                                 NO. 07-01-0389-CR

                            IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                       PANEL A

                                 FEBRUARY 21, 2002

                         ______________________________


                           FELIPE SALAZAR, APPELLANT

                                          V.

                         THE STATE OF TEXAS, APPELLEE


                       _________________________________

             FROM THE 154TH DISTRICT COURT OF LAMB COUNTY;

                   NO. 3269; HONORABLE FELIX KLEIN, JUDGE

                        _______________________________

Before BOYD, C.J., and REAVIS and JOHNSON, JJ.


      Upon a plea of not guilty, appellant Felipe Salazar was convicted by a jury of two

counts of indecency with a child and punishment was assessed by the court at ten years

confinement and a $1000 fine on each count, sentences to be served consecutively.

Presenting three issues, appellant contends (1) he was denied effective assistance of

counsel due to numerous errors and omissions, (2) the evidence was insufficient to prove
his actions were committed with the intent to arouse or gratify his sexual desire, and (3)

the trial court erred in failing to sua sponte submit a limiting instruction on extraneous

offenses. Based upon the rationale expressed herein we affirm.


      Rebecca Nieto is the mother of O.G. and J.R., the victims in the underlying case.

At the time of the alleged abuse O.G. was ten and J.R. was 12. Although the girls

sometimes referred to appellant as “Dad,” they were not related and appellant and Nieto

were never married. They lived together from the time the girls were young and had other

children together. On January 1, 1999, while O.G. was staying with Endina Marquez,

appellant’s sister, she told her she had been fondled by appellant. Marquez and her

husband took O.G. to the police department to report the incident. During an interview

with Officer David Davis, O.G. informed him that appellant had touched her breasts and

vaginal area. Davis contacted Child Protective Services (CPS) and two caseworkers,

Susie Perkins and Tonya Potts, were assigned to the case.


      Both Perkins and Potts interviewed O.G. at the police department and according to

O.G., appellant had touched her and her sister J.R. on their breasts and genital areas on

more than one occasion. O.G. claimed that appellant threatened to twist her legs off if she

told anyone. After the interview with O.G., Perkins, Potts, and Officer Davis visited the

home to interview J.R. Appellant had already been removed from the home and arrested

on an outstanding warrant for forgery. Perkins interviewed J.R. privately in a back

bedroom and after several denials, J.R. admitted that appellant had touched her “where

                                            2
he’s not supposed to” indicating her “private parts.” Both girls stated that the touching

always occurred over their clothing. O.G. claimed that appellant physically threatened her

not to tell anyone of the incident. However, both girls claimed to have reported the

incident to their mother shortly before Christmas vacation in 1998. According to O.G.’s

testimony, her mother and appellant argued about the situation and thereafter, O.G. went

to stay with her aunt and uncle during Christmas break. Aware of the allegations, the aunt

and uncle took O.G. to the police department to file a report. Following a jury trial,

appellant was convicted of two counts of indecency with a child and his consecutive ten-

year sentences and $1,000 fines were assessed by the court. We will address appellant’s

issues in a logical rather than sequential order.


       By his second issue, appellant limits his sufficiency challenge by asserting that the

evidence is legally and factually insufficient to prove that his actions were committed with

the intent to arouse or gratify his sexual desire. We disagree. When both the legal and

factual sufficiency of the evidence are challenged, we must first determine whether the

evidence is legally sufficient to support the verdict. Clewis v. State, 922 S.W.2d 126, 133

(Tex.Cr.App. 1996). It is a fundamental rule of criminal law that one cannot be convicted

of a crime unless it is shown beyond a reasonable doubt that the defendant committed

each element of the alleged offense. U.S. Const. amend. XIV; Tex. Code Crim. Proc. Ann.

art. 38.03 (Vernon Supp. 2002); Tex. Pen. Code Ann. § 2.01 (Vernon 1994). In conducting

a legal sufficiency review, we must determine whether, after viewing the evidence in the


                                             3
light most favorable to the prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.

