=s home.  When the complainant was ten, she lived with her aunt in California.  The complainant returned to Texas in 1999, when she was twelve years old.  Shortly thereafter, the complainant=s mother returned to California, while the complainant and her siblings lived with appellant.

At appellant=s home, the complainant shared a bedroom with Veronica and Sonia; Alejandro, Carlos, and Andres slept in the same room; Tommy slept in appellant=s room.  When the complainant was thirteen, her brothers, Alejandro, Andres, and Carlos, moved to California.  The complainant, Veronica, Sonia, and Tommy remained with appellant.  The complainant was now the oldest child in appellant=s house.  After the complainant=s brothers left, the sleeping arrangements changed.  Tommy started sleeping in the same room as Veronica and Sonia.  The complainant started sleeping in appellant=s room; the complainant would either start out sleeping in appellant=s room, or she would start out sleeping in the same room with Veronica and Sonia and appellant would wake her up and tell her to move into his room.

The complainant testified that the sexual abuse started with appellant kissing her and then touching her.  Appellant told the complainant to take off her clothes.  Appellant would touch her breasts and would then put his finger insider her vagina. 

Appellant treated the complainant differently from Veronica, Sonia, and Tommy in other ways.  Appellant always made the complainant sit in the front seat of the car, while the other children always sat in the backseat.  Appellant bought the complainant birthday presents, but would not buy any birthday presents for the other children.  For example, he bought the complainant red roses on her fourteenth birthday.  Veronica testified that appellant bought more things for the complainant than the other children. 

In August 2001, appellant took the complainant out of school when she was starting the ninth grade.  The complainant stayed home, cleaning the house, doing the dishes, and cooking. The other children did chores when they came home from school.  Appellant would not allow the complainant to go outside or use the phone.  At first, the other children did not know the complainant was not in school, Veronica subsequently found out from a neighbor.

          Veronica testified to three occasions when she saw appellant and the complainant having sex.  Veronica also overheard the complainant telling appellant that she wanted to marry him and she wanted to have his baby, but appellant said her mother would get mad at him.  Veronica heard the complainant say she would pretend her doll was her baby and told appellant to buy baby clothes for her doll.  The complainant testified that appellant said he wanted her to have his child, and when that happened, they would move to another part of the state so that no one would know about it.  The complainant testified that appellant told her she was going to become his wife.

Veronica told some neighbors about what was happening between appellant and the complainant.  One of the neighbors called Children=s Protective Services (ACPS@).  CPS came out to the house and spoke to everyone separately.  Veronica told CPS was what was going on.  The complainant, however, lied to CPS because she was scared and claimed nothing was going on.  Appellant also denied that anything was going on between the complainant and him. The complainant and the other children stayed with a neighbor for a couple of weeks, but then returned to appellant=s house.  CPS came to appellant=s house several more times, but apparently took no other action. 

The complainant was also interviewed by the Children=s Assessment Center (ACAC@).  The complainant told CAC that she was not having a sexual relationship with appellant; instead, she told CAC that when she lived in California, her mother=s boyfriend had abused her and her brother, Andres, had had sex with her. 

The complainant had a friend, Francisco, who lived a few houses down the street from appellant=s house.  The complainant claimed she neither went out with Francisco nor had sexual relations with him.  The complainant testified that Francisco never came in the house and she only talked to him outside.  Francisco visited the complainant by climbing over the back fence.  Appellant found out about Francisco when he saw the complainant with him outside.  Appellant would not allow the complainant to have any friends and she was not supposed to see anyone but him. 

On October 24, 2001, appellant drove the complainant and the other children to California to live with their mother, Rosalinda.  Appellant returned to Texas, while the children stayed with Rosalinda in California until December 2001.  Rosalinda=s mother found out the complainant was calling someone named Francisco in Texas.  Veronica told her mother about the complainant and appellant; the complainant denied Veronica=s claim.  When Rosalinda accused the complainant of having sex with Francisco, she finally admitted that appellant had been having sex with her.  Rosalinda, the complainant, and the other children returned to Baytown. 

