Opinion filed January 25, 2018




                                          In The


          Eleventh Court of Appeals
                                      __________

                                 No. 11-16-00296-CR
                                     __________

                         MARTIN FLORES, Appellant
                                             V.
                      THE STATE OF TEXAS, Appellee

                     On Appeal from the 142nd District Court
                             Midland County, Texas
                         Trial Court Cause No. CR44415

                      MEMORANDUM OPINION
      The jury found Appellant guilty of two counts of the second-degree felony
offense of sexual assault of a child.1 For the first count, the jury assessed punishment
at confinement for ten years but recommended that the trial court suspend
Appellant’s sentence and place him on community supervision. For the second
count, the jury assessed punishment at confinement for twenty years. The trial court
accepted the jury’s recommendation on the first count and placed Appellant on

      1
       See TEX. PENAL CODE ANN. § 22.011 (West Supp. 2017).
community supervision for ten years. On the second count, the trial court sentenced
Appellant to confinement for twenty years. On appeal, Appellant presents two
issues. We affirm.
                              I. The Charged Offense
      The grand jury indicted Appellant on two separate counts for the offense of
sexual assault of a child. Under Count One, the indictment alleged that Appellant
intentionally and knowingly caused the penetration of M.B.’s sexual organ with his
sexual organ while M.B. was under the age of seventeen. Under Count Two, the
indictment alleged that Appellant intentionally and knowingly caused the
penetration of M.B.’s anus with his sexual organ while M.B. was under the age of
seventeen. A person commits the offense of sexual assault of a child if the person
intentionally or knowingly “causes the penetration of the anus or sexual organ of a
child” who is under the age of seventeen. TEX. PENAL CODE ANN. § 22.011(a)(2)(A).
                              II. Evidence at Trial
      In November 2014, M.B. was living with Appellant’s wife, Pollyanna Flores,
and Appellant’s ex-sister-in-law, Kyla Graves, in Lubbock. M.B. is Pollyanna’s
cousin and had moved in with Pollyanna to assist with the care of her three children.
Appellant worked in the oil fields in Midland, Texas, and was only home about
“once every other week” or on “[t]he weekends.” M.B. accused Appellant of
sexually assaulting her at a hotel room in Midland on or about November 5, 2014.
M.B. was sixteen years old at the time, and her recollection of that night was unclear
because she drank too much alcohol.
         A. M.B., Pollyanna, and the three children took a trip to Midland.
      M.B., Pollyanna, the children, and Appellant met up at a Comfort Inn in
Midland in a hotel room with two beds. Appellant brought alcoholic drinks with
him, and Appellant, Pollyanna, and M.B. all proceeded to drink together. M.B.


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remembered being on one of the beds while Appellant, Pollyanna, and the children
were on the other bed.
      M.B. testified that the next thing she remembered was being in the bathroom
with Pollyanna. Pollyanna asked M.B. to check and see if Pollyanna still had her
tampon in. M.B. checked for her. The next thing M.B. remembered was being in
the main room and lying on one of the beds next to Pollyanna. M.B. said that
Appellant stood in front of his wife and then moved over to M.B. and “put his penis
inside of me [M.B.].” M.B. “believed” that Appellant put his penis in her “butt,”
but she did not remember if he put it anywhere else. M.B. remembered saying “stop”
and then remembered being in the restroom “trying to calm down.” M.B. showered
“to try and get everything out,” and when she walked out of the restroom, she noticed
that Appellant was not there and Pollyanna was crying. M.B. then told Pollyanna
that she was ready to leave.
      Graves testified at trial that M.B. called her on the phone around 4:00 or
4:30 a.m. on their drive back to Lubbock and that they arrived back home around
6:30 a.m. During the phone call with M.B., Graves did not notice anything out of
the ordinary. Graves remarked that, when M.B. arrived at the house, she appeared
to be “[j]ust fine” but that Pollyanna was crying. Graves said that she never
witnessed anything inappropriate happen between Appellant and M.B.
         B. M.B. spoke out about the sexual assault, and a nurse conducted
            a sexual assault examination.
      M.B. testified that, later that day, she texted her close friend about what had
happened. Her friend, in turn, communicated with M.B.’s brother at school and told
him about the assault. M.B.’s mother found out and took M.B. to the emergency
room at University Medical Center in Lubbock because M.B. was in pain and “was
bleeding from [her] butt.” At the emergency room, M.B. said she had been “raped
the night before” by Appellant.

