                              Fourth Court of Appeals
                                     San Antonio, Texas
                                 MEMORANDUM OPINION
                                        No. 04-12-00015-CR

                                    Fernando Guadalupe SALAS,
                                             Appellant

                                                  v.

                                        The STATE of Texas,
                                              Appellee

                     From the 406th Judicial District Court, Webb County, Texas
                                Trial Court No. 2010CRS000775D4
                            Honorable Oscar J. Hale, Jr., Judge Presiding

Opinion by:       Luz Elena D. Chapa, Justice

Sitting:          Karen Angelini, Justice
                  Patricia O. Alvarez, Justice
                  Luz Elena D. Chapa, Justice

Delivered and Filed: March 20, 2013

AFFIRMED

           Fernando Guadalupe Salas was charged with two counts of aggravated sexual assault of a

child and six counts of indecency with a child.         A jury convicted Salas of one count of

aggravated sexual assault of a child and one count of indecency with a child. Salas raises three

issues on appeal, asserting: (1) the trial court abused its discretion in permitting an outcry witness

to testify; (2) the trial court erred in overruling Salas’s objection to the admission of testimony

regarding his refusal to make a written statement during a police interview; and (3) trial counsel
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rendered ineffective assistance of counsel. We overrule Salas’s issues and affirm the trial court’s

judgment.

                                               OUTCRY TESTIMONY

           In his first issue, Salas asserts the trial court abused its discretion in permitting the State

to present outcry witness testimony. Specifically, Salas contends the State failed to give the

requisite notice of its intent to offer outcry testimony and the trial court failed to conduct a

hearing outside the presence of the jury to determine whether the outcry statement was reliable.

Salas asserts prior notice and a hearing are required by Article 38.072 of the Texas Code of

Criminal Procedure.

           A.       Testimony and Objections

           The complainant in the instant case, “Krystal, 1” was eighteen-years-old at the time of

trial. She testified that Salas began sexually abusing her when she was around six or seven years

old. She testified that she told a school counselor, Ms. Selina Moncivais, about the abuse when

she was in tenth grade because she did not want her little sisters to also be abused.

           Before Moncivais was called as a witness, defense counsel requested permission to

question her on voir dire regarding her capacity to be a witness. The prosecutor responded that

Moncivais was the outcry witness. The prosecutor agreed that he could not elicit “what the child

told her,” but the prosecutor argued that he could elicit Moncivais’s testimony regarding the

circumstances of when Krystal spoke with Moncivais. Defense counsel responded that because

no outcry witness was designated, Moncivais’s testimony would constitute “improper bolstering

of the victim.” The prosecutor responded that he only intended to question Moncivais about

Krystal approaching her for counseling not regarding the statements Krystal made. Defense

counsel responded that the testimony would imply that Moncivais was told about the allegations,

1
    “Krystal” was an alias given to the complainant.

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making her an outcry witness and her testimony improper bolstering of the witness. The trial

court then clarified, as follows:

       THE COURT: But what — so your objection is improper bolstering?
       [DEFENSE COUNSEL]: Improper bolstering.
       THE COURT: Overruled.

       Moncivais then testified about the events leading to her counseling of Krystal and stated

that Krystal made an outcry to her. Moncivais testified that she then counseled Krystal and

reported the outcry to the proper authorities.

       Defense counsel again objected that Moncivais was being called to “fill the role of an

outcry witness,” but the State did not designate her as an outcry witness. Although further

discussion ensued regarding the testimony, the trial court made no ruling on defense counsel’s

objection. Instead, the trial court asked the prosecutor about his next line of questioning. When

the prosecutor stated his next line of questioning would be demeanor, the trial court instructed

the prosecutor to “[m]ove on then to that area then.”

       During cross-examination, Moncivais again referred to Krystal making an outcry.

Defense counsel objected and requested the trial court to instruct the jury “not to assume that the

outcry has anything to do with any sexual allegations, and to disregard the statement that an

outcry was made.” At this juncture, defense counsel made his first reference to the testimony

being hearsay. The trial court reminded defense counsel, “Your objection was bolstering, which

was overruled.” Further discussion then ensued regarding whether Moncivais’s reference to an

outcry being made was hearsay and whether Moncivais was an improper outcry witness.

