George Urbina v. State

• Court: Court of Appeals of Texas
• Decided: December 11, 2008
• Docket: 01-07-00442-CR
• Status: Published

Opinion

Opinion issued December11, 2008

In The

Court of Appeals

For The

First District of Texas

NO. 01-07-00442-CR

GEORGE URBINA, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 10th District Court

Galveston County, Texas

Trial Court Cause No. 05CR1488

MEMORANDUM OPINION

A jury convicted appellant, George Urbina, of indecency with a child by contact. ⁽¹⁾ The trial court found an enhancement paragraph true and assessed punishment at confinement for seven years with credit for 17 days already served. In his sole point of error, appellant contends that his trial counsel was ineffective in failing to object to the introduction of extraneous offenses.

We affirm.

Background

The complainant, appellant's daughter, accused appellant of reaching under her shirt and bra and feeling her breasts. At trial, the complainant testified that she was helping to babysit her brothers at a family member's home when appellant came to pick up the complainant and her brothers at four in the morning. She testified that appellant appeared intoxicated. As appellant drove them home, the complainant's brother was crying on the floor of the truck, and the complainant was trying to help appellant keep the truck in one lane. When they got home, the complainant went to sleep and did not wake up until later in the day when appellant tried to wake her. Appellant first tried to wake the complainant by telling her to get up, but eventually appellant went into her room and lay down in the bed with her. The complainant was lying on her side, and appellant was next to her, facing her back. Appellant put his arm around her and put his hand under her shirt and bra and touched her breast. The complainant pushed his hand away and appellant tried to put his hand in her pants, but she rolled off the bed and went to take a shower. When the complainant got out of the shower, she called her mom to tell her what happened. The complainant's mother, Mary Diaz de Leon, testified that she asked the complainant's aunt, who was closer to appellant's home, to pick up the complainant. The aunt testified that the complainant seemed very upset and unusually quiet on the ride to her house. Diaz de Leon picked up the complainant from her aunt's house and took her home, where they talked about what happened and decided to call the police.

De Leon also testified about the complainant's relationship with appellant. She testified that appellant was the complainant's father, but that, even though he knew of the complainant's existence before her birth, appellant was not involved in the complainant's life until the complainant was ten years old. In the five years prior to the incident, the complainant and appellant had formed a good relationship, and the complainant had even lived with appellant at various times.

Appellant's trial counsel neither objected to the testimony about appellant's relationship with the complainant nor to the complainant's testimony that appellant drove her and her brothers home while appellant was apparently intoxicated. Appellant did not file a motion for a new trial to determine the strategy of the trial counsel.

Standard of Review

We evaluate the effectiveness of counsel under the two-pronged test enunciated in Strickland v. Washington, 466 U.S. 668, 690, 104 S. Ct. 2052, 2066 (1984); Hernandez v. State, 988 S.W.2d 770, 772 (Tex. Crim. App. 1999). First, appellant must show that his trial counsel's representation fell below an objective standard of reasonableness. Strickland, 466 U.S. at 688, 104 S. Ct. at 2064. To prove this deficiency in representation, the defendant must demonstrate that his counsel's performance deviated from prevailing professional norms. Id. at 688, 104 S. Ct. at 2065; McFarland v. State, 845 S.W.2d 824, 842-43 (Tex. Crim. App. 1992). Second, the defendant must show prejudice. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. The failure to satisfy one prong of the Strickland test negates a court's need to consider the other. Id. at 697, 104 S. Ct. at 2069.