                                          3
      Angelica Loli Reyna, the “nursing house supervisor” at UMC and a sexual
assault nurse examiner (SANE), and Cassandra Schmitt, a victim’s advocate for the
Lubbock Rape Crisis Center, were called to UMC in response to M.B.’s accusations.
Reyna conducted a sexual assault examination on M.B., and Schmitt was present
during the examination to “provide a listening ear.” Reyna testified that M.B.
identified Appellant as her assailant and told her that Appellant “stuck his penis in
[her] vagina” and then “turned [her] over and stuck his penis in [her] butt.” Reyna
also conducted an “anal-genital examination” on M.B. and found an abrasion on her
inner thigh and groin area, “significant redness” at the entry of her vagina—
specifically the posterior fourchette, and three anal tears. Reyna testified at trial that
her findings were consistent with what M.B. had told her, specifically with regard to
the anal penetration that M.B. had alleged. Schmitt testified that M.B. was sobbing
and shaking while speaking to the police and while recalling the assault to the nurse.
                                     III. Analysis
      In his first issue, Appellant claims his “trial counsel was ineffective when he
admitted his client’s guilt to the jury during opening statement and closing
arguments.” In his second issue, Appellant claims that the evidence was insufficient
to convict him of sexual assault of a child as alleged in Count One of the indictment.
We will address Appellant’s sufficiency challenge first and then address his
ineffective assistance of counsel claim.
          A. Issue Two: The State adduced sufficient evidence to convict
             Appellant of the offense of sexual assault of a child as alleged in
             Count One of the indictment.
      Appellant complains in his second issue that that the State adduced
insufficient evidence that Appellant intentionally and knowingly penetrated M.B.’s
sexual organ with his sexual organ. Appellant points out that M.B. could not recall
if Appellant vaginally penetrated her but testified merely that she “believed”


