                           NUMBER 13-12-00131-CR

                           COURT OF APPEALS

                THIRTEENTH DISTRICT OF TEXAS

                  CORPUS CHRISTI – EDINBURG

DAVID RODRIGUEZ ORTIZ,                                               Appellant,


                                       v.


THE STATE OF TEXAS,                                                  Appellee.


                  On appeal from the 139th District Court
                        of Hidalgo County, Texas.


                          MEMORANDUM OPINION
  Before Chief Justice Valdez and Justices Benavides and Longoria
             Memorandum Opinion by Justice Longoria
      By six issues, appellant David Rodriguez Ortiz challenges his conviction for

aggravated sexual assault of a child. See TEX. PENAL CODE ANN. § 22.021(a)(2)(B)

(West 2011). We affirm.
                                               I. BACKGROUND

          Appellant met S.M. on a “chat line” where people meet and talk with each other

on the phone. 1 S.M. told appellant that she was eighteen, but she was actually twelve

years old at the time. Appellant was twenty-four years old. S.M. testified at trial that

they continued to talk even after S.M.’s mother sent a text message to appellant

informing him of her daughter’s actual age. Several months later, S.M. and appellant

met in person at a movie theater in Pharr, Texas. S.M. was accompanied by her sister,

Elizabeth, and their cousin. Appellant later moved to Virginia and S.M. followed him

without her mother’s permission. Appellant was later arrested on Virginia state charges

for having sex with S.M. S.M.’s mother brought S.M. back to Texas and brought her to

the police to give a statement. S.M. told the police that she had sex with appellant as

many as twenty times, both in Texas and in Virginia. Elizabeth also gave a statement to

the police that appellant would often pick up S.M. at their house, that appellant and S.M.

spent the night together at the house of S.M.’s cousin, and that Elizabeth had observed

appellant and S.M. “kissing and hugging” at least once when all three of them had gone

out together.

          The State indicted appellant on two counts of aggravated sexual assault of a

child, see id., and extradited him from Virginia. The State later dismissed the first

charge before trial. At trial, S.M. and Elizabeth denied almost all of their statements to

the police.     The State moved for and received permission to treat both S.M. and

Elizabeth as hostile witnesses and proceeded to impeach them with their statements to

police.


          1
           In order to protect the privacy of the minor complainant, we will refer to her by her initials and
her sister by the fictitious name of “Elizabeth.”

                                                     2
          After the State rested, appellant moved for a directed verdict on the grounds that

there was no evidence that the offense occurred in Texas.             The trial court denied

appellant’s motion. Appellant’s lawyer rested without calling any witnesses or putting on

any evidence. The judge submitted the case to the jury, which returned a verdict of

guilty.     The jury imposed a sentence of five years’ imprisonment in the Texas

Department of Criminal Justice—Institutional Division. See id. § 12.32(a) (West 2011).

Appellant filed a motion for new trial which was overruled by operation of law. See TEX.

R. APP. P. 21.8(c). This appeal followed.

                                           II. DISCUSSION

             A. Admission of Impeachment Evidence

          By his first issue, appellant argues that the trial court erred by allowing S.M. and

Elizabeth to testify because the State knew that both would not testify in the State's

favor, and was just using their testimony as a subterfuge to put the witnesses’

statements, which he argues would otherwise be inadmissible hearsay, in front of the

jury. However, appellant does not direct us to any point in the trial record where he

objected to the testimony of either witness. See TEX. R. APP. P. 33.1(a). The Texas

Court of Criminal Appeals has “consistently held that the failure to object in a timely and

specific manner during trial forfeits complaints about the admissibility of the evidence.”

Saldano v. State, 70 S.W.3d 873, 889 (Tex. Crim. App. 2002).                Accordingly, we

conclude that appellant has forfeited the error, if any, in permitting the two witnesses to

testify. See id.; Barley v. State, 906 S.W.2d 27, 37 (Tex. Crim. App. 1995) (holding that

appellant forfeited the same claim as in this case by failing to object at trial). We

overrule appellant’s first issue.



