Opinion issued October 15, 2020
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-19-00782-CR ——————————— JOSE SALOMECHAVEZ, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 371st District Court1 Tarrant County, Texas Trial Court Case No. 1570446D
1 Pursuant to its docket equalization authority, the Supreme Court of Texas transferred this appeal from the Court of Appeals for the Second District of Texas to this Court. See Misc. Docket No. 19–9091, Transfer of Cases from Courts of Appeals (Tex. Oct. 1, 2019); see also TEX. GOV’T CODE § 73.001 (authorizing transfer of cases). We are unaware of any conflict between precedent of that court and that of this court on any relevant issue. See TEX. R. APP. P. 41.3. MEMORANDUM OPINION
Jose Salome Chavez2 appeals his convictions for continuous sexual abuse of
a child, for which he was sentenced to life imprisonment, and indecency with a child
by contact, for which he was sentenced to 20 years’ imprisonment and a $10,000
fine, respectively. TEX. PENAL CODE §§ 21.02(b), 21.11(a)(1), (c)(1). On appeal, he
contends that the evidence is insufficient to support his convictions, that the trial
court erred in holding punishment proceedings in his absence, and that he received
ineffective assistance of counsel during punishment. We affirm.
Background
Chavez was indicted on one count of continuous sexual abuse of a child, three
counts of aggravated sexual assault of a child, and two counts of indecency by
contact with a child. He pleaded not guilty to each of the six counts and proceeded
to a jury trial.
At trial, A.C. testified that Chavez was her father’s brother, and he lived with
her family from when she was six years old to when she was ten years old. At the
time of trial, he was in his thirties, and she was 16 years old. A.C. testified that the
first time Chavez abused her was when she was six years old. They were alone in
2 The trial court record, including the indictment and judgments, and thus the caption on appeal, refer to the appellant as Jose Salomechavez. Our review of the record indicates that his name is Jose Salome Chavez. We will refer to the appellant as “Chavez” throughout the opinion. 2 his room at her house. She was on his bed, lying on her right side, and he was behind
her facing her back. He told her to be quiet, pulled her pants and underwear down to
her knees, pulled down his pants “to where his penis could come out” and “put his
penis in [her] butt.” He also penetrated her vagina with his penis and ejaculated on
her “butt.”
Several months later, he sexually assaulted her again. They were alone in his
room on the bed, and he put his penis in her vagina. A.C. testified that similar abuse
occurred multiple times while Chavez lived with her and her family.
Chavez continued to abuse A.C. after he moved out of the house and moved
in with his brother, another of A.C.’s uncles. A.C. frequently visited to play with her
younger cousins. The first time it happened at her uncle’s house, A.C. and her
brothers were in Chavez’s room. Chavez turned on a movie for A.C.’s brothers to
watch and told A.C. to get on his bed. While her brothers were on the floor facing
the television and watching the movie, Chavez pulled down A.C.’s pants and
underwear, pulled his own pants down, put his penis in her vagina, and moved
“forwards and backwards.” His hands were holding A.C. firmly around her stomach,
“like a hug.” After he ejaculated on her “butt,” he gave her money.
A.C. testified that Chavez penetrated her vagina more times than she could
remember and that it happened at least five times at her uncle’s house. She testified
that the last time Chavez penetrated her vagina occurred when she was 13 years old.
3 Chavez put his penis in her vagina and was moving “forward and backward” until
she hit him and left the room.
A.C. testified that on another occasion, when she was fourteen years old,
Chavez touched her breast. They were in her parents’ truck, and he “started to chew
on [her] breasts on top of [her] clothes.” He touched mostly her right breast with one
hand.
A.C. testified that Chavez tried to kiss her once and tried to make her touch
his penis. Over the years, he gave her money, in amounts that varied from $5 to
$100. A.C. did not want his money, so she gave it to her siblings.
A.C. eventually told an online friend about what was happening with Chavez,
and the friend encouraged her to tell her parents. After a party at her church, where
she danced with Chavez at her father’s suggestion, she told her parents about the
abuse. Her mother immediately called the police, who came to her house to
investigate. A.C. testified that after she told her parents about the abuse, she became
depressed and considered taking pills to commit suicide. She sought residential and
outpatient mental health treatment.