                                            4
Appellant put his penis in her “butt.” The State argues that Reyna’s testimony and
the admitted SANE report provide competent evidence of vaginal penetration. We
agree with the State and conclude that Reyna’s testimony and the SANE report
constitute sufficient evidence from which a jury could have reasonably concluded
that Appellant penetrated M.B.’s sexual organ with his sexual organ.
      The standard of review for sufficiency of the evidence is whether any rational
jury could have found Appellant guilty beyond a reasonable doubt of the charged
offense. Jackson v. Virginia, 443 U.S. 307, 318 (1979); Brooks v. State, 323 S.W.3d
893, 912 (Tex. Crim. App. 2010); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim.
App. 2007). We review the evidence in the light most favorable to the verdict and
determine whether any rational trier of fact could have found the essential elements
of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319; Isassi v. State,
330 S.W.3d 633, 638 (Tex. Crim. App. 2010). The trier of fact may believe all,
some, or none of a witness’s testimony because the factfinder is the sole judge of the
weight and credibility of the witnesses. Sharp v. State, 707 S.W.2d 611, 614 (Tex.
Crim. App. 1986); Isham v. State, 258 S.W.3d 244, 248 (Tex. App.—Eastland 2008,
pet. ref’d). We defer to the trier of fact’s resolution of any conflicting inferences
raised by the evidence and presume that the trier of fact resolved such conflicts in
favor of the verdict. Jackson, 443 U.S. at 326; Brooks, 323 S.W.3d at 894; Clayton v.
State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).
      Although M.B. did not testify at trial that she was vaginally penetrated by
Appellant, M.B. told Reyna during the SANE examination that Appellant “stuck his
penis in my vagina.” Reyna recounted M.B.’s statements at trial, and Reyna’s SANE
report, which also contained M.B.’s allegations of vaginal penetration, was admitted
into evidence. M.B. testified she was sixteen years old at the time of the assault.
This is sufficient evidence from which a jury could have reasonably concluded that
Appellant intentionally and knowingly penetrated M.B.’s “sexual organ” with his
                                          5
sexual organ while she was under the age of seventeen. PENAL § 22.011(a)(2)(A);
see Adams v. State, 502 S.W.3d 238, 244 (Tex. App.—Houston [14th Dist.] 2016,
pet. ref’d) (concluding that a SANE nurse’s testimony was sufficient evidence from
which a jury could have concluded that the defendant committed the offense of
aggravated sexual assault against a child). Moreover, Reyna found an abrasion on
M.B.’s inner thigh and groin area and “significant redness” at the entry of her vagina.
      The defense elicited testimony from Reyna that the “abrasion” was not
actually an abrasion, but just “pretty red” skin, and that the red skin could have been
caused by tight clothing. The jury could have chosen to disregard this testimony.
See Sharp, 707 S.W.2d at 614; Isham, 258 S.W.3d at 248. After a review of the
record, we hold that a rational jury could have found beyond a reasonable doubt that
Appellant committed the offense of sexual assault of a child as alleged in Count One
of the indictment. We overrule Appellant’s second issue.
          B. Issue One: Appellant has failed to establish that he received
             ineffective assistance of counsel.
      Appellant argues in his first issue that he received ineffective assistance of
counsel because his attorney stated in his opening statement and closing argument
that “something did happen” and that we are not going to deny that “something
happened.” Appellant claims that this is a concession of guilt and argues that he
received ineffective assistance of counsel under Strickland v. Washington, 466 U.S.
668 (1984), and, alternatively, United States v. Cronic, 466 U.S. 648 (1984). As we
explain below, we disagree that Appellant’s trial counsel conceded his guilt and hold
that Appellant has not carried his burden of showing ineffective assistance of counsel
under either Strickland or Cronic.




                                          6
             1. An appellant ordinarily has the burden, under Strickland,
                to prove deficient performance and prejudice, but in
                extreme circumstances, under the standard outlined in
                Cronic, prejudice is presumed.
      In most cases, we review an ineffective assistance of counsel claim under the
Strickland standard, which is a two-part analysis that includes a performance prong
and a prejudice prong. Strickland, 466 U.S. at 687. For the performance prong,
Appellant must show that trial counsel’s performance was deficient. Id. For the
prejudice prong, Appellant must show that there is a reasonable probability that the
outcome would have differed but for trial counsel’s errors. See Wiggins v. Smith,
539 U.S. 510, 534 (2003); Strickland, 466 U.S. at 694. “A failure to make a showing
under either prong of the Strickland test defeats a claim of ineffective assistance of
counsel.” Hudson v. State, No. 11-15-00047-CR, 2016 WL 3573484, at *2 (Tex.
App.—Eastland June 30, 2016, pet. ref’d) (mem. op., not designated for publication)
(citing Perez v. State, 310 S.W.3d 890, 893 (Tex. Crim. App. 2010)).
      In rare cases, a party claiming ineffective assistance of counsel is not required
to show prejudice, but rather, prejudice is presumed and the party is only required to
show deficient performance. Florida v. Nixon, 543 U.S. 175, 190 (2004); see
Cronic, 466 U.S. at 658–60. As outlined in Cronic, prejudice will be presumed if
“counsel entirely fails to subject the prosecution’s case to meaningful adversarial
testing.” Cronic, 466 U.S. at 659. In this scenario, there is “a constructive denial of
the assistance of counsel altogether,” and prejudice is presumed because it is “so
likely.” Cannon v. State, 252 S.W.3d 342, 349 (Tex. Crim. App. 2008) (citing
Cronic, 466 U.S. at 658–59); see Bell v. Cone, 535 U.S. 685, 696–97; Strickland,
466 U.S. at 692; Ex parte McFarland, 163 S.W.3d 743, 752–53 (Tex. Crim. App.
2005).
      In Cannon, for example, the Court of Criminal Appeals presumed prejudice
where defense counsel “effectively boycotted the trial proceedings” and “abandoned