Appellant bears the burden of proving by a preponderance of the evidence that his counsel was ineffective. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). Appellant must prove, by a preponderance of the evidence, that there is no plausible professional reason for a specific act or omission. Bone v. State, 77 S.W.3d 828, 836 (Tex. Crim. App. 2002). Appellant must overcome the presumption that his trial counsel's strategy was sound and must affirmatively demonstrate the alleged ineffective assistance of counsel. Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003); Thompson, 9 S.W.3d at 814. We cannot speculate beyond the record provided; rather, a reviewing court must presume that the actions were taken as part of a strategic plan for representing the client. Rylander, 101 S.W.3d at 110-1. Furthermore, when an ineffective assistance claim alleges that counsel was deficient in failing to object to the admission of evidence, the defendant must show as part of his claim that the evidence was inadmissible. Ortiz v. State, 93 S.W.3d 79, 93 (Tex. Crim. App. 2002)Analysis

Appellant contends that his trial counsel was ineffective for failing to object to testimony that he was not involved in the complainant's life until she was ten years old and that he had driven while intoxicated with the complainant and her siblings in the truck. Appellant argues that this testimony was of inadmissible extraneous offenses and that his trial counsel's failure to object was extremely harmful and cannot be construed as part of any trial strategy.

Extraneous Offense Evidence

An extraneous offense is any act of misconduct, whether resulting in prosecution or not, that is not shown in the charging papers. Rankin v. State, 953 S.W.2d 740, 741 (Tex. Crim. App. 1995). In general, extraneous offense evidence is inadmissible "to prove the character of a person in order to show action in conformity therewith." See Tex. R. Evid. 404(b); Batiste v. State, 217 S.W.3d 74, 84 (Tex. App.--Houston [1st Dist.] 2006, no pet.). However, for crimes against children, including indecency with a child, the Texas Code of Criminal Procedure provides:

[E]vidence of other crimes, wrongs, or acts committed by the defendant against the child who is the victim of the alleged offense shall be admitted for its bearing on relevant matters, including:

(1) the state of mind of the defendant and the child; and

(2) the previous and subsequent relationship between the defendant and the child.

Tex. Code Crim. Proc. Ann art. 38.37, § 2 (Vernon Supp. 2008). Article 38.37 of the Texas Code of Criminal Procedure also provides that it "does not limit the admissibility of evidence of extraneous crimes, wrongs, or acts under any other applicable law." See id. art. 38.37, § 4.

Abandonment of a Child

Appellant has failed to show that the testimony that he did not have any relationship with the complainant until she was ten years old was inadmissible. See Ortiz, 93 S.W.3d at 93. He argues that the testimony regarding his lack of a relationship with the complainant until she was ten years old was evidence of abandonment of a child. Assuming appellant's actions in not pursuing a relationship with the complainant did constitute an extraneous wrong or act, it was still properly admissible because it was relevant to the previous relationship between appellant and the complainant. See Tex Code Crim. Proc. Ann art. 38.37, § 2.

Driving While Intoxicated with a Child Passenger

Appellant has failed to show that his trial counsel's failure to object to the complainant's testimony that appellant drove his children home while he was intoxicated was the result of ineffective assistance. See Thompson, 9 S.W.3d at 814; Ortiz, 93 S.W.3d at 93. The trial court could have chosen to allow the testimony as relevant to appellant's and to the complainant's state of mind at the time the complainant was touched by appellant. See Tex Code Crim. Proc. Ann art. 38.37, § 2. Furthermore, even if the evidence of driving while intoxicated was not admissible, appellant has failed to show that his trial counsel did not have a valid strategy in failing to object to that evidence. See Thompson, 9 S.W.3d at 814 (holding that deficient performance is not shown when record provided no references to explain why counsel failed to object to attempts to elicit inadmissible testimony).

Appellant has failed to overcome the presumption that his trial counsel's strategy was sound. See Rylander, 101 S.W.3d at 110. Because appellant has failed to establish the first prong of the Strickland test, we do not need to examine the second prong. Strickland, 466 U.S. at 697, 104 S. Ct. at 2069.

We overrule appellant's sole point of error.

Conclusion

We affirm the judgment of the trial court.

Evelyn V. Keyes

Justice

Panel consists of Justices Taft, Keyes, and Alcala.

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

1.

See Tex. Penal Code Ann. § 21.11 (Vernon 2003).