After returning to Baytown, Rosalinda called the police.  The complainant told the police and CPS what appellant had been doing to her.  On January 31, 2002, the complainant was examined by the CAC.  The complainant told Deborah Parks of the CAC that appellant had Asexually abused@ her.  The complainant told Parks that appellant started touching her when she was ten, but later testified she was thirteen when the abuse actually started.  The complainant described to Parks, in graphic detail, how appellant progressed from initially touching her breasts to eventually engaging in sexual intercourse and deviate sexual intercourse with her.  The complainant also explained to Parks that appellant would not permit her to attend school because he was afraid she would tell her teachers, and he would shoot her if she told anyone.  The complainant further told Parks the abuse occurred A[f]or 2 years.  Mostly everyday.@  The last sexual contact occurred on October 24, 2001Cthe day appellant drove the children to California.

Dr. Margaret McNeese, the medical director of the CAC, reviewed the complainant=s records.  The medical exam revealed that a portion of the complainant=s hymen was missing, which indicated there had been an injury consistent with sexual activity, having occurred over a period of time.  McNeese stated it was unusual to see an injury of this degree, even among children seen by the CAC. 

Appellant testified in his defense.  He testified that although he did not want the complainant to see Francisco because he was older, she continued to do so.  Appellant testified that he took the complainant out of school because Rosalinda was supposed to come get her, but she never came.  Appellant did not take the other children out of school. Appellant explained that he took the children to California because he was trying to separate the complainant and Francisco.  After he learned the police were looking for him, appellant went to Mexico for about two months.  Appellant claimed he only wanted to visit his mother whom he had not seen in twenty years. He denied ever having sex with the complainant and stated that he has been impotent since 1997.  Appellant=s girlfriend, since December 2001, also testified appellant was impotent.  Appellant=s girlfriend has a prior conviction for theft.

Both the United States and Texas Constitutions guarantee an accused the right to assistance of counsel.  See U.S. Const. amend. VI; Tex. Const. art. I, ' 10; Tex. Code Crim.. Proc. Ann. art. 1.05 (Vernon 1977).  The right necessarily includes the right to reasonably effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984).  The United States Supreme Court has established a two‑prong test to determine whether counsel is ineffective.  Id.  Appellant must first demonstrate his counsel=s performance was deficient and not reasonably effective.  Id. at 688B92.  Thereafter, appellant must demonstrate the deficient performance prejudiced his defense. Id. at 693.  Essentially, appellant must show that his counsel=s representation fell below an objective standard of reasonableness, based on prevailing professional norms, and there is a reasonable probability that, but for his counsel=s unprofessional errors, the result of the proceeding would have been different.  Id.; Valencia v. State, 946 S.W.2d 81, 83 (Tex. Crim. App. 1997).

Judicial scrutiny of counsel=s performance must be highly deferential and we are to indulge the strong presumption that counsel was effective.  Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). We assume counsel=s actions and decisions were reasonably professional and that they were motivated by sound trial strategy.  Id. Moreover, it is appellant=s burden to rebut this presumption, by a preponderance of the evidence, via evidence illustrating why trial counsel did what he did.  Id.  Any allegation of ineffectiveness must be firmly founded in the record and the record must affirmatively demonstrate the alleged ineffectiveness.  McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996).

If appellant proves his counsel=s representation fell below an objective standard of reasonableness, he must still affirmatively prove prejudice as a result of those acts or omissions.  Strickland, 466 U.S. at 693; McFarland, 928 S.W.2d at 500.  Counsel=s errors, even if professionally unreasonable, do not warrant setting the conviction aside if the errors had no effect on the judgment.  Strickland, 466 U.S. at 691.  Appellant must prove that counsel=s errors, judged by the totality of the representation, denied him a fair trial. McFarland, 928 S.W.2d at 500. If appellant fails to make the required showing of either deficient performance or prejudice, his claim fails. Id.

Appellant first complains that his trial counsel was ineffective for failing to object to victim-impact testimony by the complainant during the guilt-innocent phase of the trial because such testimony could only serve to inflame the jury=s passions against him.  The complainant testified that she is having problems due to appellant=s conduct: she is not doing well in school; she is not happy; she requires a high level of care; and she has been diagnosed with depression.

