



 

 
NUMBER 13-08-410-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG 
 

OSCAR GONZALES, JR.,				        		          Appellant,

v.

THE STATE OF TEXAS, 							  Appellee.
 


On appeal from the 156th District Court of 

Bee County, Texas.
 

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Yañez and Garza
Memorandum Opinion by Justice Yañez	Appellant, Oscar Gonzales, Jr., was convicted of two counts of aggravated sexual
assault (1) and two counts of indecency with a child. (2)  Appellant was given concurrent
sentences of seventy-five years' confinement for each count of aggravated sexual assault,
ten years' confinement for one count of indecency with a child by exposure, and fifteen
years' confinement for one count of indecency with a child by contact.  By four issues,
appellant contends that: (1) the evidence is legally and factually insufficient; (2) his trial
counsel rendered ineffective assistance; (3) the trial court erred by not allowing testimony
from one of his witnesses; and (4) the trial court violated his right to a fair trial because of
bias and prejudice.  We affirm.
I.  Background
	Police arrested appellant after B.H., a ten-year-old child, told her mother that
appellant had exposed his penis to her and her friend, G.A.  Appellant was then charged
with two counts of aggravated sexual assault and two counts of indecency with a child. 
The indictment alleged that appellant had:  (1) "intentionally or knowingly cause[d] the
penetration of the sexual organ of [G. A.], a child who was then and there younger than 14
years of age and not the spouse of [appellant], by [appellant's] finger" (count one); (2)
"intentionally or knowingly cause[d] the penetration of the anus of [G.A.], a child who was
then and there younger than 14 years of age and not the spouse of [appellant] by
[appellant's] sexual organ" (count two); (3) "with intent to arouse or gratify the sexual desire
of [appellant], intentionally or knowingly expose[d] [appellant's] genitals, knowing that
[B.H.], a child younger than 17 years of age and not [appellant's] spouse was present"
(count three); and (4) "with intent to arouse or gratify the sexual desire of [appellant],
intentionally or knowingly cause[d] [G.A.], a child younger than 17 years of age and not the
spouse of [appellant] to engage in sexual contact by causing [G.A.] to touch the genitals
of [appellant]" (count four).
	The State offered the testimony of, among others:  G.A., Dawn Cramer, a former
"forensic interviewer" with the Nueces County Children's Advocacy Center; Kimberly
Aguilar, G.A.'s mother; Carol McLaughlin, a forensic nurse with Driscoll Children's Hospital;
Linda Holder, B.H.'s mother; and B.H.  Appellant testified on his own behalf.  After hearing
the evidence, the jury found appellant guilty of the four counts.  Appellant was sentenced
to concurrent sentences of seventy-five years' confinement for each count of aggravated
sexual assault, ten years' confinement for indecency with a child by exposure, and fifteen
years' confinement for indecency with a child by contact.  This appeal ensued.
II.  The Evidence
	G.A. testified that she was thirteen and had three sisters.  G.A. stated that her
biological father had died in an automobile accident five years before appellant's trial. 
According to G.A., her mother, Kimberly, began dating appellant approximately one year
after her father died.  G.A. stated that appellant eventually moved into her home.
	G.A. testified that on one occasion when she was nine, appellant asked her to go
into her "sister's" room and he "dropped [G.A.'s] pants and his and, like touched [G.A.] with
his fingers in her private area."  G.A. stated that she did not tell anyone what had
happened and that "[i]t just started happening, like, maybe twice a week or, you know,
sometime like that."  G.A. testified that appellant smelled like alcohol when this happened
and that appellant acted "[l]ike he didn't know what was going on; like drunk supposedly."
	According to G.A., she and appellant told Kimberly what had happened and that
Kimberly started crying and "decided that [appellant] needed rehab." (3)  G.A. stated
appellant then left for approximately eight or nine months to attend "rehab."  G.A. testified
that appellant returned from "rehab" in December of 2005, and approximately a week later,
"things got more serious."  According to G.A., appellant "started doing that, what he did
before, again and--but this time he used his private. . . .  He would touch [G.A.] with [his
penis] in [her] butt or [her] middle area."  When asked what parts appellant would touch
with his penis, G.A. responded, "My cookie, like, my middle and my butt."  G.A. clarified
that she called her "private part" her "middle" and the area where she poops, her "butt." 
According to G.A., appellant put his penis "in and out in [her] front and back areas" and
that it felt uncomfortable and "for some reason, [her] insides would hurt like [appellant]
broke something kind of."
	The State asked G.A. if she remembered whether appellant ever did "anything with
his fingers", and G.A. responded, "He used to lick his fingers and, like, touch his private
area, like, to get it wet or something like that, and then, like, touch me with his private
area."  The following colloquy between the State and G.A. occurred:
	[The State]:	Okay.  And when you're saying your "private area"; you're
talking about . . .

