Dionicio Carbajal v. State

Opinion

                             NUMBER 13-04-00429-CR

                         COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI B EDINBURG

DIONICIO CARBAJAL,                                                                     Appellant,

                                                             v.

THE STATE OF TEXAS,                                                                    Appellee.

On appeal from the 36th District Court of San Patricio County, Texas.

                       MEMORANDUM OPINION

    Before Chief Justice Valdez and Justices Hinojosa and Rodriguez

                         Memorandum Opinion by Justice Hinojosa

A jury found appellant, Dionicio Carbajal, guilty of two counts of indecency with a child,^[1] three counts of aggravated sexual assault of a child,^[2] one count of sexual assault of a child,^[3] and one count of sexual assault.^[4]  The jury assessed his punishment at twenty years= imprisonment for each count of indecency with a child, ninety-nine years= imprisonment for each count of aggravated sexual assault of a child, twenty years= imprisonment for the sexual assault of a child count, and twenty years= imprisonment for the sexual assault count.  The trial court has certified that this is not a plea-bargain case, and the appellant has the right of appeal.  See Tex. R. App. P. 25.2(a)(2).  In two points of error, appellant contends (1) the evidence is factually insufficient to support his conviction for the offenses of indecency with a child, aggravated sexual assault of a child, sexual assault of a child, and sexual assault, and (2) he received ineffective assistance of counsel.  We affirm. 

The issues of law presented by this case are well settled and the parties are familiar with the facts.  Therefore, we will not recite the law and facts in this opinion except as necessary to advise the parties of the Court=s decision and the basic reasons for it.  See Tex. R. App. P. 47.4.

A.  Factual Sufficiency

In his first issue, appellant contends the evidence is factually insufficient to support his conviction for the offenses of indecency with a child, aggravated sexual assault of a child, sexual assault of a child, and sexual assault.  Specifically, appellant asserts that an audiotape of a telephone conversation between appellant and the victim is insufficient to corroborate the victim=s testimony and overcome inconsistencies in the testimonial evidence presented. 

The standard of review for a challenge to the factual sufficiency of evidence is well settled.  See Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000); Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997).  

We first note that because the alleged sexual offenses occurred when the victim was a person seventeen years of age or younger, corroboration of her testimony was not necessary to support appellant=s convictions under chapter 21, section 22.011, or section 22.021 of the penal code.  See Tex. Code Crim. Proc. Ann. art. 38.07(a), (b)(1) (Vernon 2005).  Furthermore, the testimony of a sexual assault victim alone is sufficient evidence to support a conviction.  Villanueva v. State, 703 S.W.2d 244, 245 (Tex. App.BCorpus Christi 1985, no pet.); see also Garcia v. State, 563 S.W.2d 925, 928 (Tex. Crim. App. [Panel Op.] 1978). This is true even where the victim is a child.  Villanueva, 703 S.W.2d at 245 (citing Gonzalez v. State, 647 S.W.2d 369, 371 (Tex. App.BCorpus Christi 1983, pet. ref'd)).  Because no evidence was necessary to corroborate the victim=s testimony, it is unnecessary to determine whether the corroborating evidence presented was insufficient.

In addition, while evidence presented at trial may offer conflicting accounts, the introduction of conflicting evidence is not enough to render the evidence insufficient as a whole.  State v. Turro, 867 S.W.2d 43, 47 (Tex. Crim. App. 1993).  It is within the province of the jury, as fact-finder, to judge the weight and credibility to be accorded witness testimony, and we must defer to the jury's determination concerning what weight to give contradictory testimonial evidence.  Johnson, 23 S.W.3d at 8-9 (citing Jones v. State, 944 S.W.2d 642, 648-49 (Tex. Crim. App. 1996)).  We assume the fact finder resolved any conflicts in the evidence in favor of the verdict and must defer to that resolution.  Turro, 867 S.W.2d at 47 (citing Matson v. State, 819 S.W.2d 839, 846 (Tex. Crim. App. 1991)). The jury Acan choose to believe all, some, or none of the testimony presented by the parties.@  Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991).  Consequently, our review of the sufficiency of the evidence does not turn upon an evaluation of any one piece of evidence.

            After reviewing all of the evidence in a neutral light, we conclude that the evidence in favor of the verdict is not so weak, nor the conflicting evidence so strong, as to make the verdict against the great weight and preponderance of the evidence.  Therefore, we conclude the evidence is factually sufficient to support appellant=s conviction for the offenses of indecency with a child, aggravated sexual assault of a child, sexual assault of a child, and sexual assault.  See Johnson, 23 S.W.3d at 11; Malik, 953 S.W.2d at 240.  Appellant=s first issue is overruled.

B.  Ineffective Assistance of Counsel

In his second issue, appellant asserts he received ineffective assistance of counsel at trial because trial counsel (1) did not file any pre-trial motions, (2) during voir dire did not object to certain questions asked by the State and did not reiterate statements made by the court about the Apresumption of innocence,@ (3) did not include the discussion with the judge regarding the admission of the audiotape in the record, (4) did not object to the testimony of the State=s Aoutcry@ witness as hearsay evidence, (5) called a community supervision officer in charge of supervising sex offenders as a witness during the punishment phase of the trial, and (6) did not file a motion for new trial. 

The standard of review for a claim of ineffective assistance of counsel is well established.  See Strickland v. Washington, 466 U.S. 668, 687 (1984); Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999); Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994).

In the absence of affirmative evidence contained in the record, we presume trial counsel=s actions were strategically motivated and that counsel's conduct fell within the wide range of reasonable professional assistance.  Strickland, 466 U.S. at 689; Thompson, 9 S.W.3d at 814; Jackson, 877 S.W.2d at 771.  We will not conclude that the conduct was deficient unless the conduct was so outrageous that no competent attorney would have engaged in it. Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001).

The record in this case does not show trial counsel=s reasoning behind the challenged conduct.  Because appellant's complaint that he received ineffective assistance of counsel is not firmly founded in the record, and the record does not affirmatively demonstrate the alleged ineffectiveness, we cannot say that trial counsel's performance failed to constitute reasonably effective assistance by falling below an objective standard of reasonableness.^[5]  Appellant=s second issue is overruled.

The judgment of the trial court is affirmed.   

FEDERICO G. HINOJOSA

Justice

Do not publish.  See Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and filed this

the 30th day of August, 2005.

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^[1] See Tex. Pen Code Ann. ' 21.11 (Vernon 2003).

^[2] See Tex. Pen Code Ann. ' 22.021 (Vernon Supp. 2004-05).

^[3] See Tex. Pen Code Ann. ' 22.011 (Vernon Supp. 2004-05).

^[4] See Tex. Pen Code Ann. ' 22.011(b)(2) (Vernon Supp. 2004-05).

^[5] Appellant is not foreclosed from presenting his claim via collateral attack by virtue of an application for post‑conviction writ of habeas corpus. Ex parte Nailor, 149 S.W.3d 125, 130‑31 (Tex. Crim. App. 2004).