The complainant testified that she attempted suicide on four occasions because she Acan=t handle everything that=s went [sic] on in my life and to me, it=s hard for me to do it, but for me hurting on myself it releases pain that comes out of me.@  In the first suicide attempt, the complainant started Ajabbing@ at a nail sticking out of a wall with her vein.  In her second suicide attempt, she wrapped the cord of a hair dryer around her neck and tied it to a sink.  In her third suicide attempt, the complainant tied a string around her neck and she stopped breathing.  In her fourth suicide attempt, the complainant cut herself with a razor.

          The State contends the evidence concerning the effect of appellant=s repeated sexual assaults of the complainant was admissible to reveal the truth of the fact that the sexual assaults actually took place, that they were committed by someone in a close parental relationship with the complainant, and that they were not otherwise committed by a casual boyfriend. Evidence of a sexual assault victim=s emotional state is not relevant in the guilt-innocence phase of the trial unless the victim=s lack of consent is in dispute because such evidence does not tend to prove guilt.  Brown v. State, 757 S.W.2d 739, 740B41 (Tex. Crim. App. 1988).  The complainant being too young to consent and appellant denying any sexual activity, consent was not at issue and the evidence was not relevant to establish appellant=s guilt.  Id.

          Appellant, however, has failed to show that the results of the proceedings would have been different.  The State suggests that in reaching its verdict the jury more probably utilized the testimony of the complainant and Veronica that appellant repeatedly sexually assaulted the complainant over a long period of time than any evidence of depression.  We agree. The jury heard detailed evidence that appellant sexually assaulted the complainant on a continuous basis starting when she was thirteen years old, treated her differently from the other children, pulled her out of school, and told her he wanted her to be his wife.  See Wilson v. State, 15 S.W.3d 544, 554B55 (Tex. App.CDallas 1999, pet. ref=d) (assuming that trial counsel should have objected to victim-impact testimony during guilt innocence phase of sexual assault trial, record did not show reasonable probability that outcome of trial would have been different where the complainant identified appellant as her assailant, she found towel belonging to appellant in her car, and license plate number she wrote down was similar to that on appellant=s car). Moreover, the prosecutor never referred to the complainant=s emotional trauma or suicide attempts in his jury argument during the guilt-innocence stage of the trial.  Having failed to demonstrate prejudice, appellant=s contention is overruled.

Appellant also claims his attorney rendered ineffective assistance by failing to object to hearsay testimony during the punishment phase of the trial that he had HIV and may have infected the complainant.  Appellant specifically complains of the following exchange between the complainant and the prosecutor:

Q.      Did you ever have to go down to a doctor=s office, you know, besides talking to people about depression and things?

A.      Yes.

Q.      What did you go to the doctor for?

A.      I go to the doctor every three months.

Q.      Okay.

A.      Because they said that Tomas was diagnosed with HIV, so they said in order for me to take care of me I would have to go to the doctors every three months to make sure that I don=t get it.

Q.      So when you go B when you go every three months what do they do?

A.      They take blood from me.

Q.      Okay. 

And to do know what they do with that?

A.      No.

Q.      Okay. 

But you go every three months for that?

A.      Yes.

Q.      Now, do you know if Tomas has HIV?

A.      No.  They said that they had a record when he went to doctors once and that it was found in his system, that he had HIV.

Q.      Do you know what HIV is?

A.      A disease that could kill you. 

Q.      Okay.

How do you feel about all of that, knowing that?

A.      It makes me scared.  The first time I found out I started crying because I didn=t know what to do.

Q.      Okay.

But aside from the fact that C.P.S. is checking you for it, did Tomas ever tell you he had HIV?

A.      No.

Q.      So you are just going for the test, you don=t know for sure, do you?

A.      No.

During cross-examination of the complainant, appellant=s counsel elicited the following testimony:

Q.      Now, nobody has told you for sure that Tomas had HIV, nobody knows that for a fact, do they?

A.      No, but the doctors had tested him.  He had went to a clinic.

Q.      But nobody has told you, not even C.P.S., that he has H B that he has HIV, do they B have they?

A.      No.  But the doctors had told C.P.S. that, and when C.P.S. had told that, they told me and they tell me that I just need to make sure, for my protection, I need to go and keep taking tests.