	[G.A.]:	My cookie and my butt.

	[The State]:	Your cookie and your butt both.  Did he ever use his fingers?

	[G.A.]:	No.

	[The State]:	To go inside you.

	[G.A.]:	He used to, like, rub my cookie with his fingers.

	G.A. testified that she and B.H. would spend the night at each other's houses and
that in February, during the "stock show week," B.H. spent the night at her house on a
Wednesday and Thursday. (4)  On that Wednesday, B.H. and G.A.'s sister, Z.A., were at
home alone and the three girls "were kind of being nosey" and found some "Girls Gone
Wild" video tapes underneath the bed in her mother's bedroom.  According to G.A., the
girls watched approximately five minutes of the tape, but because it was "gross," they
turned it off and watched "regular T.V."  G.A. explained that the tape was "nasty."  G.A.
stated that she was in fourth grade and ten years old when this incident occurred.
	G.A. testified that later that day, appellant drove her and B.H. to B.H.'s house to
"pick up the bikes to ride bikes."  According to G.A., appellant began talking about the
tapes and "said that he wanted to, like, see more . . . ."  G.A. explained that appellant
found out that they watched the tapes because he noticed that the tapes were out of order. 
G.A. stated that appellant asked her and B.H. if they felt anything "weird" or if they got
"wet."
	According to G.A., on Thursday, appellant "called" her and B.H. "into the room" and
showed the girls certain parts of a video tape of a man and woman having sex.  The State
then had the following exchange with G.A.:
	[The State]:	How?  What kind of sex?

	[G.A.]:	Like doggy-style kind of.

	[The State]:	Okay.

	[G.A.]:	And, like regular, like, on-top-of-each-other style kind of.

		. . . .

	[The State]:	Okay. And so is that what he had been doing with you?

	[G.A.]:	Not doggy-style but the laying-on-top-of-each-other way.

	[The State]:	Okay.  Well, didn't you tell the jury a minute ago that he had
put his private in you?

	[G.A.]:	Yes.  But when he put it in my butt, I would be on my side and
he'd be behind me laying side to side.