A.C.’s mother testified that she had been concerned about her daughter’s
mood since she was six years old. At six, A.C. expressed a desire to kill herself so
she could be alone. A.C’s mother took her to a psychologist but did not learn what
was causing her suicidal ideations. Over the years, A.C. remained sad, depressed,
4 and distant. A.C.’s mother testified about the night that A.C. told her about Chavez’s
actions and the impact the abuse had on her daughter.
Sergeant M.D. Lopez of the City of Forest Hills Police Department testified
that he responded to a sexual assault call at A.C.’s house in September 2018. When
he arrived, A.C. told him details of abuse by Chavez that had occurred multiple times
since she was six years old.
Nurse Stacey Henley of Cook Children’s Medical Center testified that she is
a sexual assault nurse examiner, also known as a “SANE” nurse, who examined A.C.
in October 2018. A.C. reported to Henley that she had been abused between 20 and
30 times. Henley noted no injuries to A.C.’s vagina or anus, but she did not expect
to see any injuries due to the passage of time and how quickly those body parts heal.
Alexis Harrison testified that she performed a forensic interview of A.C. in
October 2018. In addition to the details that A.C. testified to regarding Chavez
putting his penis in her vagina and anus, A.C. also told Harrison that Chavez had
licked her vagina with his tongue.
The defense called two witnesses. First, A.C.’s father, who is Chavez’s
brother, testified that his daughter had been sad. He testified that he believed his
daughter’s story.
Chavez testified in his own defense. He maintained that he was innocent.
According to Chavez, while he danced with A.C. at a church party, she asked him
5 for a tablet computer. When he said he would not buy one for her, she became upset.
In response, A.C. threatened that she was going to tell her parents that he was
molesting her. He also testified that he gave cash gifts to all of his nieces and
nephews and that he did so in front of their parents.
The jury found Chavez guilty of two counts in the indictment: continuous
sexual assault of a young child and indecency with a child by contact. Chavez chose
jury sentencing. Neither the State nor Chavez put on additional evidence during the
punishment phase. After each side rested, the court excused the jury so that the
attorneys could finalize the punishment charge. The court recessed for 15 minutes,
and when the parties returned for the charge conference, Chavez was no longer
present. Chavez’s counsel stated that he had no objections to going forward without
his client and advised the court that Chavez had left to take care of a medical issue.
The court held the charge conference, and neither side had objections to the charge.
Chavez was present when the jury returned for instructions and closing
arguments. He was also present when the jury returned its punishment verdict and
when the trial court pronounced the judgment and sentenced him. Pursuant to the
jury’s recommendation, Chavez was sentenced to life imprisonment for continuous
sexual assault of a child and 20 years’ imprisonment and a $10,000 fine for
indecency with a child by contact. He appealed.
6 Sufficiency of the Evidence
In his first issue, Chavez argues that the evidence was insufficient to support
his convictions.3 We disagree.
A. Standard of Review and Applicable Law
We review a challenge to the sufficiency of the evidence under the standard
set forth in Jackson v. Virginia, 443 U.S. 307, 318–20 (1979). See Brooks v. State,
323 S.W.3d 893, 895 (Tex. Crim. App. 2010). Under the Jackson standard, evidence
is insufficient when, considered in the light most favorable to the verdict, no rational
factfinder could have found that each essential element of the charged offense was
proven beyond a reasonable doubt. See Jackson, 443 U.S. at 319; Laster v. State,
275 S.W.3d 512, 517 (Tex. Crim. App. 2009). Legal sufficiency of the evidence is
measured by the elements of the offense as defined by a hypothetically correct jury
charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997).
We consider both direct and circumstantial evidence as well as all reasonable
inferences that may be drawn from the evidence. Clayton v. State, 235 S.W.3d 772,
778 (Tex. Crim. App. 2007). We defer to the jury’s credibility and weight
determinations because the jury is the sole judge of the credibility of witnesses and
the weight to be given their testimony. Brooks, 323 S.W.3d at 899. Jurors may
3 Chavez’s brief states, “The evidence was legally insufficient to sustain Appellant’s conviction.” We evaluate the sufficiency of the evidence for both convictions. 7 choose to believe or disbelieve any part of a witness’s testimony. Gonzalez v. State,
522 S.W.3d 48, 56 (Tex. App.—Houston [1st Dist.] 2017, no pet.). We resolve
inconsistencies in the evidence in favor of the verdict. Curry v. State, 30 S.W.3d
394, 406 (Tex. Crim. App. 2000); see Clayton, 235 S.W.3d at 778 (“When the record
supports conflicting inferences, we presume that the factfinder resolved the conflicts
in favor of the prosecution and therefore defer to that determination.”).