                                               3
           B. Sufficiency of the Evidence

       By his second and third issues, appellant challenges whether the evidence is

legally sufficient to support a finding that appellant penetrated S.M.’s vagina with his

sexual organ. 2

                   1. Standard of Review and Applicable Law

       In a legal sufficiency review, “a reviewing court views all of the evidence in the

light most favorable to the verdict to decide whether any rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt.” Garcia v. State,

367 S.W.3d 684, 686–87 (Tex. Crim. App. 2012) (citing Jackson v. Virginia, 443 U.S.

307, 319 (1979)). “The reviewing court must give deference to the responsibility of the

trier of fact to fairly resolve conflicts in testimony, to weigh the evidence, and to draw

reasonable inferences from basic facts to ultimate facts.” Hooper v. State, 214 S.W.3d

9, 13 (Tex. Crim. App. 2007) (citing Jackson, 443 U.S. at 318–19). This same standard

applies to both circumstantial and direct evidence because “circumstantial evidence is

as probative as direct evidence in establishing the guilt of an actor, and circumstantial

evidence alone can be sufficient to establish guilt.” Id. (citing Guevara v. State, 152

S.W.3d 45, 49 (Tex. Crim. App. 2004)).            If the record supports conflicting inferences,

we presume that the fact finder resolved the conflict in favor of the prosecution and

defer to that resolution. Garcia, 367 S.W.3d at 687; Brooks v. State, 323 S.W.3d 893,

899 (Tex. Crim. App. 2010) (plurality op.).




       2
         Appellant’s second issue challenges whether the evidence is sufficient to show that S.M. has
ever been vaginally penetrated. Because that is not an element of the offense, we understand appellant
as making the same argument that he does in his third issue, that there is no proof that appellant
penetrated S.M.’s vagina with his sexual organ.

                                                  4
      We measure the sufficiency of the evidence supporting a conviction by the

elements of the offense, which “are defined by the hypothetically correct jury charge for

the case,” applied to the particular facts of the case. Ramos v. State, 407 S.W.3d 265,

269 (Tex. Crim. App. 2013) (citing Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App.

1997)). “Such a charge would be one that accurately sets out the law, is authorized by

the indictment, does not unnecessarily increase the State's burden of proof or

unnecessarily restrict the State's theories of liability, and adequately describes the

particular offense for which the defendant was tried.” Malik, 953 S.W.2d at 240. In this

case, the hypothetically correct jury charge for the offense required the State to prove

beyond a reasonable doubt that appellant: (1) intentionally or knowingly; (2) caused the

penetration of S.M.’s vagina; (3) by his own sexual organ; (4) when she was younger

than fourteen years of age. See TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(i), (2)(B);

Ozuna v. State, 199 S.W.3d 601, 606 (Tex. App.—Corpus Christi 2006, no pet.).

      “Courts give wide latitude to testimony given by child victims of sexual abuse.”

Reckart v. State, 323 S.W.3d 588, 598 (Tex. App.—Corpus Christi 2010, pet. ref’d).

The testimony of a child complainant standing alone is sufficient to support a conviction

for aggravated sexual assault of a child. TEX. CODE CRIM. PROC. ANN. art. 38.07(a)

(West Supp. 2013). Child complainants are “not expected to testify with the same

clarity and ability as is expected of a mature and capable adult.” Hiatt v. State, 319

S.W.3d 115, 121 (Tex. App.—San Antonio 2010, pet. ref’d) (citing Villalon v. State, 791

S.W.2d 130, 134 (Tex. Crim. App. 1990)). The child need not testify about penetration,

which the State can prove from circumstantial evidence, but “the testimony of a child

victim alone is sufficient evidence of penetration to support a conviction.” Ozuna, 199



                                           5
S.W.3d at 606 (citing Villalon, 791 S.W.2d at 134).                Even if the child recants the

allegations, “the jury is entitled to credit the earlier allegations and disbelieve the

recanted testimony.” Reckart, 323 S.W.3d at 598 (citing Saldana v. State, 287 S.W.3d

43, 60 (Tex. App.—Corpus Christi 2008, pet. ref’d)).