	G.A. testified that after appellant showed them certain parts of the video, the girls
went to lie down in G.A.'s room.  G.A. stated that she and B.H. were talking while Z.A. slept
in the room.  According to G.A., appellant "came into the room and said, 'Did you like the
video,'" and asked the girls if they wanted "to see what sperm looked like."  G.A. stated that
they "shrugged" and then appellant "pulled out his middle part and started . . . what do you
call it?  Doing this (gesturing). . . .  He started doing this, and he gave me one of those,
like, looks . . . like, you know, do you want to try it or something."  G.A. testified that she
"started doing it" because she did not know what would happen if she refused.  G.A. stated
that eventually "sperm" came out and landed on her hand and on appellant's pants. 
According to G.A., appellant told the girls not to tell anyone what had happened and that
she "made" B.H. promise not to tell anyone about the incident because G.A. was not sure
what would happen if they told someone.  On Friday, B.H. was sick, so her mother took her
home.  When G.A. saw B.H. at school the following week, B.H. informed G.A. that she had
told her mother what had happened.
	G.A. stated that after B.H.'s mother reported the incident, G.A. went to talk to "a
lady" and told her what had happened and then G.A. went to Driscoll Children's Hospital,
where G.A. was given an examination of her "middle area."  G.A. testified that she then
began seeing a counselor.
	B.H. testified that two years and three months prior to appellant's trial, she went to
spend the night at G.A.'s house on a Wednesday. (5)  According to B.H., she and G.A.
watched a video tape called "Girls Gone Wild," and that it was "nasty," so they stopped
watching it.  B.H. stated that on Thursday, appellant drove the girls to B.H.'s house to get
her bike and more clothes and that en route, the girls told appellant that they had watched
the "Girls Gone Wild" video tape.  B.H. testified that later, appellant showed the girls a
"clip" of a "sex tape" in his bedroom. (6)  The girls went to G.A.'s bedroom where Z.A. was
asleep and began watching a movie.  According to B.H., appellant went into G.A.'s
bedroom, sat on G.A.'s bed, "rolled down his pants," asked the girls if they "wanted to see
a real one," and "took out his private."  B.H. stated that appellant then asked the girls if
they wanted to "see sperm" and "started rubbing it."  B.H. testified that appellant asked if
the girls wanted to touch "it," and B.H. said "no" but G.A. said "she didn't care."  According
to B.H., G.A. then "started rubbing it" and "sperm came out."  B.H. said that appellant told
her not to tell anyone about the incident.  B.H. stated that her mother picked her up on
Friday because she had a fever.
	B.H. testified that she had planned on keeping the incident a secret, but that her
mother "kind of got it out of [her]."  After B.H. told her mother about the incident with
appellant, B.H.'s mother reported it to police.
	Kimberly testified that, in 2004, while on a "trail ride," appellant went to sleep
between G.A. and Kimberly and that G.A. "kept squirming."  When she asked appellant
what he was doing to G.A., appellant said that he was not doing anything.  On cross-examination, Kimberly stated that appellant told her he was "pinching" G.A.  Because G.A.
kept squirming, Kimberly decided to sleep between G.A. and appellant.
	Kimberly stated that in March 2005, G.A. told her that appellant "tried to put
something in her bottom"; however, Kimberly did not call CPS or the police because she
wanted to ask appellant about it.  According to Kimberly, when she asked appellant about
the incident, he told her that "he never could have done that" or "hurt" G.A.  Kimberly
recalled that appellant told her he was having "blackouts," but "he would never hurt [G.A.]." 
That week, appellant went to court and then went into "rehab."  Appellant was in "rehab"
from June 2005 until January 2006; however, appellant was allowed furloughs starting in 
December 2005.
	Then in February 2006, G.A. informed Kimberly that she and B.H. had watched the
"Girls Gone Wild" video tape. (7)  After appellant was arrested, Kimberly asked G.A. if
appellant had done anything to her again, and while "point[ing] down there," G.A. said "that
[appellant] had been touching her."
	Linda testified that her daughter, B.H., had spent Wednesday night and Thursday
night at G.A.'s house in February. (8)  Linda stated that she had "an overwhelming feeling"
that "something was wrong with [B.H.]," so on Sunday she went for a walk with B.H. so that
they could talk."  When Linda "shared" a story about a family that B.H. knew to
demonstrate that sometimes people are not "always good," B.H. informed her that she and
G.A. had watched the "Girls Gone Wild" video tape.  According to Linda, B.H. explained
that when appellant found out they had watched the video, appellant told the girls "it was
time for them to learn about sex."  Linda stated that B.H. told her that after the girls had
ridden their bikes, "at some point" appellant showed the girls another video tape and said
that "when girls begin to get pubic hair, they're ready for sex."  According to Linda, B.H.
stated "that evening while [B.H.] and [G.A.] were in [G.A.'s] bedroom, [appellant] came in
there and asked them if they wanted to see a real one referring to his penis."
	Linda testified that B.H. told her that appellant then "exposed" himself and asked
if they wanted to see sperm.  B.H. informed Linda that appellant then "rubbed himself--"
and that G.A. also "rubbed him."  According to Linda, appellant told B.H. that she needed
to keep the incident a secret because if someone found out, appellant would go to jail. 
Linda called the police.
	McLaughlin testified that she performs an examination of a child victim of a sexual
assault either under an "acute situation," wherein "something had happened within three
to four days," or in a situation wherein "something happened a month, two months, a year,
three years ago."  If the situation is not "acute," an appointment is set up for the forensic
nurse's examination of the child.  According to McLaughlin, it is important to examine the
child as soon as possible because she collects evidence for law enforcement, which "can
be collected within that ninety-six-hour period of time" and "the sexual organ heals very
quickly.  So injuries will heal within three to four days."  McLaughlin explained that "it's kind
of important for us to see them in the beginning so that we can check and make sure there
isn't an injury because a month, two months, three months down the line, that injury could
have healed completely so we're not going to find an injury."
	McLaughlin examined G.A. on February 10, 2006.  McLaughlin stated, "The first part
of the examination is [to] obtain a history from the child" and that she "needs" to know what
part of the body was touched or hurt, so that she can determine if there is an injury.  The
history that McLaughlin acquires is documented "word for word" in the child's words "so
that [McLaughlin] can treat her."  G.A. told McLaughlin:
	["]My stepdad [appellant], he used to touch me on and in my private.["]  And
she indicated her female sexual organ by pointing. ["]He would take his
hands and put them in my private.  He would put his hands on my boobs.  He
would put his private in my butt,["] and she indicated her anus by pointing.
["]He would ask me to touch his private.  I would.  White stuff came out and
would go on my hands.  This happened more than once.["]

McLaughlin stated that she did not collect any forensic evidence from G.A. because the
incidents G.A. described had not occurred recently.  McLaughlin conducted a "detailed
genital examination," which is an examination of the female sexual organ utilizing a
colposcope, which is a "microscope that magnifies up to thirty times," allowing McLaughlin
to "look very closely at that part of the body for injuries."  McLaughlin also utilized the
colposcope to examine G.A.'s anus.  McLaughlin stated that she did not find any injuries
to G.A.'s female sexual organ or anus and that "[e]verything looked perfectly normal."  On
cross-examination, McLaughlin acknowledged that normal findings were "consistent with
something not occurring" and "with [a child] not being sexually assaulted."
	Cramer testified that she interviewed G.A. at the Children's Advocacy Center. 
Cramer stated G.A.:
	opens up saying that [appellant] had touched her on her . . . "boobs."  She
says "boobs" indicating breasts.  Later she circles the breast area and says
that's what she calls them as "boobs."  And then we start talking about--ask
her if other things happened and she said that--she starts talking about
how . . .  I'm trying to remember exact words 'cause there was alot [sic] said
during the interview.  How he [appellant] puts a stick-like, something that was
"stick-like" she calls it in her anal area.  She does not call it "anal area"; she
calls it, if I'm not mistaken, "booty."

