Francisco Perez Arcos v. State

Opinion issued July 7, 2011.

In The

Court of

Appeals

For The

First District

of Texas

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NOS. 01-10-00342-CR

01-10-00343-CR

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Francisco Arcos , Appellant

V.

The State of

Texas , Appellee

On Appeal from the 263rd District Court

Harris County, Texas

Trial Court Case Nos. 1,175,636 & 1,175,637

MEMORANDUM OPINION

A

jury convicted Francisco Arcos of two felony offenses of aggravated sexual

assault of a child. The jury assessed punishment at 50 years’ confinement for

each offense, to run concurrently. In

two points of error, appellant contends that (1) the trial court erred in

permitting more than one outcry witness, and (2) he was denied effective

assistance of counsel because trial counsel failed to object to inadmissible

hearsay testimony. We affirm.

BACKGROUND

Appellant

is the father of the complainant, and was married to Zurisadai Cabanas, the

complainant’s mother, at the time of the assault. Cabanas testified that the

night of September 14, 2007, appellant returned home from work after drinking

with a co-worker to find his wife and daughters watching television in one of

the home’s bedrooms. After greeting his family, appellant and his oldest

daughter, A.A. — then six years old — watched television away from the family in the

living room. A few minutes later, appellant and A.A. went into the master

bedroom and shut the door.

Cabanas

became suspicious when she stopped hearing the two from inside the bedroom. Discovering

the door was locked, Cabanas fetched pruning scissors to pry open the door. When

she entered the room, she found appellant naked, face-up on the bed, with an

erection. A.A’s arm and hand were draped over him. A.A. was also naked except

for a t-shirt. Cabanas called the police and told A.A. to get dressed. While

this was occurring, appellant stood up and put on some boxers. When Cabanas asked

what he had been doing with A.A., appellant said nothing except that he would

wait for the police on the bed.

Officer

Michael Santos was the first to arrive. Officer Santos testified he found

appellant still lying on the bed, seemingly asleep. Officer Santos doubted appellant

was asleep because of the general level of noise and activity in the small

house. After being awakened, appellant sat up and acted confused about the

police presence. Officer Santos handcuffed appellant, helped him dress, and

placed him in the back of the police car.

After

he detained appellant, Officer Santos talked to A.A. about what happened in the

bedroom. A.A. said the appellant just tickled her at first, but then proceeded

to kiss her and remove her clothing. He placed his hand on her vagina, penetrated

her with his fingers, and performed oral sex on her. This continued until

appellant heard Cabanas trying to open the door.

Following

the interview, Cabanas and A.A. were taken by ambulance to a nearby emergency

room, where A.A. was examined by Donna Layton, a forensic nurse. Layton was

also trained as a sexual assault examination nurse.

Layton’s

examination revealed small tears in A.A.’s hymen, as well as general irritation,

redness, and swelling inside her vagina. Layton testified this was consistent

with a sexual assault. Layton also interviewed A.A. about what happened and who

might have abused her. During the course of the interview, A.A. said her father

had touched her vagina and performed oral sex on her.

Before

trial, the State sought to designate Officer Santos, A.A.’s mother Zurisadai

Cabanas, and Nurse Layton as outcry witnesses to permit them to testify at

trial about what A.A. told them without violating the court’s prohibitions

against hearsay. After hearing each party’s arguments, the trial court determined

the State could only classify one person as the outcry witness. The State

designated Officer Santos.

During

a trial recess, the State again argued the mother and Nurse Layton should be

designated as outcry witnesses. Counsel for appellant repeated his objections. After reviewing the

cases, the trial judge affirmed that only Officer Santos could be the outcry

witness. Appellant’s counsel asked the court to restrict the testimony of the State’s

witnesses based on the decision. The trial judge agreed.

[Defense Counsel]: For the record, Judge, can she

restrict her witnesses to any—your ruling now with regards to any testimony

with regards to the notice that she sent me as to outcry from each of these

witnesses[?]

[Trial Court]: Sure.

However, the court

suggested Nurse Layton’s testimony might fit within the hearsay exception for

statements made for the purpose of a medical diagnosis. This would permit

Layton to recount A.A.’s statements even though she was not classified as an

outcry witness.

The

next day, during the direct examination of Nurse Layton, the State asked her

about A.A.’s comments:

[Prosecutor]: In fact, can

you do your job without knowing what happened to the child?

[Layton]: I could but it

wouldn’t be as accurate as needed.

[Prosecutor]: What did the

child tell you the reason [sic] she was there?

. . . .

[Defense Counsel]: I will

object. Never mind. Withdraw my question.

[Layton]: Through the

interpreter she stated, my daddy kissed me on my [vagina] and touched it with

his hand.