                   2. Analysis

       Appellant argues that the evidence is insufficient to prove that he penetrated

S.M.’s vagina with his sexual organ. Appellant argues that S.M.’s testimony where she

denied that appellant ever had sex with her and also denied that she even knew the

meaning of the word “sex” establishes that the evidence is insufficient for a rational jury

to conclude that S.M. ever had sex with anyone, much less with appellant. 3 Appellant’s

argument takes a portion of S.M.’s testimony out of context and ignores other parts of

her testimony, as well as other evidence that was before the jury.                    S.M. admitted

elsewhere in her testimony that she told the police that appellant had sex with her up to

twenty times and that appellant did not wear a condom during sex. Additionally, the jury

heard testimony from Elvia Munguia, a sexual assault nurse examiner who performed a

physical exam on S.M., that S.M. stated that appellant had sex with her at least ten

times and that she had never had sex with any other person. Munguia also testified that

she observed during the physical exam that S.M.’s hymen was partially transacted.

Munguia testified that this means that “[t]here has been some type of sexual

penetration.” Even though S.M. did not directly testify as to penetration, a rational jury

could infer from the foregoing that S.M. understood the term “sex” in this context as

referring to penetration of the vagina with the male sexual organ, and that appellant had


       3
         After receiving permission to treat S.M. as a hostile witness, the State asked: “what does the
word ‘sex’ mean to you?” S.M. responded: “I don’t know.”

                                                  6
sex with her multiple times. See Ozuna, 199 S.W.3d at 606 (citing Villalon, 791 S.W.2d

at 134) (observing that the State can prove penetration by circumstantial evidence).

S.M. recanted her statement to police at trial and in the words of appellant was “not a

willing witness,” but the jury was entitled to disbelieve her recantation and credit her

previous statements. See Reckart, 323 S.W.3d at 598; Saldana, 287 S.W.3d at 60. We

conclude that there was sufficient evidence for the jury to find that appellant (1)

intentionally or knowingly (2) penetrated S.M.’s vagina; (3) with his sexual organ; (4)

when S.M. was less than fourteen years old.              See TEX. PENAL CODE ANN.

§ 22.021(a)(1)(B)(i), (2)(B). We overrule appellant’s second and third issues.

          C. Whether the Offense Occurred in Hidalgo County, or in the
             Boundaries of Texas

      By his fourth and fifth issues, appellant challenges the sufficiency of the evidence

to prove that the offense occurred in Hidalgo County or that it occurred in Texas at all.

Appellant frames these two issues as a challenge to the sufficiency of the evidence

supporting an element of the offense. However, the question of whether the offense

occurred in Hidalgo County as alleged in the indictment is really an issue of venue,

which is not an essential element of an offense and which the State need only prove by

a preponderance of the evidence. State v. Blakenship, 170 S.W.3d 676, 681 (Tex.

App.—Austin 2005, pet. ref’d) (citing TEX. CODE CRIM. PROC. art. 13.17 (West 2005)).

We are to presume that venue was proved in the trial court unless the defendant

objected or the record affirmatively shows to the contrary. TEX. R. APP. P. 44.2(c)(1).

The question of whether the offense occurred in the State of Texas at all is a question of

jurisdiction because Texas courts generally only have the authority to try persons for

criminal offenses committed within the territorial boundaries of the state.      Ex parte

                                            7
Watson, 601 S.W.2d 350, 352 (Tex. Crim. App. 1980); see TEX. PENAL CODE ANN.

§ 1.04(a) (West 2011) (discussing the territorial jurisdiction of Texas courts).

       The evidence establishes that the offense took place in Texas, see Ex parte

Watson, 601 S.W.2d at 352, and the record does not affirmatively negate that venue

was proper in Hidalgo County. See TEX. R. APP. P. 44.2(c)(1). Although S.M. testified at

one point that appellant only had sex with her in Virginia, she also admitted in her

testimony that she told the police that appellant had sex with her in his truck across from

her house, and that they also had sex at S.M.’s cousin’s house. S.M. testified that her

cousin lives on the same street as S.M., but that she did not know in which county the

street is located. However, S.M.’s mother testified that they live in Edinburg, and it is

undisputed that Edinburg is in Hidalgo County, Texas. A reasonable jury could have

chosen to disregard S.M.’s recantations and credit her previous statements.           See

Reckart, 323 S.W.3d at 598; see also Land v. State, 291 S.W.3d 23, 26–27 (Tex.