Circumstantial evidence is as probative as direct evidence in establishing
guilt, and circumstantial evidence alone can be sufficient to establish guilt. Clayton,
235 S.W.3d at 778. “Each fact need not point directly and independently to the guilt
of the appellant, as long as the cumulative force of all the incriminating
circumstances is sufficient to support the conviction.” Hooper v. State, 214 S.W.3d
9, 13 (Tex. Crim. App. 2007).
If an appellate court finds the evidence insufficient, it must reverse the
judgment and enter an order of acquittal. Estrella v. State, 546 S.W.3d 789, 797
(Tex. App.—Houston [1st Dist.] 2018, pet. ref’d).
The uncorroborated testimony of either the child or an outcry witness is
sufficient to support a conviction for indecency with a child or sexual assault of a
child. Jones v. State, 428 S.W.3d 163, 169 (Tex. App.—Houston [1st Dist.] 2014,
no pet.) (citing TEX. CODE CRIM. PROC. art. 38.07). The State has no burden to
produce any corroborating or physical evidence. Martines v. State, 371 S.W.3d 232,
8 240 (Tex. App.—Houston [1st Dist.] 2011, no pet.). Courts give wide latitude to
testimony provided by child victims of sexual abuse. Jones, 428 S.W.3d at 169.
A person commits the offense of continuous sexual abuse of a child if the
person commits two or more acts of sexual abuse during a period that is 30 or more
days in duration, against a child victim that is younger than fourteen years of age.
TEX. PENAL CODE § 21.02(b). An “act of sexual abuse” includes an act in which the
person causes the sexual organ of a child or the anus of a child to contact the actor’s
mouth or actor’s sexual organ. Id. §§ 21.02(c)(4); 22.021(a)(1)(B)(iii–iv), (a)(2)(B).
A person commits the offense of indecency with a child by contact by
touching the anus, breast, or any part of the genitals of a child younger than 17 years
of age with the intent to arouse or gratify the sexual desire of any person. TEX. PENAL
CODE § 21.11(a)(1), (c)(1).
B. Analysis
Chavez contends that the evidence is insufficient because A.C.’s testimony
was not credible. Specifically, he contends that she did not make an outcry until
several years after the alleged abuse began. He argues that the abuse is unlikely to
have occurred because there was no evidence of blood in A.C.’s underwear or
bedding, despite her testimony that he penetrated her multiple times. He points out
that the SANE nurse made no objective findings, and he argues that it is improbable
9 that intercourse occurred while A.C.’s brothers watched a movie in the same room.
Finally, he emphasizes his own testimony denying the allegations.
A.C. testified in detail about several instances of sexual abuse from when she
was six years old until she was thirteen years old. She testified that beginning when
she was six years old, Chavez put his penis in her vagina on multiple occasions.
When she was ten years old, Chavez moved in with A.C.’s uncle. When she visited
her cousins at her uncle’s house, Chavez put his penis in her vagina while her
siblings were on the floor of the same room focused on a movie. A.C. also testified
that Chavez grabbed and “chewed” on her breast while she was in her parents’ truck.
The jury heard from a police officer, SANE nurse, and forensic interviewer who
testified that A.C. told each of them similar details of the abuse.
In contrast, Chavez testified that he did not commit any act of sexual abuse
against A.C. He claimed that she made up the allegations because he would not
dance with her a second time at a church party and refused to buy her a tablet
computer. He testified that A.C. told him that she was going to tell her parents that
he had been molesting her if he did not buy her the tablet computer.
As to Chavez’s specific arguments about the evidence, A.C. testified that on
occasion, she had lied, but she was not lying about the abuse. The forensic
interviewer and SANE nurse testified that children are known to lie occasionally,
but neither questioned the veracity of A.C.’s statements. A.C. never testified that the
10 abuse caused her to bleed, but she did testify that the sexual acts hurt her. The SANE
nurse explained to the jury that it was not uncommon for someone who had been
assaulted as many times as A.C. had to have no injuries. Additionally, A.C. denied
that she asked Chavez to buy her a tablet computer. She testified that Chavez gave
her money on multiple occasions and because she did not want it, she gave it to her
siblings. Chavez also testified that he gave his nieces and nephews cash.