Cramer said that G.A. then told her about the incident that occurred when B.H. spent the
night at G.A.'s house.
	Appellant testified that he left for "rehab" approximately in June 2005.  Appellant
denied that before going to "rehab," he told Kimberly that he "molested" G.A. or "put
"anything" in G.A.'s anus.  When asked if he "ever put anything" in G.A.'s vagina or anus,
appellant responded, "No."  Appellant stated that G.A. and B.H. "made up" the allegations
against him and that he had never touched a child inappropriately.
	Appellant related that on an unknown date, B.H. spent the night and that after he
went to sleep, G.A. woke him up and said that she was going to get in trouble for watching
a movie.  According to appellant, he did not know what G.A. meant by that comment and
told her to leave and let him get some sleep.  Appellant testified that he began to worry that
the girls had watched the movies he had under the bed, so he could not go back to sleep. 
Appellant told G.A. to come back, and G.A. said that Z.A., G.A.'s youngest sister, had told
Kimberly that they had watched the movies.  Appellant stated he then asked G.A. what
movies she was talking about and she said the movies that were under the bed.  Appellant
said, "First thing that [came] to my mind was my probation, okay, 'cause I was trying so
hard to not get in any more trouble." (9)  Appellant testified that he told Kimberly that the girls
had watched the video and that Kimberly already knew because Z.A. had told her. 
Appellant believed that Kimberly "didn't even care about it."
	Appellant stated that he was so worried about getting in trouble, he told Kimberly
that he was going to call B.H.'s mother, but that Kimberly asked him not to do that
because, in a small town, people would find out.  According to appellant, he called B.H.'s
mother and asked her to pick up B.H. because B.H. said that her stomach hurt; however,
appellant did not inform B.H.'s mother that the girls had watched the video tape.  Appellant
was not sure when B.H. left, but B.H. eventually called the house.  When he heard G.A.
talking to B.H., he asked to speak to B.H. and told her he needed to talk to her mother and
report that she had watched that video.  B.H. told him that her mother was not at home. 
Appellant stated that he asked B.H. to promise not to tell anyone that they watched the
video because "it was going to get out in this small town."
III.  Sufficiency of the Evidence
	By his first issue, appellant contends that the evidence is legally and factually (10)
insufficient to support the jury's verdict because the jury relied on the testimony of "two
children about 12-13 years old about something that happened when they were just 10,
without DNA or medical evidence." (11)  According to appellant, "[t]he jury likely assumed his
guilt and convicted him without any corroborating or independent eyewitness testimony to
support the verdict."
A.  Standard of Review
	In conducting a legal sufficiency review, we view the relevant evidence in the light
most favorable to the verdict to determine whether a rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt. (12)  We do not reevaluate
the weight and credibility of the evidence, and we do not substitute our own judgment for
the trier of fact. (13)  Instead, we consider whether the jury reached a rational decision. (14)
	In a factual sufficiency review, we review the evidence in a neutral light to determine
whether the evidence is so weak that the jury's verdict seems clearly wrong and manifestly
unjust or against the great weight and preponderance of the evidence. (15)  This Court will not
reverse the jury's verdict unless we can say, with some objective basis in the record, that
the great weight and preponderance of the evidence contradicts the verdict. (16)
B.  Analysis
	G.A. testified that when appellant returned to the home from "rehab," he put his
penis "in and out" of her "front and back areas" and that it hurt and felt as if something had
broken.  G.A. also stated that appellant "rubbed" her "cookie" with his fingers.  After
appellant was arrested, G.A. told Kimberly that appellant had been "touching her" while she
pointed "down there."  In her report, McLaughlin stated that, while pointing at her female
sexual organ, G.A. reported that appellant "used to touch" her "on and in [her] private." 
Cramer testified that G.A. told her that appellant put a "stick-like" object in her "booty."
	G.A. testified that when B.H. spent the night at her house, appellant came into her
room, exposed his penis, and she "rubbed" appellant causing "sperm" to come out of his
penis.  G.A. stated that B.H. witnessed the act.  B. H. testified that appellant "took out his
private" and "started rubbing it."  According to B.H., G.A. "rubbed" appellant's penis until
"sperm came out."  B.H. stated that appellant made her promise not to tell anyone about
the incident.  Linda testified that B.H. informed her that appellant had exposed his penis
and rubbed it in front of G.A. and B.H.  B.H. also told Linda that G.A. "rubbed" appellant's
penis.
	Appellant argues that there was no corroborating or medical evidence presented to
support G.A.'s and B.H.'s testimony; however, the testimony of a child sexual abuse victim
alone is sufficient to support a conviction for aggravated sexual assault and indecency with
a child. (17)  Therefore, viewing the evidence in the light most favorable to the verdict, we
conclude that a rational trier of fact could have found beyond a reasonable doubt that
appellant committed the offenses of aggravated sexual assault and indecency with a child
by exposure and contact. (18)  Furthermore, viewing the evidence in a neutral light, we cannot
conclude that the evidence is so weak that the jury's verdict seems clearly wrong and