App.—Texarkana 2009, pet. ref’d) (holding that there was sufficient evidence that

appellant had sex with the minor complainant in the county alleged in the indictment,

when the minor first denied at trial that they had sex at her house in Bowie County, and

then admitted “in the same breath” that she had sex with him at her house).

Accordingly, we overrule appellant’s fourth and fifth issues.

          D. Ineffective Assistance of Counsel

       By his sixth issue, appellant argues that his trial counsel performed ineffectively

in violation of his rights under the state and federal constitutions.




                                              8
             1. Standard of Review and Applicable Law

      We evaluate claims of ineffective assistance under the standards set forth by the

United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 687 (1984).

See Jaynes v. State, 216 S.W.3d 839, 851 (Tex. App.—Corpus Christi 2006, no pet.).

Under the Strickland standard, appellant must show by a preponderance of evidence

that: (1) trial counsel’s    representation fell below an objective         standard    of

reasonableness; and (2) there is a reasonable probability that the result of the

proceeding would have been different but for the attorney’s deficient performance.

Strickland, 466 U.S. at 687.    “A reasonable probability is a probability sufficient to

undermine confidence in the outcome.” Ex parte Ellis, 233 S.W.3d 324, 330–31 (Tex.

Crim. App. 2007). If an appellant fails to prove one prong of the test, we do not need to

address the other prong. See Strickland, 466 U.S. at 697; Garcia v. State, 57 S.W.3d

436, 440 (Tex. Crim. App. 2001).

      When evaluating the quality of trial counsel’s representation, we look to “the

totality of the representation and the particular circumstances of each case in evaluating

the effectiveness of counsel.” Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App.

1999). Even though “a single egregious error of omission or commission” can constitute

ineffective assistance, the Texas Court of Criminal Appeals has been hesitant to

designate any particular error as ineffective assistance per se. Id. We apply “a strong

presumption that counsel's conduct fell within the wide range of reasonable professional

assistance.” Id. Allegations of ineffectiveness must therefore be “firmly founded in the

record, and the record must affirmatively demonstrate the alleged ineffectiveness.” Id.

(citing McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996)). Direct appeal



                                            9
is usually inadequate to make an ineffectiveness claim because the record is frequently

undeveloped. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). This

is especially true where the claimed error is one of omission and “counsel's reasons for

failing to do something do not appear in the record.” Id. The Texas Court of Criminal

Appeals has explained that “trial counsel should ordinarily be afforded an opportunity to

explain his actions before being denounced as ineffective.” Rylander v. State, 101

S.W.3d 107, 111 (Tex. Crim. App. 2003) (citing Bone v. State, 77 S.W.3d 828, 836

(Tex. Crim. App. 2002)). Unless counsel had an opportunity to explain his trial strategy,

Texas appellate courts should “not find deficient performance unless the challenged

conduct was ‘so outrageous that no competent attorney would have engaged in it.’”

Goodspeed, 187 S.W.3d at 392 (quoting Garcia, 57 S.W.3d at 440).

               2. Analysis

       Appellant argues that his trial counsel was ineffective because counsel did not

object to the State calling S.M. as a witness even though the State called her “for the

sole purpose of impeaching the witness with evidence that would otherwise be

inadmissible.” Appellant also argues that trial counsel was deficient for not objecting to

the testimony of Munguia because it was hearsay, and the State had not laid the proper

predicate for admitting Munguia’s testimony. 4 However, the record is silent on trial

counsel’s strategy in not objecting to the testimony of both witnesses, and “unless 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.” State v. Morales, 253 S.W.3d 686, 696


       4
          Appellant does not argue that failing to object to Elizabeth’s testimony was ineffective
assistance.

                                               10
(Tex. Crim. App. 2008); see Rylander, 101 S.W.3d at 111. We overrule appellant’s

sixth issue.

                                       III. CONCLUSION

       We affirm the judgment of the trial court.




                                                    NORA L. LONGORIA
                                                    Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
30th day of December, 2013.




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