Jose David Gutierrez v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: January 11, 2022
• Docket: 05-19-00560-CR
• Status: Published

Opinion

AFFIRMED and Opinion Filed January 11, 2022

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-19-00560-CR

JOSE DAVID GUTIERREZ, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the Criminal District Court No. 1 Dallas County, Texas Trial Court Cause No. F-1623201-H

MEMORANDUM OPINION Before Justices Molberg, Goldstein, and Smith Opinion by Justice Goldstein Jose David Gutierrez appeals his continuous sexual abuse of a young child

conviction. A jury convicted Gutierrez and sentenced him to sixty-five years’

confinement. In three issues, Gutierrez argues the evidence is insufficient to support

his conviction, he received ineffective assistance of counsel, and the statute that

makes persons convicted of continuous sexual abuse of a young child ineligible for

parole is unconstitutional. We affirm the trial court’s judgment.

BACKGROUND

In March 2016, Gutierrez was charged by indictment with continuous sexual

assault of a young child. The indictment alleged Gutierrez intentionally and knowingly, during a period that was 30 days or more in duration, committed two or

more acts of sexual abuse against M.C., a child younger than 14 years of age, by

contacting M.C.’s female sexual organ with his sexual organ and his finger.

At trial in April 2019, M.C. testified she was taken away from her biological

parents when she was “about five” and went to live with her aunt, Santos Bonilla,

who was married to Gutierrez. M.C. testified that, when she was in “pre-K,”

Gutierrez called M.C. into a room, took off M.C.’s pants and underwear, took off

his pants and underwear, and put his penis inside her vagina. Gutierrez told M.C.

not to say anything about the assault or her “brother was going to pay the

consequences.”

For “about half a year,” M.C. lived with her parents again, but she returned to

live with Bonilla and Gutierrez and “[n]othing happened for awhile.” When M.C.

was in third grade, Gutierrez began to “rub his part on [her] part” over their clothes

approximately “three times a month” for about six months. “Something changed,”

and Gutierrez began calling M.C. to his room where he would remain clothed but

took M.C.’s pants and underwear off and put his fingers in her vagina. Gutierrez

“stopped doing it for awhile,” and M.C. entered fourth grade. During “half a year

in fourth grade,” nothing else happened, but then Gutierrez began taking off his

clothes and M.C.’s clothes and putting his penis in M.C.’s vagina. M.C. testified

these assaults happened “three times a month.”

–2– When M.C. was in fifth grade, she told Bonilla about the abuse. Bonilla went

to talk to Gutierrez, and M.C. “heard they were arguing.” After that, Bonilla came

to M.C. and “told [M.C.] to not say nothing at school, to not talk about it, because

she said that she needed help paying the bills and all that, and she didn’t want anyone

to know about it.”

About a month later, M.C. was taking a math test at school, and she “had this

issue that [she] was always going to the restroom.” M.C.’s teacher, Marilen Mendez,

noticed this and sent M.C. to the nurse. The nurse discovered that M.C. had a high

temperature and told M.C. she had to go back home. M.C. “insisted to stay at

school.”

Mendez approached Nicole Alvarez, the assistant principal, with her concern

that M.C. was going to the restroom “every few minutes,” and Alvarez learned that

M.C. “freaked out a little bit” when she was told her uncle, Gutierrez, was coming

to pick her up. A group from the Child Advocacy Center had recently conducted

training at the school to help identify signs that “something may be going on at

home,” and this training was “very fresh in our minds.” Alvarez had M.C. come to

her office along with Mendez and Coleen Douger, a Garland police officer stationed

at the school. M.C. was “petrified” and crying, and Alverez had Douger lead the

questioning. In the training, Alvarez learned not to “probe” and to be “very

objective” in questioning children about what was going on and let them be the ones

to explain what was happening. M.C. said her uncle made her uncomfortable

–3– because he touched her on the shoulder and on the leg and “whisper[ed] things in

her ear.” When asked how her uncle touched her, Mendez testified, M.C. put her

right hand “on her upper thigh and going towards her private parts.” Alvarez had

Mendez make a referral to Child Protective Services.