According to A.C., Chavez made her feel the abuse was her fault and that her
parents would get mad at her if she said something. Her mother testified that she
noticed changes in A.C., such as being sad, depressed, and distant, but she did not
know what caused the behavior.
We defer to the jury’s credibility determinations and resolve inconsistencies
in the evidence in favor of the verdict. Brooks, 323 S.W.3d at 899; Curry, 30 S.W.3d
at 406. Considering all the evidence in the light most favorable to the verdict, the
evidence was such that any rational trier of fact could have found beyond a
reasonable doubt that Chavez committed the offenses of continuous sexual abuse of
a child and indecency to a child by contact. Laster, 275 S.W.3d at 517.
We overrule Chavez’s first issue.
Absence from the Punishment Charge Conference
In his second issue, Chavez contends that the trial court abused its discretion
by conducting the punishment charge conference in his absence. We disagree.
11 A. Standard of Review
The Confrontation Clause of the Sixth Amendment of the U.S. Constitution
provides that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to
be confronted with the witnesses against him. . . .” U.S. CONST. amend. VI. The
Confrontation Clause protects a defendant’s right to physically face those witnesses
who testify against him as well as his right to conduct cross-examination. Scott v.
State, 555 S.W.3d 116, 125 (Tex. App.—Houston [1st Dist.] 2018, pet. ref’d). The
Court of Criminal Appeals has held that “within the scope of the right of
confrontation is the absolute requirement that a criminal defendant who is threatened
with loss of liberty be physically present at all phases of proceedings against him,
absent a waiver of that right through defendant’s own conduct.” Miller v. State, 692
S.W.2d 88, 90 (Tex. Crim. App. 1985) (internal citations removed) (quoting
Baltierra v. State, 586 S.W.2d 553, 556 (Tex. Crim. App. 1979)). This right is
addressed in article 33.03 of the Code of Criminal Procedure, which provides:
In all prosecutions for felonies, the defendant must be personally present at the trial . . . provided, however, that in all cases, when the defendant voluntarily absents himself after pleading to the indictment or information, or after the jury has been selected when trial is before a jury, the trial may proceed to its conclusion.
TEX. CODE CRIM. PROC. art. 33.03.
When there is information before the trial court to support a conclusion that
the defendant’s absence from the trial is voluntary after a jury has been selected, the
12 trial court may permissibly continue the trial in the defendant’s absence. See Moore
v. State, 670 S.W.2d 259, 261 (Tex. Crim. App. 1984). Thus, a defendant may waive
his Sixth Amendment right to be physically present at trial to confront the witnesses
against him if, after the jury has been selected with him in attendance, he voluntarily
absents himself from the proceedings. See Miller, 692 S.W.2d at 90; see also Taylor
v. United States, 414 U.S. 17, 18–20 (1973) (per curiam) (holding that defendant
waives Sixth Amendment right to be present if, after trial has begun in his presence,
he voluntarily absents himself from proceedings). A trial court’s determination that
a defendant’s absence was voluntary is reviewed for an abuse of discretion. Miller,
692 S.W.2d 88, 91 n.4; Moore, 670 S.W.2d at 261. “The voluntariness of a
defendant’s absence is generally judged in hindsight on appeal and an appellate court
will not disturb the trial court’s findings that a defendant voluntarily absented
himself form the trial court proceedings when the defendant fails to put on any
evidence to refute that determination.” Simon v. State, 554 S.W.3d 257, 265 (Tex.
App.—Houston [14th Dist.] 2018, no pet.) (citing Kline v. State, 737 S.W.2d 895,
900 (Tex. App.—Houston [1st Dist.] 1987, pet. ref’d).