manifestly unjust or against the great weight and preponderance of the evidence. (19)  We
conclude that the evidence is legally and factually sufficient.  We overrule appellant's first
issue.
IV.  Ineffective Assistance of Counsel
	By his second issue, appellant contends that his trial counsel rendered ineffective
assistance by failing to present the testimony of an expert witness "to dispute that sexual
assaults as the State alleged cannot be supported by the medical evidence." (20)
A.  Standard of Review and Applicable Law
	Ineffective assistance of counsel claims are evaluated under the two-part test
articulated by the Supreme Court in Strickland v. Washington. (21)  The Strickland test
requires the appellant to show that counsel's performance was deficient, or in other words,
that counsel's assistance fell below an objective standard of reasonableness. (22)  Assuming
appellant has demonstrated deficient assistance, he must then show that there is a
reasonable probability that, but for counsel's errors, the result would have been different. (23) 
In determining the validity of appellant's claim of ineffective assistance of counsel, "any
judicial review must be highly deferential to trial counsel and avoid the deleterious effects
of hindsight." (24)
	The burden is on appellant to prove ineffective assistance of counsel by a
preponderance of the evidence. (25)  Appellant must overcome the strong presumption that
counsel's conduct fell within the wide range of reasonable professional assistance and that
his actions could be considered sound trial strategy. (26)  A reviewing court will not
second-guess legitimate tactical decisions made by trial counsel. (27)  Counsel's effectiveness
is judged by the totality of the representation, not by isolated acts or omissions. (28)
B.  Analysis
	An allegation of ineffectiveness must be firmly founded in the record, and the record
must affirmatively demonstrate the alleged ineffectiveness. (29)  Here, the record is silent
regarding trial counsel's reason for not securing an expert witness.  Therefore, appellant
has not overcome the strong presumption that counsel's conduct fell within the wide range
of reasonable professional assistance and that his actions could be considered sound trial
strategy. (30)  Moreover, "[c]ounsel's failure to call witnesses at the guilt-innocence and
punishment stages is irrelevant absent a showing that such witnesses were available and
appellant would benefit from their testimony." (31)  Appellant makes no such showing. (32) 
Therefore, appellant has not met his burden to prove ineffective assistance of counsel by
a preponderance of the evidence. (33)  We overrule appellant's second issue. (34)
V.  Exclusion of Evidence
	By his third issue, appellant contends that the trial court erroneously excluded the
testimony of Aaron James Terry. (35)  Appellant argues that if allowed, Terry's testimony
would have "caused some doubt on the credibility of [Linda], the mother of [B.H.] who first
made a statement against [appellant]."
A.  Standard of Review and Applicable Law
	We review a trial court's decision to admit or exclude evidence under an abuse of
discretion standard. (36)  We will uphold the trial court's ruling if the record reasonably
supports the ruling, and the ruling is correct under any theory of law applicable to the
case. (37)
	There are limitations pursuant to the rules of evidence regarding introducing
extraneous acts for purposes of attacking a witness's credibility. (38)  Specifically, rule 608(b)
states that "specific instances of the conduct of a witness, for the purpose of attacking or
supporting the witness' credibility, other than conviction of crime as provided in Rule 609,
may not be inquired into on cross-examination of the witness nor proved by extrinsic
evidence." (39)
B.  Analysis
	The State filed a motion in limine seeking to exclude Terry's testimony under Texas
Rules of Evidence 608, 613(b), 401, 402, and 403.  At trial, appellant argued that the trial
court should deny the State's motion because "a wider latitude on impeachment should be
granted on the defense regarding witnesses" and that "if a witness has engaged in the
same kind of conduct that they are testifying in [sic] at trial against . . . involving that very
same type of charge that that's absolutely relevant to their credibility . . . ."  The trial court
held a hearing outside the presence of the jury, wherein Terry testified that in 2003, when
he was fourteen, in an unrelated case, Linda allegedly engaged in illegal conduct but was
not arrested or convicted. (40)  Citing rule 608, the trial court granted the State's motion and
excluded Terry's testimony.
	Appellant sought admission of Terry's testimony regarding Linda's alleged prior act
for the sole purpose of impeaching Linda's credibility.  It was proper for the trial court to
exclude that evidence because under rule 608, a witness's credibility may not be attacked
by offering extrinsic evidence concerning specific prior instances of conduct, other than a
conviction under rule 609, which is not applicable here. (41)  Therefore, we conclude that the
trial court did not abuse its discretion and overrule appellant's third issue.
VI.  Trial Court's Bias
	By his fourth issue, appellant contends that the trial court was biased against
defense counsel and "showed prejudice against them, conducting the trial in a hostile
environment which violated [his] rights to a fair trial."  Specifically, appellant states that the
"trial court made outrageous comments and was argumentative with defense counsel." 
Appellant complains of the following:
	1.	Referring to whether the State can bring in allegations from 2004 in
a trial over indictment from 2006--prior allegations never charged [the
trial court stated]:
 