The next day, Alvarez called M.C. out of class to speak with a CPS

investigator. M.C. did not know that the person was a CPS investigator. M.C.

testified that, in response to the investigator’s questions about what was going on at

home, she “lied because [she] was scared.” M.C. clarified that, when she said she

lied to CPS, she meant that she did not tell the investigator what her uncle was doing

to her. After speaking with the investigator, M.C. returned to class. Later that day,

Alvarez spoke with M.C. and asked her if M.C. “had said the truth, and if there was

something else [she] needed to say.” Alvarez said the investigator was about to

leave, and if there was anything else M.C. needed to say, she needed to “say it right

now.” M.C. “got scared” because she was not telling the truth but she “wanted to

say the truth.” M.C. was afraid that, if she said something, “a lot of things were

going to be changed,” and she was afraid that “he was going to do something to me.”

However, when M.C. saw that Alvarez was “actually worried” about her, M.C. told

Alvarez “the truth.” M.C. said “someone had touched her,” and her “uncle violated

[her].” M.C. said “he touched her private parts.” M.C. said she did not “tell the lady

that [she] spoke to from CPS,” and she “hadn’t been honest” and “was afraid.” M.C.

then went with Alvarez to the CPS investigator and “told her.”

–4– Garland police detective DeWayne Lewis testified that he and another

detective were called to the school following M.C.’s outcry and transported her to

the Dallas Children’s Advocacy Center (DCAC) for a forensic interview. Jesse

Gonzalez, the director of forensic services at DCAC, interviewed M.C., who said

Gutierrez had been sexually abusing her beginning when she was five years old and

continuing until she was ten. During the interview, M.C. described in detail multiple

incidents in which Gutierrez sexually abused her. M.C. said that, during the

incidents of abuse, Gutierrez told her Bonilla would not love her, would not forgive

her, and would kick her out of the house.

After the interview, M.C. and her brother stayed “three months or four

months” with Gutierrez’ sister and her three children and Gutierrez’ four children.

Bonilla visited “every single day,” and her behavior was “aggressive and mean.”

Bonilla asked M.C. “why did [she] tell” and why did she “say to the teachers what

was going on when nothing was going on.” M.C. testified the other children were

also “mean” to her, and the oldest girl said she was going to kill M.C.

After living with Gutierrez’ sister, M.C. and her younger brother moved in

with their older brother and his wife. Bonilla continued to visit and told M.C. to

“take everything back” or Bonilla and M.C.’s cousins were going to hate her.

Approximately two months after her initial interview with M.C., Gonzalez

conducted a second interview when M.C. recanted her allegations against Gutierrez.

Gonzalez testified that M.C. seemed confused at first about the reason she was there

–5– for a second interview. Gonzalez tried to “prompt [M.C.’s] memory” as to whether

M.C. had told someone “she had lied about her uncle.” M.C. said her “mom and

dad” told her to “say those lies about her uncle,” and her father had shown her

pornographic videos. M.C. said “that’s how she was able to give [Gonzalez]

information in the first interview.” When Gonzalez asked M.C. to describe the

videos in detail, M.C. was only able to indicate that “it was a man and woman having

sex, but no details after that.” Gonzalez testified that M.C. “was very detailed and

gave a lot of information” in her first interview, but she was “very vague” when

“exploring certain aspects” in the second interview. Gonzalez did not believe the

reasons M.C. gave for making up the allegations of abuse were “sufficient to have

given her the information she needed to have said all of those things in her first

interview.” Gonzalez testified that, in her professional opinion, M.C.’s recantation

was “very weak and vague” and M.C. “just kind of seemed confused.”

Anna Guzman testified she was M.C.’s therapist from June 2016 to December

2016 at the Dallas Children’s Advocacy Center. Guzman testified that, during the

course of M.C.’s therapy, M.C. said she was told that if she talked about the abuse

no one would believe her, people made fun of her, and no one would love her. M.C.

struggled with “the aftermath about talking about the abuse, worrying about her

cousins and her family and what that does to a family.” Guzman testified that,

throughout her therapy, M.C. was “always affirming the abuse by her uncle.”

Guzman testified she was aware that M.C. had recanted at some point, but she was

–6– not surprised about the recantation. Guzman explained that “[a] lot of children who

don’t feel that they have caregivers who are believing or supportive or that children

that have been threatened that they’re not going to be believed and that no one will

love them, will want to take it back.” Guzman testified that “disclosure is a process,

meaning it doesn’t happen just during one single time,” and “[r]ecantation is part of

the disclosure process.” When asked what M.C.’s recantation meant, Guzman

answered:

To me, what that tells me is there were a lot of stressors that the child goes through that would want them -- that would cross their mind about taking something back. So that they, perhaps, felt unsupported. They felt not believed. They felt that it was better to take it back for their safety, their stability, than to say the sexual abuse happened, in that moment.