307, 318, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1979); Geesa v. State, 820 S.W.2d

154, 157 (Tex.Cr.App. 1991), overruled on other grounds, Paulson v. State, 28 S.W.3d

570, 573 (Tex.Cr.App. 2000). As an appellate court, we may not sit as a thirteenth juror,

but must uphold the jury's verdict unless it is irrational or unsupported by more than a mere

modicum of evidence. Moreno v. State, 755 S.W.2d 866, 867 (Tex.Cr.App. 1988).


       After conducting a legal sufficiency review under Jackson, we may proceed with a

factual sufficiency review. Clewis, 922 S.W.2d at 133. The Court of Criminal Appeals has

directed us to ask whether a neutral review of all the evidence, both for and against the

finding, demonstrates that the proof of guilt is so obviously weak as to undermine

confidence in the fact finder’s determination, or the proof of guilt, although adequate if

taken alone, is greatly outweighed by contrary proof. Johnson v. State, 23 S.W.3d 1, 11

(Tex.Cr.App. 2000) (adopting complete civil factual sufficiency formulation); see also King

v. State, 29 S.W.3d 556, 563 (Tex.Cr.App. 2000). Accordingly, we will reverse the fact

finder’s determination only if a manifest injustice has occurred. Johnson, 23 S.W.3d at 12.

In conducting this analysis, we may disagree with the jury’s determination, even if

probative evidence supports the verdict, but must avoid substituting our judgment for that

of the fact finder. See Santellan v. State, 939 S.W.2d 155, 164 (Tex.Cr.App. 1997).




                                             4
       Before determining whether the evidence is legally sufficient to sustain the

conviction, we must review the essential elements the State was required to prove. The

elements of indecency with a child are engaging in sexual contact with a child under 17

years of age who is not the spouse of the person. Tex. Pen. Code Ann. § 21.11(a)(1)

(Vernon Supp. 2002). As relevant here, sexual contact is defined as “any touching by a

person, including touching through clothing, of the anus, breast, or any part of the genitals

of a child” committed with the intent to arouse or gratify the sexual desire of any person.

§ 21.11(c)(1).


       Without challenging the evidence that he touched the girls’ “private parts,” appellant

asserts that the evidence is insufficient to establish that he intended to arouse or gratify

his sexual desire. Intent to arouse or gratify sexual desire can be inferred from conduct,

remarks, or all the surrounding circumstances. Robertson v. State, 871 S.W.2d 701, 705

(Tex.Cr.App. 1993), cert. denied, 513 U.S. 853, 115 S.Ct. 155, 130 L.Ed.2d 94 (1994).

Further, an oral expression of intent is not required. C.F. v. State, 897 S.W.2d 464, 472

(Tex.App.–El Paso 1995, no pet.).


       Appellant’s argument centers on conflicting evidence of whether he made a threat

to one girl to keep her quiet and the absence of any threat to the other girl. However, in

determining the legal sufficiency of the evidence to show intent, and faced with a record

that supports conflicting inferences, we must presume–even if it does not affirmatively

appear in the record–that the trier of fact resolved any such conflicts in favor of the

                                             5
prosecution and must defer to that resolution. Matson v. State, 819 S.W.2d 839, 846

(Tex.Cr.App. 1991); Couchman v. State, 3 S.W.3d 155, 163 (Tex.App.–Fort Worth 1999,

pet. ref’d). O.G. and J.R. shared a bedroom with other siblings. O.G. testified that

appellant touched her breasts and “middle parts down there” while she was in bed. She

claimed that the touching occurred at night while her mother was asleep. J.R. also

testified that appellant touched her private parts while she was in bed. While testifying she

indicated that her “private parts” referred to her breasts and genital area. Both girls

reported the touching to their mother and testified that their mother and appellant fought

over the incident.


       The record contains conflicting evidence regarding the frequency of the incidents.