       B.      Preservation of Error and Harm

       “To preserve error for appellate review, the Texas Rules of Appellate Procedure require

that the record show that the objection ‘stated the grounds for the ruling that the complaining

party sought from the trial court with sufficient specificity to make the trial court aware of the
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complaint, unless the specific grounds were apparent from the context.’” Clark v. State, 365

S.W.3d 333, 339 (Tex. Crim. App. 2012) (quoting TEX. R. APP. P. 33.1(a)(1)(A)). In addition,

the issue raised on appeal “must comport with the objection made at trial.” Id. Finally, a party

must object each time the inadmissible evidence is offered. Valle v. State, 109 S.W.3d 500, 509

(Tex. Crim. App. 2003). “An error in the admission of evidence is cured where the same

evidence comes in elsewhere without objection.” Id.

         In this case, the objection defense counsel made before Moncivais’s testimony, as

clarified by the trial court, was improper bolstering. This objection does not comport with the

complaint made on appeal regarding the failure to comply with Article 38.072’s requirements;

therefore, it is not preserved for our review. Clark, 365 S.W.3d at 339.

         Even assuming for purposes of this opinion defense counsel preserved his complaint that

the State failed to provide the notice required by Article 38.072 with regard to Moncivais’s

testimony, 2 Salas concedes that the record would need to establish he was harmed by the

admission of Moncivais’s testimony stating Krystal made an outcry to her. This testimony,

however, was previously admitted into evidence through the testimony of the investigating

detective who testified he made contact with Moncivais concerning what Krystal disclosed to her

about the abuse and reference was made to Moncivais being the “outcry witness” during the

detective’s questioning. Moreover, as previously noted, Krystal testified she reported the abuse

to Moncivais. Because the same evidence about which Salas complains was admitted elsewhere

without objection, any error in admitting Moncivais’s testimony was cured. See Valle, 109


2
 The State argues in its brief that Article 38.072 did not apply in the instant case because Krystal was over the age of
fourteen when she made her outcry. As one of our sister courts has recognized, however, ‘the victim’s age when the
offense is committed triggers whether the statute applies, not the victim’s age at the time the outcry is made.” Lopez
v. State, 315 S.W.3d 90, 97 n.6 (Tex. App.—Houston [1st Dist.] 2010), rev’d on other grounds, 343 S.W.3d 137
(Tex. Crim. App. 2011). Therefore, the statute appears to apply when the victim is younger than 14 years of age
when the offense is committed and the victim makes the outcry before his or her 18th birthday. See id; see also
Harvey v. State, 123 S.W.3d 623, 629 (Tex. App.—Texarkana 2003, pet. ref’d).

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S.W.3d at 109. Finally, given the detail provided in Krystal’s testimony, it would be difficult to

conclude that Moncivais’s mere reference to Krystal making an outcry affected Salas’s

substantial rights. See TEX. R. APP. P. 44.2(b) (providing that any non-constitutional error that

does not affect substantial rights must be disregarded); see also Garcia v. State, 228 S.W.3d 703,

708 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d) (holding improper admission of evidence

that proved same facts as testimony of victim did not affect the defendant’s substantial rights);

Dunn v. State, 125 S.W.3d 610, 615 (Tex. App.—Texarkana 2003, no pet.) (same).

       Salas’s first issue is overruled.

                           PRIVILEGE AGAINST SELF-INCRIMINATION

       In Salas’s second issue, he asserts the trial court erred in allowing the investigating

detective to testify that Salas did not make a written statement when he was interviewed. Salas

contends the admission of the testimony violated his privilege against self-incrimination.

       As previously noted, a party must object each time inadmissible evidence is offered.

Valle, 109 S.W.3d at 509. When the prosecutor in the instant case first asked the investigating

detective whether Salas gave him a written statement, defense counsel objected on the basis that

the question was an improper comment on Salas’s right to remain silent, and the trial court

overruled the objection.    However, after this objection was overruled, the prosecutor then

questioned the investigating detective at length about each of the written Miranda warnings

initialed and signed by Salas. At the conclusion of this questioning, the prosecutor asked:

              Q.     Now, after he was advised of his Miranda warnings, he did not
       make a statement?
              A.     Correct. He did not make a written statement.

No objection was made to this testimony; accordingly, Salas’s second issue is not preserved for

our review. See id.



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                            INEFFECTIVE ASSISTANCE OF COUNSEL

       In his final issue, Salas contends trial counsel rendered ineffective assistance of counsel.