                                          7
his role as advocate for the defense.” See id. at 350 (noting that counsel, in part,
declined to participate in jury selection, declined to make objections, declined to
cross-examine State witnesses, declined to make an opening or closing argument,
and declined to offer any defense because he was “unprepared to go forward”). The
Tenth and Ninth Circuit Courts of Appeals have also stated that an attorney’s
admission that his client is guilty invokes the presumption of prejudice and results
in a “fail[ure] to subject the prosecution’s case to meaningful adversarial testing.”
United States v. Swanson, 943 F.2d 1070, 1074 (9th Cir. 1991) (“A lawyer who
informs the jury that it is his view of the evidence that there is no reasonable doubt
regarding the only factual issues that are in dispute has utterly failed ‘to subject the
prosecution’s case to meaningful adversarial testing.’” (quoting Cronic, 466 U.S. at
659)); Osborn v. Shillinger, 861 F.2d 612, 625 (10th Cir. 1988) (“[A]n attorney who
adopts and acts upon a belief that his client should be convicted ‘fail[s] to function
in any meaningful sense as the Government’s adversary.’”); see also United States
v. Williamson, 53 F.3d 1500, 1511 (10th Cir. 1995). This presumption of prejudice
should only be applied in extreme circumstances. See Harris v. State, No. 11-05-
00411-CR, 2007 WL 2128954, at *2 (Tex. App.—Eastland July 26 2007, no pet.)
(not designated for publication) (citing Cronic, 466 U.S. at 659–60); see also Nixon,
543 U.S. at 190.
             2. Appellant has not shown that his trial counsel failed to
                subject the prosecution’s case to meaningful adversarial
                testing under Cronic.
      Appellant asserts that prejudice should be presumed under Cronic because his
attorney failed to subject the prosecution’s case to meaningful adversarial testing
when, in opening statement and closing argument, he stated that “something
happened.” We disagree with Appellant’s argument for two reasons: (1) Appellant’s
attorney did not admit Appellant’s guilt when he stated that “something happened”;