According to the interview between Caseworker Perkins and J.R., appellant touched her

one time. However, when J.R. testified she answered in the affirmative when asked if she

had been inappropriately touched more than once. O.G. testified that the touching began

in October 1998 and probably occurred more than five times before it was reported on

January 1, 1999. We must presume the jury resolved any conflicting inferences in favor

of the prosecution and thus, we find the evidence is legally sufficient to establish the

element of intent to gratify his sexual desire.


       Concluding that the evidence is legally sufficient to support the verdict, we must

now determine, after a neutral review of all the evidence, whether it is factually sufficient

to support the verdict. Johnson, 23 S.W.3d at 11. It is the exclusive province of the fact

                                             6
finder to determine the credibility of the witnesses and the weight to be given their

testimony. Johnson v. State, 571 S.W.2d 170, 173 (Tex.Cr.App. 1978); Armstrong v.

State, 958 S.W.2d 278, 284 (Tex.App.--Amarillo 1997, pet. ref'd).


       Appellant does not refer us to any evidence, and we have found none, indicating

that his contact with the girls’ “private parts” was necessary or accidental. Thus, the jury

was free to infer that appellant touched O.G. and J.R. with the intent to gratify or arouse

his sexual desire. Under this record we conclude, after a neutral review of all the evidence

and without substituting our own judgment, that the evidence is factually sufficient to

support the element of intent to gratify appellant’s sexual desire. Appellant’s second issue

is overruled.


       By his third issue, appellant contends the trial court erred by not sua sponte

providing the jury a limiting instruction regarding extraneous offenses during the

guilt/innocence stage. We disagree. Evidence of acts of domestic violence committed

by appellant and an arrest for forgery was offered and admitted without objection during

the guilt/innocence phase. Citing Huizar v. State, 12 S.W.3d 479 (Tex.Cr.App. 2000),

appellant contends that no request for a limiting instruction nor an objection was required

to present his contention on appeal. Although Huizar holds that no objection or request

is required in order for the trial court to instruct the jury, it is not controlling for two reasons.

First, evidence of appellant’s extraneous conduct was presented during the guilt/innocence

phase.    Huizar discusses the requirement of a reasonable-doubt instruction in the

                                                 7
punishment charge in relation to section 3(a) of article 37.07 of the Texas Code of Criminal

Procedure entitled “Evidence of prior criminal record in all criminal cases after a finding of

guilty.” (Emphasis added). Because appellant had not yet been found guilty when the jury

charge was given during the guilt/innocence phase, a reasonable-doubt instruction

regarding extraneous offenses was not required where no objection was made or request

for a limiting instruction made at the time the evidence was offered. See White v. State,

999 S.W.2d 895, 901 (Tex.App.–Amarillo 1999, pet. ref’d), citing George v. State, 890

S.W.2d 73, 76 (Tex.Cr.App. 1994); cf. Hammock v. State, 46 S.W.2d 889, 893-94

(Tex.Cr.App. 2001) (holding that a request for a limiting instruction is required at the time

extraneous evidence is offered during the guilt/innocence phase to avoid consideration of

the evidence by a jury in an inappropriate manner). Second, because appellant elected

to have punishment assessed by the trial court, no punishment charge was required and

the question regarding the necessity of a reasonable-doubt instruction became moot.

Issue three is overruled.


       By his final contention, appellant asserts he was denied effective assistance of

counsel due to numerous errors and omissions. We disagree. Specifically, appellant

faults trial counsel for:


       C       failing to conduct an independent investigation of the case and
               interview witnesses;
       C       failing to obtain notice of intent to use, object to, or request a limiting
               instruction on extraneous offenses;


                                                8
       C      failing to properly object to the alleged “outcry”;
       C      failing to introduce a letter written by J.R.;
       C      failing to inform him of the possibility of the sentences running
              consecutively which prevented him from knowingly declining a plea
              offer of five years; and
       C      being ineffective by the cumulative effect of the numerous errors.