		(a)	"Well I guess you take that chance 'cause [sic] I don't know the
law and we're not briefing that today."
 
		(b)	"I have no clue, don't know the research on it."[ (42)]
 
	2.	Commenting on Judge's lack of control over her courtroom:
 
		(a)	"[Defense counsel], I'm the boss.  You don't like me being the
boss; [the prosecutor] doesn't like me being the boss.  I'm the
boss of the courtroom and y'all [sic] aren't letting me be the
boss."
 
		(b)	"Y'all [sic] are running this courtroom and it's mine."
 
	3.	The judge committed improper conduct in treating defense counsel in
appropriately [sic] in front of the jury.  [Defense counsel] outside the
presence of the jury, complain[ed] as follows:
 
		"I have sat here and [co-defense counsel] have sat here for basically
two days now having you belittle us in front of the jury where we have
not commented on your actions.  All right?  Pointing your fingers at us
just like you did in front of the jury and basically demeaning the
defense team in front of the hometown jury.  That's improper."
 
	4.	After the testimony of [Terry], Counsel for the defense . . . asked the
court:
 
		[Defense counsel]:	Your Honor, while we're on the record, just make
a very brief statement about why we have
offered this.
 
		[Trial Court]:		Yes, sir.

		[Defense Counsel]:	I mean, I know--

		[Trial Court]:		You can't do anything briefly, but go ahead.

Appellant argues that based on the above examples, "[c]learly, the attorneys tried this case
in a hostile environment" as stated in Abdygapparova v. State. (43)
	Although appellant generally cites Abdygapparova, he has not provided a clear and
concise argument supporting his assertion that the trial court was biased and prejudiced. 
Nonetheless, 
	judicial remarks during the course of a trial that are critical or disapproving
of, or even hostile to, counsel, the parties, or their cases, ordinarily do not
support a bias or partiality challenge.  They may do so if they reveal an
opinion that derives from an extrajudicial source; and they will do so if they
reveal such a high degree of favoritism or antagonism as to make fair
judgment impossible.  An example of the latter (and perhaps of the former
as well) is the statement that was alleged to have been made by the District
Judge in Berger v. United States, 255 U.S. 22, 65 L. Ed. 481, 41 S. Ct. 230
(1921), a World War I espionage case against German-American
defendants:  "One must have a very judicial mind, indeed, not [to be]
prejudiced against the German Americans" because their "hearts are reeking
with disloyalty." Id. at 28 (internal quotation marks omitted).  Not establishing
bias or partiality, however, are expressions of impatience, dissatisfaction,
annoyance, and even anger, that are within the bounds of what imperfect
men and women, even after having been confirmed as federal judges,
sometimes display. A judge's ordinary efforts at courtroom
administration--even a stern and short-tempered judge's ordinary efforts at
courtroom administration--remain immune.[ (44)]

Furthermore, there is a presumption of judicial impartiality when reviewing whether
impermissible bias was present. (45)
	The record reveals that the jury was not present in each incident listed above,
except when the trial court stated, "Y'all [sic] are running this courtroom and it's mine." 
However, that comment was made at a bench conference when the trial court admonished
the State for asking an inappropriate question in front of the jury.  Furthermore, although
defense counsel generally complained to the trial court that it had "belittled" the defense
team in front of the jury, appellant did not specifically state which actions, other than
pointing her fingers at the defense team, the trial court did to "belittle" the defense team. (46)
	Here, none of the complained-of comments were directed at appellant or bore upon
the presumption of  his innocence. (47)  Rather, the allegedly improper statements were all
directly aimed at either the defense or the State and were mostly made outside the
presence of the jury.  Although the statements and gestures undoubtedly reveal the trial
court's frustration with appellant's trial counsel and the State, none go beyond the bounds
of expressions of dissatisfaction that imperfect people can sometimes express. (48)  In light
of the preceding, we cannot conclude that these exchanges, either separately or
collectively, demonstrate the type of impermissible bias that could violate an individual's
right to a fair trial.  We overrule appellant's fourth issue.
VII.  Conclusion
	We affirm the trial court's judgment.