Q.      I understand that. 

But nobody has told you for sure that he has HIV?

A.      No that I know of.

Article 21.31(a) of the Texas Code of Criminal Procedure excludes from evidence the fact of court-ordered AIDS and HIV testing of the accused, as well as the results, when the evidence is offered by the State.  Harris v. State, 996 S.W.2d 232, 238 (Tex. App.CHouston [14th Dist.] 1999, no pet.).  Article 21.31(a) is not applicable where the fact of AIDS or HIV testing involves the complainant.  Id. & n.1.  Here, there is no evidence that appellant was ordered by the trial court to undergo AIDS or HIV testing.  Thus, article 21.31(a) is not applicable in this case.  See id. (observing there was no evidence article 21.31(a) was invoked because trial court did not order AIDS or HIV testing of defendant).

The admissibility of evidence at the punishment stage of a non-capital felony offense is largely a function of policy rather than relevancy because there are no discrete factual issues to be determined.  Hunter v. State, 799 S.W.2d 356, 359 (Tex. App.CHouston [14th Dist.] 1990, no pet.) (citing Murphy v. State, 777 S.W.2d 44, 63 (Tex. Crim. App. 1988) (plurality op. on reh=g)).  Article 37.07, ' 3(a) of the Texas Code of Criminal Procedure allows the State and the accused to introduce any evidence subject to the Rules of Evidence, A>as to any matter the court deems relevant to sentencing, including the prior criminal record of the defendant, his general reputation and his character.=@  Id. (quoting Tex. Code Crim. Proc. Ann. art. 37.07, ' 3(a) (Vernon 1981)).  Evidence related to the circumstances of the offense or the defendant before or at the time of the offense is admissible at the punishment phase. Id. at 359B60. One such circumstance is the degree of the victim=s injury, including future consequences due to the injury, A>so long as the fact finder may rationally attribute moral culpability to the accused for that injury.=@  Id. at 360 (quoting Miller-El v. State, 782 S.W.2d 892, 896 (Tex. Crim. App. 1990) (en banc)). 

In Hunter, which involved the offense of aggravated sexual assault of a child, the complainant=s grandmother testified during punishment that the appellant had tested positive for the AIDS virus and stated that the complainant would Abe going back . . . to be tested for AIDS.@  Id. at 359.  We concluded whether the accused is infected with AIDS or HIV is a Aviable concern@ at the punishment stage of an aggravated sexual assault trial and such testimony, therefore, is admissible as a circumstance of the offense and may be appropriately considered by the jury Aas a potential >long term effect of the injury.=@  Id. at 360 (quoting Miller-El, 782 S.W.2d at 895).  Thus, we conclude appellant=s trial counsel=s performance was not deficient in failing to object to the complainant=s testimony that he possibly had HIV or that she has to be tested for HIV. 

Moreover, appellant also has not shown prejudice.  Appellant contends the complainant=s testimony was essentially that by periodic testing, she would Alive a nightmare of uncertainty@ and appellant Asubjected her to the significant possibility of a slow and painful death, preceded by an extended period@ of not knowing whether she was infected.  Although appellant acknowledges that his fifteen-year sentence is in the lower range of punishment for a first degree felony, he asserts the testimony was prejudicial because he was eligible for probation.

The prosecutor never mentioned the HIV issue in his closing argument.  Instead the prosecutor told the jury AIt=s not a probation case,@ focusing on the prolonged and repeated abuse, the controlling environment created by appellant, that appellant was hiding the complainant by pulling her out of school, appellant=s manipulative treatment of a thirteen-year-old girl, appellant=s treating the complainant Abetter@ by buying her things in exchange for sex, and appellant=s refusal to take responsibility for his actions.^[1]  Having failed to establish that his trial counsel=s performance during the punishment phase of the trial was either deficient or prejudicial, the appellant=s final issue is overruled. 

Accordingly, the judgment of the trial court is affirmed. 

/s/      J. Harvey Hudson

Justice

Judgment rendered and Opinion filed July 27, 2004.

Panel consists of Justices Yates, Anderson, and Hudson.

Do Not Publish C Tex. R. App. P. 47.2(b).

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^[1]  Appellant testified during the punishment phase of his trial.