HEARSAY

“ Hearsay ” is a statement ,

other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove

the truth of the matter asserted. Tex. R. Evid. 801(d) . Hearsay is inadmissible except as provided by

statute or rules prescribed pursuant to statutory authority. Tex. R. Evid .

802. One statutory exception is Article 38.072 of the Texas Code of Criminal

Procedure. See Tex. Code Crim. Proc. Ann. art. 38.072 ( Vernon 2005). Article 38.072

permits an adult to give hearsay testimony at trial recounting a child victim’s

statements about her sexual assault if the testimony meets the statutory

provisions listed in 38.072. Id. For

example, only the first adult to whom the child reveals details about the

assault may be considered an outcry witness, with some exceptions. See id. at § 2 (a)(2). As both parties acknowledge, Officer

Santos was properly designated an outcry witness by the trial court.

In his first point of error, appellant

argues that because Nurse Layton could not be an outcry witness, her testimony

recounting A.A.’s statement revealing the nature of the abuse and identity of

her abuser should have been excluded as hearsay. Appellant further contends

that without Layton’s statement, the jury would not have found appellant

guilty.

In

response, the State argues the appellant waived any error because he failed to

object and preserve the error for appellate review. The State notes that while

counsel for appellant initially objected, he subsequently withdrew the

objection.

Preservation of Error

In order to preserve error

for appellate review, an appellant must make a proper and specific objection

and receive an adverse ruling on that objection. Tex. R. App. P. 33.1; see Diaz v. State, 125 S.W.3d 739, 743 (Tex. App.—Houston

[1st Dist.] 2003, pet. ref’d) . Texas law generally

requires a party to continue objecting each time inadmissible evidence is

offered. Ethington v. State, 819 S.W.2d 854, 858 (Tex. Crim.

App. 1991) ; Thierry v. State ,

288 S.W.3d 80, 88 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d). Error is waived if the same evidence comes

in elsewhere without objection. Hudson v. State, 675 S.W.2d

507, 511 (Tex. Crim. App. 1984); Duncan

v. State , 95 S.W.3d 669, 672 (Tex. App.—Houston [1st Dist.] 2002, pet.

ref’d).

In this case, appellant’s counsel

sought to limit the testimony of the State’s witnesses based on the trial

court’s decision limiting the prosecutor to one outcry witness. However, if

Nurse Layton’s testimony was inadmissible hearsay, as appellant now argues, he had

the burden to preserve the error through a proper objection. While he made an

initial objection, the error is not preserved for appellate review if the

objection is subsequently withdrawn. See Salazar

v. State , 38 S.W.3d 141 , 148 n.3 (Tex. Crim. App. 2001). The record must

show that the complaining party gave the trial court an opportunity to rule on

the complaint by presenting that complaint to the trial court in a specific and

timely objection. See Tex. R. App. P. 33.1(a); Geuder v. State, 115

S.W.3d 11, 13 (Tex. Crim. App.2003); Martinez v. State, 98 S.W.3d 189,

193 (Tex. Crim. App. 2003); Lankston v. State, 827 S.W.2d 907, 909

(Tex. Crim. App. 1992). Because the appellant withdrew his objection and never

gave the court a chance to consider whether Layton’s testimony was hearsay, he cannot

raise it now. We overrule appellant’s first point of error.

Ineffective Assistance of Counsel

In his second

point of error, appellant contends that his trial counsel rendered ineffective

assistance when, during the

punishment phase, his trial counsel failed to make a hearsay objection to Donna

Layton’s testimony about A.A.’s statements regarding why she went to the

hospital, failed to request a jury instruction to disregard Layton’s

statements, and failed to move for a mistrial because of Layton’s statements.

Standard of Review

To

prevail on a claim of ineffective

assistance of counsel , an appellant must satisfy the

standard set forth in Strickland v. Washington, 466 U.S. 668, 687 , 104

S. Ct. 2052, 2064 (1984). First, an appellant must prove by a preponderance of

the evidence that counsel’s performance fell below an objective standard of

reasonableness. See id. at 687–88, 104 S. Ct. at 2064 ; Ex parte

Ellis, 233 S.W.3d 324, 330 (Tex. Crim. App. 2007). Second, an appellant

must show that counsel’s deficient performance prejudiced or harmed his

defense. Strickland, 466 U.S. at 687 , 104 S. Ct. at 2064 . This requires

a showing that counsel’s errors undermined the confidence in the result from trial.

Ex parte Ellis, 233 S.W.3d at 330 ; Jaenicke v. State, 109 S.W.3d

793, 797 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d). An appellant bears

the burden of overcoming the “strong presumption that counsel’s conduct fell

within the wide range of reasonable professional assistance.” Ex parte

Ellis, 233 S.W.3d at 330 (quoting Thompson v. State, 9 S.W.3d 808,

813 (Tex. Crim. App. 1999)).