                                           8
and (2) Appellant’s counsel remained an advocate for Appellant throughout the
entire trial.
       First, when counsel’s statements are considered in context with his full
opening and closing statements, rather than in isolation, it is clear that counsel did
not concede Appellant’s guilt. In counsel’s opening statement and closing argument,
each time he said that “something did happen” and that we are not going to deny that
“something happened,” he limited his statements immediately afterwards when he
argued that the State could not meet its burden of proof. For example, in closing
argument after counsel said, “We’re not denying that something happened,” he
asked the jury twice: “What really happened?” He continued and stated that the
State’s case “is riddled with nothing but reasonable doubt” and ultimately asked the
jury to find Appellant “not guilty.” Counsel’s statements were not a concession of
guilt because his statement that “something happened” does not concede facts that
show Appellant was guilty of an element of the offense of sexual assault of a child.
Compare Nixon, 543 U.S. at 182 (conceding guilt where counsel stated that “[i]n
this case, there won’t be any question, none whatsoever, that my client, Joe Elton
Nixon, caused Jeannie Bickner’s death”), and Swanson, 943 F.2d at 1074
(presuming prejudice because defense counsel conceded that there was no
reasonable doubt that his client was the perpetrator and that he committed the offense
charged), with Williamson, 53 F.3d at 1510–12 (holding that there was no concession
of guilt where defense counsel stated in closing argument that he was not going to
dispute the testimony from three police officers that they bought drugs from his
client, even though the defendant had testified that they were lying).
       Second, the entire record reflects that Appellant’s attorney “remained a legal
advocate of the defendant who acted with ‘undivided allegiance and faithful devoted
service.’” Williamson, 53 F.3d at 1511. Before trial began, Appellant’s counsel
filed various motions and participated in several hearings—all in support of
                                          9
Appellant’s defense. Appellant’s attorney subsequently questioned and instructed
the venire panel during voir dire about the State’s burden of proof, the presumption
of innocence afforded to Appellant, and the possibility of probation as punishment.
Appellant’s attorney thereafter asserted numerous challenges for cause and
exhausted all of the allowable peremptory strikes at the conclusion of voir dire.
      During the State’s case-in-chief, the State called six witnesses to testify, and
Appellant’s trial counsel cross-examined all of the witnesses.          Significantly,
Appellant’s counsel elicited testimony, on cross-examination from Reyna, that
sexual assault was not the only possible cause of M.B.’s injuries. In addition, Reyna
conceded that the “abrasion” she observed was not actually an abrasion at all but,
rather, was just “pretty red” skin. In addition to other objections, Appellant’s
counsel objected to the admission of the SANE report and to the proffer of Reyna as
an expert.
      After the State rested, the defense called two witnesses: Kyla Graves and
Appellant’s mother, Zoila Flores.        Appellant’s counsel elicited exculpatory
testimony from Graves that she never witnessed anything inappropriate transpire
between Appellant and M.B.
      Based on the foregoing, there is nothing in the record to suggest that
Appellant’s trial counsel failed “to subject the prosecution’s case to meaningful
adversarial testing.” Cronic, 466 U.S. at 659. For the presumption of prejudice to
apply, “the attorney’s failure to test the prosecutor’s case must be complete.” Bell,
535 U.S. at 686; see Cannon, 252 S.W.3d at 350. The extreme circumstances
required to presume prejudice are not before us in this case. Therefore, to prevail on
his ineffective assistance of counsel claim, Appellant must show, under Strickland,
both deficient performance and prejudice. Strickland, 466 U.S. at 687.




                                         10
             3. Appellant has failed to show that his attorney’s remarks,
                even if we assume that such remarks constitute deficient
                performance, prejudiced him.
      Appellant argues under Strickland that his attorney rendered deficient
performance by the remarks made during opening and closing and that he was
prejudiced as a result. Assuming without deciding that counsel’s performance was
deficient under Strickland, Appellant has not shown that “there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Strickland, 466 U.S. at 694; Cannon, 252 S.W.3d at
349. “A reasonable probability is a probability sufficient to undermine confidence
in the outcome.” Strickland, 466 U.S. at 694. Appellant argues that admitting
“something did happen” undermined Appellant’s not guilty plea and the reasonable
doubt argument espoused at trial. However, M.B.’s and Reyna’s testimony strongly
weighed against Appellant and supported a finding that Appellant sexually assaulted
M.B. “When making [the prejudice] determination, any constitutionally deficient
acts or omissions will be considered in light of the ‘totality of the evidence before
the judge or jury.’” Ex parte Ellis, 233 S.W.3d 324, 331 (Tex. Crim. App. 2007)
(quoting Strickland, 466 U.S. at 695). Given the weight of the evidence showing
Appellant’s guilt, counsel’s remarks that “something happened” did not prejudice
Appellant’s defense. See Thompson v. State, 915 S.W.2d 897, 904 n.2 (Tex. App.—
Houston [1st Dist.] 1996, pet. ref’d) (concluding that an attorney’s remarks
throughout trial that the true issue in the case was punishment rather than guilt did
not prejudice the defendant because there was “overwhelming evidence of [the
defendant’s] guilt”). We overrule Appellant’s first issue.




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                                     IV. This Court’s Ruling
        We affirm the judgments of the trial court.




                                                           MIKE WILLSON
                                                           JUSTICE


January 25, 2018
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Willson, J.,
Bailey, J., and Wright, S.C.J.2




        2
          Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.

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