It is undisputed that Chavez was present during voir dire, the presentation of
evidence in the guilt/innocence phase, and the recitation of the jury’s verdicts after
deliberation. Chavez was also present at the beginning of the punishment
13 proceedings. Neither the State nor Chavez presented further evidence or called
witnesses during the punishment hearing. The record indicates that Chavez was
present when each side rested and when the court excused the jury so that the
attorneys could finalize the jury charge for punishment. The court recessed for
fifteen minutes, and when the parties returned for the formal charge conference,
Chavez was no longer present. After the court was informed of Chavez’s absence,
his counsel stated, “I have no objections with going forward without my client being
here. He’s had a medical issue and he’s left, and I think we should proceed.” The
record reflects that Chavez was present again when the jury returned to the
courtroom for the court’s charge and the punishment closing arguments. When
Chavez returned, he did not express any concern to the trial court about his absence
during the charge conference.
Generally, to preserve a complaint for appellate review, the party must make
his complaint to the trial court by timely request, objection, or motion that states the
grounds for the ruling sought with sufficient specificity to make the trial court aware
of the complaint. See TEX. R. APP. P. 33.1(a). Confrontation Clause claims are
subject to this general preservation requirement. Davis v. State, 313 S.W.3d 317,
347 (Tex. Crim. App. 2010). A defendant’s failure to object on Confrontation Clause
grounds at trial waives a Confrontation Clause complaint for appellate review. See
Paredes v. State, 129 S.W.3d 530, 535 (Tex. Crim. App. 2004) (holding that
14 defendant failed to preserve Confrontation Clause complaint for appellate review
when trial objection was solely on hearsay grounds); Scott, 555 S.W.3d at 126.
Defense counsel did not object on any grounds, including the Confrontation
Clause or article 33.03 of the Code of Criminal Procedure, nor did he argue that
Chavez’s absence was possibly involuntary or ask for a continuance. We hold that
Chavez has waived this issue because he failed to preserve this complaint for
appellate review. See TEX. R. APP. P. 33.1(a).
Even if Chavez had preserved this complaint for review, the trial court would
not have abused its discretion by continuing with the punishment charge conference.
Chavez does not contest that he was present at both points of trial required by article
33.03. See TEX. CODE CRIM. PROC. art. 33.03 (court may continue a trial to
conclusion if the defendant was present for jury selection and entering a plea to the
indictment). Chavez was absent only for a brief amount of time during the
punishment conference. His counsel told the court that Chavez had a medical issue
and that the court should continue with the proceeding despite his absence. Moore,
670 S.W.2d at 261 (when there is evidence that defendant’s absence is voluntary,
the trial court may continue trial in defendant’s absence).
Courts have held that a defendant’s absence for medical issues can be
voluntary. See, e.g., Smith v. State, 494 S.W.3d 243, 253–54 (Tex. App.—Texarkana
2015, no pet.) (trial court did not abuse its discretion in proceeding with punishment
15 when defendant was hospitalized after attempt to commit suicide and record did not
suggest that defendant was unable to decline medical treatment and leave the
hospital); Bottom v. State, 860 S.W.2d 266, 267 (Tex. App.—Fort Worth 1993, no
pet.) (no abuse of discretion in finding defendant voluntarily absented himself after
attempted suicide by ingesting Tylenol and being placed in hospital). Chavez’s
counsel did not argue that his client’s medical issue caused his absence to be
involuntary. On this record, the trial court would not have abused its discretion by
finding Chavez’s absence was voluntary and continuing with the proceedings.
Moore, 670 S.W.2d at 261.
Moreover, even if the trial court erred in conducting the hearing in Chavez’s
absence, it was not reversible error. Where the presence of a defendant does not bear
a “reasonably substantial relationship to the opportunity to defend,” no harm results
from his absence from the proceedings against him. Adanandus v. State, 866 S.W.2d
210, 219 (Tex. Crim. App. 1993) (quoting Cooper v. State, 631 S.W.2d 508, 512
(Tex. Crim. App. 1982) overruled on other grounds by Bell v. State, 994 S.W.2d 173
(Tex. Crim. App. 1999)). To assess harm, we must address both harm under the rules
of appellate procedure and whether the hearing bore a substantial relationship to
Chavez’s opportunity to defend himself. TEX. R. APP. P. 44.2(a); Adanandus, 806
S.W.2d at 220.
16 The charge conference involved the discussion of questions of law. As the
Court of Criminal Appeals has observed, “[i]t is difficult to imagine a trial fraught
with complex legal problems when there will not be occasions where counsel and
the court will confer on questions of law at the bench or in chambers outside the
presence of the defendant.” Mares v. State, 571 S.W.2d 303, 307 (Tex. Crim. App.