The Court of Criminal

Appeals has stated that appellate courts should not find counsel ineffective

unless the counsel’s performance 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). Thus, any alleged ineffectiveness must be founded and demonstrated

in the record. Thompson, 9 S.W.3d at 813–14. As a result, “the record on

direct appeal is in almost all cases inadequate to show that counsel’s conduct

fell below an objectively reasonable standard of performance.” Andrews v.

State, 159 S.W.3d 98, 102 (Tex. Crim. App. 2005); see also Bone v.

State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002) (“[R]arely will the trial

record contain sufficient information to permit a reviewing court to fairly

evaluate the merits of such a serious allegation.”).

Analysis

Here, there was no motion for a new trial and

there is nothing in the record that explains why counsel failed to object or

request a preliminary hearing regarding the admissibility of Nurse Layton’s

testimony. This Court has held that when the record is silent, the court will

not speculate about trial counsel’s strategy or reasoning to find counsel

ineffective. See Gamble v. State, 916 S.W.2d 92, 93 (Tex. App.—Houston [1st

Dist.] 1996, no pet.).

A failure to

make an objection does not automatically demonstrate ineffective assistance of

counsel. Ryan v. State , 937 S.W.2d 93,103 (Tex. App.— Beaumont 1996,

pet. ref’d), see also Ingham v. State , 679 S.W.2d 503, 509 (Tex. Crim.

App. 1984) (en banc) (“ An isolated failure to

object to certain procedural mistakes or improper evidence does not constitute

ineffective assistance of counsel.”); Garcia-Sandoval v. State , No. 01-08-00842-CR, 2010 WL

1571207 , at *3 (Tex. App.—Houston [1st Dist.] Apr. 8, 2010, no pet.) (mem. op.,

not designated for publication) (“ Mere

identification of instances in which counsel did not make an evidentiary

objection, without more, does not establish deficient performance of counsel

for the purposes of an ineffective-assistance claim.”) .

The act, or lack thereof, must be so egregious that no reasonable

attorney would act in this manner. Without a trial record demonstrating

counsel’s reasons, we must determine whether counsel’s actions conform to a

reasonable trial strategy. Garcia , 57 S.W.3d at 440 .

The

record indicates two possible reasons why the appellant’s counsel did not

object to the hearsay testimony. First, the day before Nurse Layton testified,

the court discussed her upcoming testimony with both parties’ counsel. The

court noted, as an aside, that Layton’s comments likely fell within the hearsay

exception for statements made for the purpose of medical diagnosis. See Tex.

R. Evid . 803(4). It is

not ineffective assistance of counsel to refrain from objecting to admissible

evidence. See Flowers v. State, 124 S.W.3d 801 , 803–04 (Tex. App.—Houston

[1st Dist.] 2003, pet. ref’d) (holding that trial counsel was not ineffective

for failing to object because, even if counsel had objected, trial court would

not have erred in admitting testimony or evidence).

Second, the record indicates the State

intended to designate Nurse Layton as an outcry witness to introduce statements

by A.A. about additional sexual acts by appellant. However,

the trial court did not permit the state to name multiple outcry witnesses to

introduce these additional statements. Appellant’s counsel could have withdrawn

the objection to not draw additional attention to Nurse Layton’s statements, or

he may have withdrawn the objection to avoid initiating another hearing on

whether Nurse Layton could be designated as an outcry witness.

Appellant’s reliance on Ex parte Welborn, 785 S.W.2d 391 (Tex.

Crim. App. 1990), and Greene v. State, 928

S.W.2d 119 (Tex. App.—San Antonio 1996, no pet.), is misplaced. Appellant

points to Welborn and Greene in support of the proposition

that multiple small errors over the course of a trial may, in the aggregate, be

sufficient to demonstrate ineffective assistance of counsel. See Welborn ,

785 S.W.2d at 396 ; Greene , 928 S.W.2d

at 126–27. This is distinguishable because

in this case appellant only complains about the failure to object to the one

statement by Nurse Layton, not the pattern of errors seen in Welborn or Greene .

Because

appellant has not demonstrated his counsel’s performance was objectively

unreasonable under Strickland ’s first

prong, he failed to demonstrate he received ineffective assistance of counsel. We

overrule appellant’s second point of error.

CONCLUSION

We affirm the trial court’s judgment.

Sherry Radack

Chief

Justice

Panel consists of Chief Justice Radack and Justices Sharp

and Brown.

Do not publish. Tex.

R. App. P. 47.2( b).