                                   NO. 07-02-0361-CR

                              IN THE COURT OF APPEALS

                        FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL A

                                    JULY 16, 2003
                           ______________________________


                             RUBEN A. CORTEZ, APPELLANT

                                            V.

                            THE STATE OF TEXAS, APPELLEE

                         _________________________________

               FROM THE 364TH DISTRICT COURT OF LUBBOCK COUNTY;

           NO. 2002-438943; HONORABLE BRADLEY S. UNDERWOOD, JUDGE

                          _______________________________

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


                                MEMORANDUM OPINION


          Following appellant Ruben Cortez’s plea of not guilty, a jury convicted him of

aggravated sexual assault and assessed punishment at five years confinement. In six

issues, appellant claims the evidence is legally and factually insufficient, and he was

denied effective assistance of counsel. Based upon the rationale expressed herein, we

affirm.
       Appellant and the victim lived together for approximately two and a half years prior

to the offense giving rise to this appeal. Together, they have a young son. Around 4:00

a.m. on December 8, 2001, the victim’s mother, Minnie Hernandez, awoke to the sound

of someone banging on the front door of her house and ringing the doorbell repeatedly.

When she answered the door, Ms. Hernandez discovered the victim, who acted “like she

was scared, like somebody was running from behind her.” The victim was crying and

upset and told Ms. Hernandez, “he [appellant] hurt me.” Ms. Hernandez immediately

transported the victim to the hospital where she was initially treated for injuries related to

the physical assault.      During the course of her treatment, however, the victim

acknowledged, “He [appellant] made me have sex with him.”


       After hearing the victim’s allegation, Carolyn Chisholm, the attending nurse, notified

law enforcement and the local rape crisis center shortly before 6:00 a.m. While waiting

for representatives from each of those agencies to arrive, Ms. Chisholm conducted a brief

interview of the victim. During the interview, the victim was “tearful,” “nervous,” “anxious,”

and “scared” and was shaking and crying as she spoke. The victim reported that the

trouble began around 3:00 that morning when she arrived at appellant’s and her home.

Appellant was upset because one of the victim’s male friends had telephoned her earlier

in the evening. At some point during their argument over the phone call, appellant

grabbed the victim’s head and began banging it on the carpet. He then kicked her, and

told her “he was going to kill her, . . . didn’t care if she died, that her mom could take care


                                              2
of their baby.” After the beating, appellant penetrated the victim’s vagina and rectum with

his penis. When asked by Ms. Chisholm whether the sexual intercourse was against her

will, the victim replied, “yes.” The victim explained she was too “scared to say anything”

and “didn’t tell him to stop because she was afraid he would hit her again.”


       Jana Prindle was the rape crisis counselor on call on the day of the offense. When

Ms. Prindle arrived at the hospital some time after 6:00 a.m., the victim was “hysterically

crying,” “very traumatized,” “shaking,” and “nervous.” Ms. Prindle and the responding

police officer interviewed her. They learned that, at some point earlier in the morning,

appellant grabbed the victim’s hair and smashed her head into a bed. During the assault,

appellant threatened to kill her and to take her baby away. The victim confirmed that

appellant penetrated her rectum, and she was “very insistent” the sexual encounter was

not consensual. Finally, the victim volunteered that she had never engaged in anal sex

before and did not want to participate in it on the night of the offense.


       Three days after the assault, Chris Bruenig, the detective assigned to investigate

the offense, phoned the victim and requested she provide a “full sworn statement” to be

included in the case file for the District Attorney’s office. At that time, the victim claimed

her sexual encounter with appellant three days before was consensual. She did not,

however, deny being physically assaulted by appellant.            When Bruenig contacted

appellant during the course of the investigation, he denied committing any assault against

the victim, physical or otherwise. Notwithstanding the victim’s recantation, Bruenig

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presented the case to the District Attorney’s office, and the grand jury returned a true bill

of indictment against appellant for aggravated sexual assault.


       Appellant testified at trial and admitted physically assaulting the victim.          He

explained, “I didn’t know what I was doing, and I just lost control of myself.” He claimed,

however, that once he “got out of that rage mode,” and he and the victim began talking,

he had no intention of ever touching her again. Appellant acknowledged he intentionally

and knowingly caused the penetration of the victim’s anus and used force and violence

against her. He maintained, however, that the sexual encounter with her was consensual.


       During the State’s case in chief at trial, the victim testified that her sexual relations

with appellant on December 8, 2001 were consensual. The victim explained she initially

performed oral sex on appellant, and then voluntarily engaged in vaginal and anal

intercourse with him. She also claimed to have engaged in anal sex with appellant before

the day of the offense. However, the victim acknowledged she suffered the injuries to her

mouth and tongue before performing oral sex on appellant. The victim conceded she did

not want to testify and was worried about her son not being able to see appellant if he was

convicted. The victim also testified during appellant’s case in chief. When questioned

about the discrepancies between her trial testimony and the statements she made to

Hernandez, Chisholm, and Prindle on the morning of the offense, the victim claimed she

did not remember what she had said to any of them. On cross-examination by the State,




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however, the victim admitted she remembered telling appellant during the assault that she

thought he was going to kill her. She also admitted she thought she was going to die.