Ineffective assistance of counsel claims require a showing of both deficient performance and

prejudice. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). There is a strong

presumption that trial counsel’s conduct fell within the wide range of professional assistance.

Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). An ineffective assistance claim

must be firmly founded in the record, and the record must affirmatively demonstrate the alleged

ineffectiveness. Goodspeed, 187 S.W.3d at 392; Thompson, 9 S.W.3d at 813. “Direct appeal is

usually an inadequate vehicle for raising such a claim because the record is generally

undeveloped.” Goodspeed, 187 S.W.3d at 392. “If counsel’s reasons for his conduct do not

appear in the record and there is at least the possibility that the conduct could have been

legitimate trial strategy, we will defer to counsel’s decisions and deny relief on an ineffective

assistance claim on direct appeal.” Ortiz v. State, 93 S.W.3d 79, 88–89 (Tex. Crim. App. 2002).

       On appeal, Salas argues that defense counsel requested a continuance to employ co-

counsel because she was not competent to try the case. Salas’s contention is not, however,

supported by the record. Instead, the motion for continuance states the intention to retain

additional counsel to serve as co-counsel was “in order to defend against the vast resources from

the state,” thus implying that the “vast resources” being employed by the State required more

than one attorney to respond.

       Salas next asserts defense counsel rested without presenting any kind of a defense;

however, Salas further argues defense counsel’s efforts to discredit Krystal’s testimony were

ineffective. In noting that defense counsel was attempting to discredit Krystal’s testimony, Salas

contradicts his own assertion that defense counsel failed to present any kind of defense. As Salas



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appears to acknowledge, defense counsel’s strategy was to discredit the complainant. We note

that the jury acquitted Salas of six of the eight counts with which he was charged.

       With regard to Salas failing to object to the testimony that he was very strict with Krystal

and her siblings, requiring them to clean the house and never allowing them to have fun, defense

counsel may have decided not to object because this testimony would provide a motivation for

Krystal to make the allegations against Salas. Salas also contends counsel failed to object to Dr.

Gregorio Piña’s testimony regarding Krystal knowing “right from wrong.” However, Krystal

herself previously testified that she knew the truth from a lie, and defense counsel may have

determined that an objection, even if sustained, would not be helpful because it could place

undue emphasis on the testimony. Moreover, defense counsel may have decided not to object to

Dr. Piña’s statements regarding the approximate number of times and manner in which Krystal

reported to him that Salas had sexually assaulted her in order to focus the jury’s attention on the

discrepancies between these statements and Krystal’s trial testimony.

       With regard to defense counsel’s failure to introduce additional mitigation evidence at

punishment, Salas filed a motion for new trial, attaching affidavits from three witnesses who

would have been willing to testify in Salas’s favor during the punishment phase of trial. The

record reflects defense counsel interviewed the witnesses but then apparently made a decision

not to call them as witnesses at trial. After interviewing the witnesses, defense counsel may have

thought they would not be credible or would open the door to additional questioning on cross-

examination that would be harmful to Salas.

       Finally, Salas alleges defense counsel never discussed with him whether he should testify

at the guilt/innocence phase of trial. As with all of Salas’s other ineffective assistance of counsel

allegations, this allegation is not firmly founded in the record because defense counsel was not

called to testify at the hearing on Salas’s motion for new trial. Accordingly, the record is silent
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regarding defense counsel’s discussions with Salas and defense counsel’s strategy. Although we

have posited some possible reasons for defense counsel’s actions, “[a] reviewing court cannot

speculate as to the reasons why trial counsel acted as he did, rather a reviewing court must

presume the actions were taken as part of a strategic plan for representing the client.” Rodriguez

v. State, 336 S.W.3d 294, 302 (Tex. App.—San Antonio 2010, pet. ref’d); see also Lopez, 343

S.W.3d at 143–44 (reversing intermediate court’s holding that trial counsel rendered ineffective

assistance where record was silent). Because the record does not affirmatively demonstrate the

alleged ineffective assistance, we overrule Salas’s third issue. We note, however, that our

decision does not preclude Salas from presenting his ineffective assistance of counsel claim in an

application for writ of habeas corpus. See Thompson, 9 S.W.3d at 814–15.

                                          CONCLUSION

       The trial court’s judgment is affirmed.

                                                       Luz Elena D. Chapa, Justice

DO NOT PUBLISH




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