Guzman testified she did not discuss with M.C. the “specifics of why she may have

recanted.”

In his defense, Gutierrez called Dr. William Lee Carter, a licensed

psychologist. Carter testified he reviewed the forensic interviews, police records,

and summaries of the “interviews of all parties involved and the collection of

evidence.” Carter also reviewed CPS records, medical records, advocacy center

records, and counseling records. Carter testified that “to say that a recantation is a

part of the disclosure process is an overstatement.” Carter testified “the recantation

needs to be considered separate and apart from the totality of the disclosure

statement.” Carter characterized M.C.’s recantation as “more than just a simple

recant” and a “very big problem.” Carter acknowledged that M.C. came back to –7– saying her accusations of sexual abuse were true after her recantation, but he testified

it would be “interesting” to know “what the child says now about her statements in

each of those interviews and where she lands when she makes that ultimate

statement.” Carter testified he did not interview M.C. or Gutierrez, and he was not

present at trial when M.C. testified; however, Carter was “familiar with what her

testimony was.” At the conclusion of the evidence, the jury found Gutierrez guilty

of continuous sexual abuse of a child. This appeal followed.

DISCUSSION

In his first issue, Gutierrez argues the evidence is insufficient to prove the

elements of continuous sexual assault of a child. Specifically, Gutierrez asserts that

M.C.’s “recantation impeached her accusation to the point that no rational jury could

have found the elements of the crime beyond a reasonable doubt.”

A person commits the offense of continuous sexual abuse of a child if, during

a period that is thirty or more days in duration, he commits two or more acts of sexual

abuse and, at the time of the commission of each act, he is seventeen years of age or

older and the victim is a child younger than fourteen. TEX. PENAL CODE ANN. §

21.02(b).

In determining the sufficiency of the evidence, the reviewing court considers

the evidence in the light most favorable to the verdict to determine whether any

rational trier of fact could have found the essential elements of the offense beyond a

reasonable doubt. Acosta v. State, 429 S.W.3d 621, 624–25 (Tex. Crim. App. 2014).

–8– The jury is the sole judge of the credibility and weight to attach to witness testimony.

Jackson v. Virginia, 443 U.S. 307, 319 (1979). The testimony of a child victim alone

is sufficient to support a conviction for continuous sexual abuse of a child. See TEX.

CODE CRIM. PROC. ANN. art. 38.07(a); Garner v. State, 523 S.W.3d 266, 271 (Tex.

App.—Dallas 2017, no pet.).

In Owens v. State, 381 S.W.3d 696, 709 (Tex. App.—Texarkana 2012, no

pet.), the defendant was charged with sexually assaulting his four-year-old daughter.

The court addressed the complaining witness’ recantation, juxtaposing offered

reasons for that recantation and context for when the recanting statement was

initially made and certain conflicting court testimony with her final testimony

making clear that the abuse did in fact occur. Id. The court concluded the fact that

a witness makes contradictory or inconsistent statements does not destroy his or her

testimony as a matter of law. Id. (citing McDonald v. State, 462 S.W.2d 40, 41 (Tex.

Crim. App. 1970)). Here, because reasons and context for the recantation were

proffered, in conjunction with clear, detailed trial testimony of the abuse, M.C.’s

recantation does not render the evidence insufficient to support Gutierrez’

conviction. See id.

Gutierrez cites Bocanegra v. State, 519 S.W.3d 190 (Tex. App.—Fort Worth

2017, pet. ref’d) to support his argument that the testimony of a victim, standing

alone, will not always suffice to support a conviction. In Bocanegra, the alleged

victim, four years old at the time of the events giving rise to the aggravated sexual

–9– assault charge and seven years old at the time of trial, could not remember at the

time of trial any of the events relating to the charge of aggravated sexual assault. Id.

at 197. In her testimony at trial, the alleged victim “provided no evidence at all”

regarding the allegations of sexual assault. Id. at 208. In the absence of testimony

from the alleged victim, the State relied on a purported outcry statement she made

to a nurse examiner. Id. at 200–02. Thus, Bocanegra is inapposite as M.C. presented

detailed testimony establishing Gutierrez committed the charged offense. We

conclude M.C.’s trial testimony was sufficient to establish Gutierrez committed the

offense of continuous sexual assault of a child. See Garner, 523 S.W.3d at 271. We

overrule Gutierrez’ first issue.

