Jose Salomechavez v. State

Opinion issued October 15, 2020

In The

Court of Appeals

For The

First District of Texas

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NO. 01-19-00782-CR

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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).

B. Analysis

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).

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