Do not publish.	
Tex. R. App. P. 47.2(b)

Delivered and filed the
24th day of June, 2010.
1.  See Tex. Penal Code Ann. § 22.021(Vernon Supp. 2009).
2.  See id. § 21.11 (Vernon Supp. 2009).
3.  G.A. was unable to recall the date of this incident.
4.  G.A. clarified on cross-examination that the incident with B.H. occurred in 2006.
5.  B.H. stated that she was eleven at the time.
6.  B.H. clarified that this incident occurred on Thursday, February 2, 2006.
7.  On cross-examination, Kimberly stated that Z.A. told her that the girls had watched the video tape.
8.  On cross-examination, Linda clarified that the incident occurred in 2006.
9.  Appellant did not state why he was on probation.
10.  In his brief, appellant does not specifically state how the evidence is factually insufficient to support
the verdict.  See Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003) (providing "that in a factual
sufficiency review the court of appeals is required to consider the most important evidence that the appellant
claims undermines the jury's verdict" and is not required to "discuss all the evidence admitted at trial, but a
proper factual sufficiency review must include a discussion of the most important and relevant evidence that
supports the appellant's complaint on appeal").
11.  Appellant does not challenge the specific elements of the offenses which he was convicted of
committing.  A person commits the offense of aggravated sexual assault of a child "if the person intentionally
or knowingly . . . causes the penetration of the anus or sexual organ of a child by any means."  Tex. Penal
Code Ann. § 22.021.  A person commits the offense of indecency with a child by exposure if that person "with
a child younger than 17 years of age . . . with intent to arouse or gratify the sexual desire of any
person . . . exposes the person's anus or any part of the person's genitals knowing the child is present."  Id.
§ 21.11(a)(2)(A).  A person commits the offense of indecency with a child by contact if that person "with a child
younger than 17 years of age . . . engages in sexual contact with the child or causes the child to engage in
sexual contact."  Id. § 21.11(a)(1).
12.  Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson v. Virginia, 443 U.S. 307,
318-19 (1979); Powell v. State, 194 S.W.3d 503, 506 (Tex. Crim. App. 2006); Guevara v. State, 152 S.W.3d
45, 49 (Tex. Crim. App. 2004)); Escamilla v. State, 143 S.W.3d 814, 817 (Tex. Crim. App. 2004).
13.  King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000) (en banc); Beckham v. State, 29 S.W.3d
148, 151 (Tex. App.-Houston [14th Dist.] 2000, pet. ref'd).
14.  Beckham, 29 S.W.3d at 151.
15.  Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006).
16.  Id. at 417.
17.  Tex. Code Crim. Proc. Ann. art. 38.07 (Vernon 2005) (providing that "[a] conviction under Chapter
21, Section 22.011, or Section 22.021, Penal Code, is supportable on the uncorroborated testimony of the
victim of the sexual offense if the victim informed any person, other than the defendant, of the alleged offense
within one year after the date on which the offense is alleged to have occurred" and if the victim is under the
age of seventeen at the time of the alleged offense, "[t]he requirement that the victim inform another person
of the an alleged offense does not apply"); Ozuna v. State, 199 S.W.3d 601, 606 (Tex. App.-Corpus Christi
2006, no pet.) ("The testimony of a child sexual abuse victim alone is sufficient to support a conviction for
aggravated sexual assault.") (citing Tex. Code Crim. Proc. Ann. art. 38.07; Garcia v. State, 563 S.W.2d 925,
928 (Tex. Crim. App. 1978)); Connell v. State, 233 S.W.3d 460, 466 (Tex. App.-Fort Worth 2007, no pet.) ("A
complainant's testimony alone is sufficient to support a conviction for indecency with a child.") (citing Tex.
Code Crim. Proc. Ann. art. 38.07; Garcia, 563 S.W.2d at 928).
18.  See Hooper, 214 S.W.3d at 13; Escamilla, 143 S.W.3d at 817.
19.  See Watson, 204 S.W.3d at 414-15.
20.  In his second issue, appellant also urges this Court to "reverse this case for insufficiency of the
evidence . . . based on lack of medical verification of the alleged sexual assaults."  We have already
addressed this assertion in section III and concluded that the evidence is legally and factually sufficient to
support the verdict.
21.  See Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005) (citing Strickland v.
Washington, 466 U.S. 668, 687 (1984)); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999).