To establish ineffective assistance of counsel, appellant must show that (1) counsel’s

performance was deficient (i.e., fell below an objective standard of reasonableness), and

(2) there is a reasonable probability that but for counsel’s deficient performance, the result

of the proceeding would have been different, a reasonable probability being a probability

sufficient to undermine confidence in the outcome. Strickland v. Washington, 466 U.S.

668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984);1 Hernandez v. State, 726 S.W.2d 53, 55

(Tex.Cr.App. 1986).


       The adequacy of defense counsel’s assistance is based upon the totality of the

representation rather than by isolated acts or omissions of trial counsel. Garcia v. State,

887 S.W.2d 862, 880 (Tex.Cr.App. 1994), cert. denied, 514 U.S. 1021, 115 S.Ct. 1368,

131 L.Ed.2d 223 (1995). Although the constitutional right to counsel ensures the right to

reasonably effective counsel, it does not guarantee errorless counsel whose competency

or accuracy of representation is to be judged by hindsight. Ingham v. State, 679 S.W.2d



       1
       The Court of Criminal Appeals has overruled both Ex parte Duffy, 607 S.W.2d 507,
516 (Tex.Cr.App. 1980) and Ex parte Cruz, 739 S.W.2d 53 (Tex.Cr.App. 1987) by its
decision in Hernandez v. State, 988 S.W.2d 770 (Tex.Cr.App. 1999).

                                              9
503, 509 (Tex.Cr.App. 1984); see also Ex Parte Kunkle, 852 S.W.2d 499, 505 (Tex.Cr.App.

1993). A strong presumption exists that defense counsel's conduct falls within a wide

range of reasonable representation. Strickland, 466 U.S. at 690, 104 S.Ct. at 2064, 80

L.Ed.2d at 695; Dewberry v. State, 4 S.W.3d 735, 757 (Tex.Cr.App. 1999), cert. denied,

529 U.S. 1131, 120 S.Ct. 2008, 146 L.Ed.2d 958 (2000). To sustain a challenge of

ineffective assistance, it must be firmly founded in the record, Mercado v. State, 615

S.W.2d 225, 228 (Tex.Cr.App. 1981), and the defendant must overcome the presumption

that counsel's conduct might be considered sound trial strategy. Jackson v. State, 877

S.W.2d 768, 771 (Tex.Cr.App. 1994).        After proving error, a defendant must also

affirmatively demonstrate prejudice. Garcia, 887 S.W.2d at 880. Failure to make the

required showing of either deficient performance or sufficient prejudice defeats the

ineffectiveness claim. Id.


       Trial counsel testified at a hearing on a motion for new trial. He explained that he

was unable to interview O.G, J.R., or their mother because according to appellant “they

were on the run” and could not be located. The record supports counsel’s explanation

because the mother spent time in south Texas and time in jail while the girls moved from

one relative to another. O.G. and J.R. resided in Kansas for a period of time and upon

returning to Texas lived in several different places. Counsel further explained that he did

not interview Officer Davis or the caseworkers because he already had their official

reports.


                                            10
       Counsel filed several pretrial motions; however, he could not say that it was sound

trial strategy not to request a Rule of Evidence 404(b) motion on extraneous offenses. He

did testify that after researching the statute under which appellant was indicted, he

determined the court’s charge was not objectionable. Assuming, arguendo, that counsel’s

failure to object to the charge constituted deficient performance, appellant has not

affirmatively demonstrated prejudice.