In his second issue, Gutierrez argues he received ineffective assistance of

counsel for failing to object to hearsay statements from multiple adult witnesses,

other than the designated outcry witness, concerning what M.C. told them about the

abuse.

To prove a claim of ineffective assistance of counsel, Gutierrez must show

that (1) his trial counsel’s performance fell below an objective standard of

reasonableness and (2) there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.

Strickland v. Washington, 466 U.S. 668, 687–88 (1984); Lopez v. State, 343 S.W.3d

137, 142 (Tex. Crim. App. 2011). “A reasonable probability is a probability

sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694. In

–10– reviewing counsel’s performance, we look to the totality of the representation to

determine the effectiveness of counsel, indulging a strong presumption that

counsel’s performance falls within the wide range of reasonable professional

assistance or trial strategy. See Robertson v. State, 187 S.W.3d 475, 482–83 (Tex.

Crim. App. 2006).

Appellant has the burden to establish both prongs by a preponderance of the

evidence. Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998). “An

appellant’s failure to satisfy one prong of the Strickland test negates a court’s need

to consider the other prong.” Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim.

App. 2009); see also Strickland, 466 U.S. at 697. Generally, a silent record that

provides no explanation for counsel’s actions will not overcome the strong

presumption of reasonable assistance. Goodspeed v. State, 187 S.W.3d 390, 392

(Tex. Crim. App. 2005). In the rare case in which trial counsel’s ineffectiveness is

apparent from the record, an appellate court may address and dispose of the claim

on direct appeal. Lopez, 343 S.W.3d at 143. However, the record must demonstrate

that counsel’s performance fell below an objective standard of reasonableness as a

matter of law and no reasonable trial strategy could justify trial counsel’s acts or

omissions, regardless of counsel’s subjective reasoning. Id.

The record on direct appeal is silent as to trial counsel’s strategy and thus

insufficient to fairly evaluate whether either prong could be satisfied. Gutierrez’

reliance on State v. Johnson, No. 05-19-01133-CR, 2021 WL 21701 (Tex. App—

–11– Dallas Jan. 4, 2021, pet. ref’d) (mem. op., not designated for publication) is

unpersuasive as it involved a case challenging the granting of a motion for new trial,

after hearing and testimony of trial counsel. While Gutierrez filed a motion for new

trial, there were no points of specific error, no hearing, no evidence, and no order. .

Based on this record, we cannot say trial counsel’s performance was “so outrageous

that no competent attorney would have engaged in it.” Goodspeed, 187 S.W.3d at

392. We overrule Gutierrez’ second issue.

In his third issue, Gutierrez argues section 21.02 of the penal code, the

continuous sexual assault statute, “violates U.S. Const. Amend. VIII,” contending

that under government code section 508.145(a), parole is unavailable to persons

serving a sentence under section 21.02. Gutierrez asserts that “the unavailability of

parole for a defendant convicted of a violation of section 21.02 is unconstitutional.”

Gutierrez failed to preserve this issue for appellate review because he did not

raise this complaint in the trial court. See TEX. R. APP. P. 33.1(a). A defendant may

forfeit the right to complain of an alleged constitutional violation, including the right

to be free from cruel and unusual punishment, by failing to object. Rhoades v. State,

934 S.W.2d 113, 120 (Tex. Crim. App. 1996); Castaneda v. State, 135 S.W.3d 719,

723 (Tex. App.—Dallas 2003, no pet.). Appellant did not object when his sentence

was imposed or raise the issue in a motion for new trial.

Moreover, a panel of this Court has already addressed this issue and

determined that the categorical ban on the availability of parole for a person

–12– convicted of continuous sexual abuse of a young child does not violate the Eighth

Amendment. Barroquin-Tabares v. State, No. 05-15-00794-CR, 2016 WL

3144160, at *3 (Tex. App.—Dallas May 31, 2016, no pet.) (mem. op., not designated

for publication). Accordingly, we overrule Gutierrez’ third issue.

We affirm the trial court’s judgment.

/Bonnie Lee Goldstein/ BONNIE LEE GOLDSTEIN JUSTICE

Do Not Publish TEX. R. APP. P. 47.2(b) 190560F.U05

–13– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

JOSE DAVID GUTIERREZ, On Appeal from the Criminal District Appellant Court No. 1, Dallas County, Texas Trial Court Cause No. F-1623201-H. No. 05-19-00560-CR V. Opinion delivered by Justice Goldstein. Justices Molberg and THE STATE OF TEXAS, Appellee Smith participating.

Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered January 11, 2022

–14–