22.  Thompson, 9 S.W.3d at 812; see Strickland, 466 U.S. at 687.
23.  Thompson, 9 S.W.3d at 812; see Strickland, 466 U.S. at 694.
24.  Thompson, 9 S.W.3d at 813.
25.  Id.
26.  See Strickland, 466 U.S. at 689; Jaynes v. State, 216 S.W.3d 839, 851 (Tex. App.-Corpus Christi
2006, no pet.).
27.  State v. Morales, 253 S.W.3d 686, 696 (Tex. Crim. App. 2008) ("[U]nless there is a record sufficient
to demonstrate that counsel's conduct was not the product of a strategic or tactical decision, a reviewing court
should presume that trial counsel's performance was constitutionally adequate . . . .").
28.  Thompson, 9 S.W.3d at 813; Jaynes, 216 S.W.3d at 851.
29.  Bone v. State, 77 S.W.3d 828, 835 (Tex. Crim. App. 2002); Thompson, 9 S.W.3d at 814 (setting
out that "in the vast majority of cases, the undeveloped record on direct appeal will be insufficient for an
appellant to satisfy the dual prongs of Strickland"); see Jackson v. State, 877 S.W.2d 768, 771-72 (Tex. Crim.
App. 1994) (en banc) (stating that "we must presume that counsel is better positioned than the appellate court
to judge the pragmatism of the particular case, and that he made all significant decisions in the exercise of
reasonable professional judgment" and that "[d]ue to the lack of evidence in the record concerning trial
counsel's reasons" for the alleged ineffectiveness, the court was "unable to conclude that appellant's trial
counsel's performance was deficient" (internal quotations omitted)).
30.  See Strickland, 466 U.S. at 689; Jaynes, 216 S.W.3d at 851.
31.  King v. State, 649 S.W.2d 42, 44 (Tex. Crim. App. 1983).
32.  Ex parte McFarland, 163 S.W.3d 743, 758 (Tex. Crim. App. 2005) (concluding that the appellant
failed to show prejudice because he did not "show that the unknown witnesses were available to testify or that
their testimony would have benefitted him").
33.  Thompson, 9 S.W.3d at 813.
34.  We note that appellant generally asserts that "[t]rial counsel's deficient performance, falling well
below and [sic] acceptable standard totally undermines the confidence that the jury reached a proper and just
verdict"; however, he does not provide a clear and concise argument with citation to authority for this
assertion.  Therefore, he has waived it.  See Tex. R. App. P. 38.1(i).
35.  Appellant also complains that the trial court excluded evidence that "a family member of [G.A.] had
[allegedly] gone to prison for a similar offense."  However, appellant has not provided a clear and concise
argument with appropriate citations to authorities.  Therefore, appellant has waived this complaint.  See id.
36.  Ramos v. State, 245 S.W.3d 410, 417-18 (Tex. Crim. App. 2008).
37.  Id. at 418.
38.  See Tex. R. Evid. 608(b).
39.  Id.; see id. R. 609(a) ("For the purpose of attacking the credibility of a witness, evidence that a
witness has been convicted of a crime shall be admitted if elicited from the witness or established by public
record but only if the crime was a felony or involved moral turpitude, regardless of punishment, and the court
determines that the probative value of admitting this evidence outweighs its prejudicial effect to a party.").
40.  Terry testified that he did not report Linda's alleged improper conduct to the police.
41.  See id. R. 608(b); Billodeau v. State, 277 S.W.3d 34, 39-40 (Tex. Crim. App. 2009) ("Rule of
Evidence 608(b) provides that a witness's credibility may not be impeached with specific instances of the
witness's conduct other than a criminal conviction as provided in Rule 609(a).") (citing Tex. R. Evid. 608(b)).
42.  We note that appellant has taken these two comments out of context from three pages in the record
wherein the trial court explained to the State and defense that it was not aware of whether or not the State was
"barred" from prosecuting appellant for the extraneous offenses described by G.A. during appellant's trial if
he were found "not guilty."
43.  243 S.W.3d 191 (Tex. App.-San Antonio 2007, pet. ref'd).
44.  Liteky v. United States, 510 U.S. 540, 555-56 (1994).
45.  See Abdygapparova, 243 S.W.3d at 198.
46.  We note that on appeal, appellant points out that his trial counsel made the remark to the trial court;
however, he does not point to any instances in the record where the trial court actually pointed at his trial
counsel.
47.  See Jasper v. State, 61 S.W.3d 413, 421 (Tex. Crim. App. 2001) (providing that "a trial judge's
irritation at the defense attorney does not translate to an indication as to the judge's views about the
defendant's guilt or innocence").
48.  See Liteky, 510 U.S. at 555-56.