1978). Both sides had rested before Chavez’s absence. Chavez’s argument that he
was denied the opportunity to present evidence and the right to testify during the
punishment phase is without merit. Even if Chavez had been present, the legal issues
for the trial court to decide would not have changed, and we cannot conclude that
the hearing bore a reasonably substantial relationship to Chavez’s opportunity to
defend. Id. (holding defendant’s presence at charge conference did not bear a
reasonably substantial relationship to the opportunity to defend); see also TEX. R.
APP. P. 44.2(a). Because there is no evidence that harm occurred, even assuming
error in continuing with the proceeding in Chavez’s absence, the error does not
constitute reversible error. See Routier v. State, 112 S.W.3d 554, 577–79 (Tex. Crim.
App. 2003).
Ineffective Assistance of Counsel
In his third issue, Chavez contends that he received ineffective assistance of
counsel because his counsel argued that he would be eligible for parole when parole
is not available for the offense of continuous sexual assault of a child. He asserts that
17 “for defense counsel to make such an argument about parole when parole was not a
possibility is fundamentally unfair and prejudiced Appellant.” We disagree.
A. Standard of Review
To prevail on a claim of ineffective assistance of counsel, the defendant must
show that (1) counsel’s performance was deficient and (2) a reasonable probability
exists that but for counsel’s deficient performance, the result of the proceeding
would have been different. Strickland v. Washington, 466 U.S. 668, 687, 694 (1984).
The defendant bears the burden of proof on both issues, and failure to make either
showing by a preponderance of the evidence will defeat his ineffectiveness claim.
Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). We apply the same
two-prong Strickland standard of review for ineffective assistance of counsel claims
in both the guilt/innocence phase of trial and the punishment phase of trial.
Hernandez v. State, 988 S.W.2d 770, 772 (Tex. Crim. App. 1999).
Under the first Strickland prong, any judicial review of whether counsel’s
performance was deficient must be highly deferential to trial counsel and avoid the
deleterious effects of hindsight. Thompson, 9 S.W.3d at 813. We begin by presuming
that trial counsel performed within professional norms. Id. We do not assume that
counsel lacked a sound reason for making the choices he did; on the contrary, the
defendant must demonstrate that no plausible reason exists for a particular act or
omission. Bone v. State, 77 S.W.3d 828, 836 (Tex. Crim. App. 2002); Toledo v.
18 State, 519 S.W.3d 273, 287 (Tex. App.—Houston [1st Dist.] 2017, pet. ref’d). When
the record is silent as to trial counsel’s strategy, we will not conclude that appellant
received ineffective assistance unless the challenged conduct was “so outrageous
that no competent attorney would have engaged in it.” Goodspeed v. State, 187
S.W.3d 390, 392 (Tex. Crim. App. 2005) (quoting Garcia v. State, 57 S.W.3d 436,
440 (Tex. Crim. App. 2001)). Rarely will the trial record contain sufficient
information to permit a reviewing court to fairly evaluate the merits of such a serious
allegation. See Bone, 77 S.W.3d at 833. In the majority of cases, the appellant is
unable to meet the first prong of the Strickland test because the record is
underdeveloped and does not adequately reflect the alleged failings of trial counsel.
See Mata v. State, 226 S.W.3d 425, 430 (Tex. Crim. App. 2007).
Ineffective assistance of counsel prejudices a criminal defendant if there is a
reasonable probability that, but for counsel’s deficiency, the result of the proceeding
would have been different. Strickland, 466 U.S. at 694. “A reasonable probability is
a probability sufficient to undermine confidence in the outcome.” Id.; Cox v. State,
389 S.W.3d 817, 819 (Tex. Crim. App. 2012). “If it is easier to dispose of an
ineffectiveness claim on the ground of lack of sufficient prejudice, that course should
be followed.” Strickland, U.S. 466 at 697.
19 B. Analysis
In his closing argument, Chavez’s counsel told the jury, “It’s hard for me to
segue from my client is innocent to please be lenient on my client. But [in convicting
Chavez of continuous sexual abuse of a child] you made a decision he will go away
for 25 years and be eligible for parole after 12 and a half at a bare minimum.”
Counsel also asked the jury to consider the fact “that 12 and a half years’ minimum
is a long time” and to consider that Chavez would be approximately 45 years old
when eligible for parole.