       Regarding counsel’s failure to object to the alleged outcry, article 38.072 of the

Texas Code of Criminal Procedure Annotated (Vernon Pamph. Supp. 2002), provides that

an outcry statement is not inadmissible under the hearsay rule if it is made by the child

victim to the first person other than the defendant, and the child testifies or is available to

testify. Here, the State gave the required statutory notice of its intent to offer O.G.’s and

J.R.’s hearsay statements through the testimony of the caseworkers. However, the record

establishes that O.G. and J.R. first told their mother of the alleged abuse. Therefore, the

caseworkers were not proper outcry witnesses and trial counsel should have objected to

their testimony based on article 38.072. Relying on Hollinger v. State, 911 S.W.2d 35, 39

(Tex.App.–Tyler 1995, pet. ref’d), the State asserts that Caseworker Perkins was in fact

a proper outcry witness because she was the first person whom O.G. and J.R. told of the

abuse in “a discernable manner.” Hollinger, however, is not controlling because it involved

a three-year old victim who was not competent or available to testify. O.G. was ten and

J.R. was 12 at the time of the abuse and both testified at trial. We find that trial counsel’s


                                              11
performance was deficient for failing to object to the outcry witnesses, but hold that

appellant has not satisfied the second prong of Strickland which requires a showing of

prejudice from counsel’s error.


       Appellant asserts that counsel’s performance was deficient by failing to introduce

an undated letter written by J.R. to a boyfriend which could have shown “the imagination

aspect of the victim.” Counsel testified that he thought “long and hard” about the letter, but

in his opinion, it was inadmissible. When a defendant alleges a claim of ineffectiveness

for failure to make an offer of proof, he still carries the burden of making a Strickland

showing that is firmly founded in the record. Francis v. State, 801 S.W.2d 548, 552

(Tex.App.–Houston [14th Dist.] 1990), pet. ref’d per curiam, 805 S.W.2d 474 (Tex.Cr.App.

1991). Other than an allegation in his appellate brief, appellant has not established how

failure to introduce the letter prejudiced him.


       Appellant contends he was not informed by trial counsel of the possibility of his

sentences running consecutively which prevented him from knowingly declining a plea

offer. At the hearing on the motion for new trial counsel testified that he and appellant did

not discuss the possibility of the sentences being stacked. When questioned whether he

knew that stacking could result, counsel candidly conceded that he had not researched the

law and was unaware of it. We find that counsel’s failure to advise his client of the

possibility of confinement for up to 40 years when a plea offer of five years was offered fell

below an objective standard of reasonableness.

                                             12
       Having determined that counsel’s performance was deficient, we must decide

whether but for counsel’s error, the result of the proceeding would have been different.

Appellant was charged with a second degree felony punishable by two to 20 years

confinement. See Tex. Pen. Code Ann. § 21.11(a)(1) (Vernon Supp. 2002) and §12.33(a)

(Vernon 1994). Trial counsel testified that appellant declined to plead guilty. Convicted

on two separate counts of indecency with a child, the trial court imposed only ten years for

each count, resulting in a total of 20 years confinement, which is the maximum sentence

for one count on a second degree felony. Appellant did not testify at the hearing or

present any evidence that he would have accepted the five-year plea offer had he known

of the possibility of consecutive sentences that might have resulted in a total of 40 years

confinement. We find that appellant has failed to satisfy the second prong of Strickland

which requires a showing of prejudice.


       Appellant contends by his final claim of ineffective assistance that the cumulative

effect of counsel’s errors compel a holding that he was denied effective assistance of

counsel. We disagree. Reviewing counsel’s performance based on the totality of his

representation rather than by isolated acts or omissions, we find that appellant was not

denied reasonably effective counsel. Trial counsel, who was not appellant’s first appointed

counsel, met with him on at least three different occasions prior to trial. He filed several

pretrial motions, conducted an investigation, and through cross-examination of witnesses

at trial, advanced a defense to show that O.G. and J.R. disliked appellant and had


                                            13
conjured up the accusations of abuse so that their mother would leave him. Although we

find that trial counsel’s representation was not errorless, all that is required is a right to

reasonably effective counsel. Ingham, 679 S.W.2d at 509. Appellant’s first issue is

overruled.


       Accordingly, the judgment of the trial court is affirmed.



                                           Don H. Reavis
                                             Justice

Do not publish.




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