Parole was not a possibility for Chavez’s term of confinement for continuous
sexual abuse of a child. See TEX. GOV’T CODE § 508.145(a) (a person serving a
sentence for an offense under section 21.02 of the Penal Code is not eligible for
parole); TEX. PENAL CODE § 21.02 (defining the offense of continuous sexual abuse
of a child). Chavez’s counsel clearly erred in arguing to the jury that his client could
be eligible for parole.
However, even if Chavez’s counsel’s argument during closing was so
outrageous as to be ineffective, the error does not require reversal because Chavez
has failed to meet his burden to establish that he was prejudiced. See Goodspeed,
187 S.W.3d at 392 (quoting Garcia, 57 S.W.3d at 440); see also Strickland, 466 U.S.
at 694. The record reflects that, despite counsel’s error, any possible confusion was
ameliorated by the State’s clarifying argument and the jury charge. The State
20 addressed Chavez’s counsel’s incorrect argument immediately after it occurred.4 In
the first lines of its closing argument on punishment, the State said:
There’s one thing I want to correct before I go forward. And even though you’re not supposed to consider parole law when you are rendering your verdict here for punishment, continuous sexual abuse of a child, now that you found him guilty for that . . . is a sentence that as we talked about in jury selection, that the minimum is 25 years, and it’s 25 years day for day, so there is no parole. So we are starting at 25 years on that offense.
The court also correctly instructed the jury that parole was not an option. The court’s
punishment instruction stated, “With regard to the offense of continuous sexual
abuse of a young child or children, under the law applicable to this case, the
Defendant is ineligible for release on parole.” The charge also instructed the jury not
to discuss how long Chavez would be required to serve any sentence of confinement
they decided to impose as such matters are within the exclusive jurisdiction of the
Board of Pardon and Paroles and the Governor of the State of Texas.
In evaluating jury instructions, both oral and written, juries are “presumed to
follow the trial court’s instructions in the manner presented.” Walker v. State, 300
S.W.3d 836, 850 (Tex. App.—Fort Worth 2009, pet. ref’d) (quoting Kirk v. State,
199 S.W.3d 467, 469 (Tex. App.—Fort Worth 2006, pet. ref’d)); see also Young v.
4 During voir dire, the State also told the veniremen that parole was not an option, explaining that the punishment for continuous sexual abuse of a child is “25 years to life in prison. No probation. No parole. 25 years day for day, up to life.” 21 State, 283 S.W.3d 854, 882 (Tex. Crim. App. 2009) (Cochran, J., concurring) (“We
must, however, ‘presume [ ] that jurors, conscious of the gravity of their tasks, attend
closely the particular language of the trial court’s instruction in criminal cases and
strive to understand, make sense of, and follow the instructions given them.’”)
(quoting Francis v. Franklin, 471 U.S. 307, 324 n.9 (1985)). Courts abandon the
presumption only if there is evidence showing that the jury did not follow the
instructions. Williams v. State, 937 S.W.2d 479, 490 (Tex. Crim. App. 1996). There
is no evidence that the jury did not follow the court’s instruction. Although the jury
sent a note asking a question during deliberations, the question did not involve
parole.5
Chavez has failed to meet his burden under the second Strickland prong to
show that he was prejudiced such that but for counsel’s deficiency the result of the
proceeding would have been different. Strickland, 466 U.S. at 694. We overrule
Chavez’s third issue.
5 The jury asked, “What is more serious, 99 years or life?” and the court responded, with no objections from counsel, “Under the law, I am not permitted to answer your question. Please confine your deliberations to the evidence and the Court’s charge and continue your deliberations.” The jury reached a verdict five minutes later, sentencing Chavez to the maximum sentence for each offense. See Veytovich v. State, No. 02-14-00212-CR, 2016 WL 354291, at *3 (Tex. App.—Fort Worth Jan. 28, 2016, pet. ref’d) (mem. op., not designated for publication) (holding that appellant failed to show prejudice when jury assessed the maximum available punishment for continuous sexual abuse of a child and sexual assault of a child). 22 Conclusion
We affirm the judgment of the trial court.
Peter Kelly Justice
Panel consists of Justices Keyes, Kelly, and Landau.
Do not publish. TEX. R. APP. P. 47.2(b).