      By his first two issues, appellant contends the evidence is legally and factually

insufficient to show (1) the victim was compelled to consent to sex with him; and (2) he

intentionally and knowingly compelled the victim to submit to sex by the use of physical

force or violence.1 Specifically, appellant maintains the evidence is insufficient because

both he and the victim, the only two eyewitnesses to the alleged offense, testified their

sexual encounter was consensual. We disagree.


       The standards of review for legal and factual sufficiency of the evidence are well

established and need not be detailed. See Jackson v. Virginia, 443 U.S. 307, 319, 99

S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1979); Johnson v. State, 23 S.W.3d 1, 11

(Tex.Cr.App. 2000); Clewis v. State, 922 S.W.2d 126, 133 (Tex.Cr.App. 1996). Before

determining whether the evidence is legally sufficient to sustain the conviction, we must

review the essential elements the State was required to prove. Appellant was indicted for

committing aggravated sexual assault in violation of section 22.021 of the Texas Penal

Code (Vernon 2003). Based upon the indictment, the trial court instructed the jury:


      . . . if you find from the evidence beyond a reasonable doubt that on or about
      December 8, 2001, in Lubbock County, Texas, [appellant] did then and there
      intentionally or knowingly cause the penetration of the anus of [the victim] by


      1
          Because appellant addresses the issues contemporaneously, we will do the same.

                                            5
       [appellant’s] penis, without the consent of [the victim], and [appellant] did
       then and there compel [the victim] to submit or participate by the use of
       physical force or violence, and [appellant] did then and there, by acts or
       words, place [the victim] in fear that death or serious bodily injury would be
       imminently inflicted on [the victim], then you will find [appellant] guilty of the
       offense of aggravated sexual assault and so say by your verdict.


       At the outset, we note that Hernandez’s, Chisholm’s, and Prindle’s testimony

regarding what the victim told them on the morning of the offense was admissible under

the excited utterance exception to the rule against hearsay. Tex. R. Evid. 803(2); see

Scugoza v. State, 949 S.W.2d 360, 362 (Tex.App.–San Antonio 1997, no pet.). The

witnesses variously described the victim as “crying,” “shaking,” “upset,” “tearful,” “nervous,”

“anxious,” “scared,” “emotional,” and “hysterical” as she related to them the physical and

sexual assaults she suffered on December 8, 2001. Furthermore, the victim herself

testified she was “upset,” “crying,” and “hurting” at the time she arrived at her mother’s

house after the assault. Ms. Prindle and Ms. Chisholm explained that the victim’s

emotional demeanor persisted throughout her sojourn at the hospital. Clearly, the victim

was still dominated by the emotions, excitement, fear, pain, and condition of the assault

at the time she made the statements to Hernandez, Chisholm, and Prindle. See Salazar

v. State, 38 S.W.3d 141, 154 (Tex.Cr.App. 2001) (citing McFarland v. State, 845 S.W.2d

824, 846 (Tex.Cr.App.)).


       Next, we observe that Hernandez’s, Chisholm’s, and Prindle’s testimony constitutes

direct evidence of the crime appellant committed. Cf. Fernandez v. State, 805 S.W.2d


                                               6
451, 454 n.2 (Tex.Cr.App. 1991) (testimony by officer reflecting statements made by

defendant’s wife prior to trial, which were recanted by wife at trial, was direct evidence

because it was “an inference from the assertion of a witness to the truth of the fact

asserted”). That direct testimony, if accepted by the jury, as it obviously was, is legally

sufficient to sustain the verdict. Cf. Scugoza, 949 S.W.2d at 363. Indeed, as factfinder,

the jury was entitled to judge the credibility of the witnesses and choose to believe all,

some or none of the testimony. Chambers v. State, 805 S.W.2d 459, 461 (Tex.Cr.App.

1991). The jury observed the victim’s demeanor and heard Hernandez, Chisholm, and

Prindle testify about statements the victim made to them on the day of the offense. The

jury was entitled not only to reconcile any conflicts in the testimony, but even to disbelieve

the victim’s recantation. Peters v. State, 997 S.W.2d 377, 383 (Tex.App.–Beaumont 1999,

no pet.). Furthermore, the victim’s prior statements to Hernandez, Chisholm, and Prindle

have an “inherent indicia of trustworthiness” because they were “made closer in time to the

event in question.” Id. We conclude a rational trier of fact could have found the essential

elements of the offense beyond a reasonable doubt. The evidence is legally sufficient to

sustain the conviction.


       Evidence to support a criminal conviction may be factually insufficient in two distinct

ways. In the first, the evidence in support of the existence of a vital fact, considered as

standing alone, is factually too weak to support it. Goodman v. State, 66 S.W.3d 283, 285

(Tex.Cr.App. 2001). The second type of factual insufficiency involves a balancing scale,


                                              7
where there is evidence on both sides of the question. Id. Here, three separate witnesses

testified about the victim’s statements on the day of the offense that she did not consent

to sexual intercourse with appellant. Those statements strongly support the existence of

a vital fact at issue in the trial and on appeal--lack of consent. Furthermore, balancing the

evidence related to lack of consent in this case, we cannot say appellant’s evidence was

so strong, so overwhelming, so much more extensive than the State’s evidence that it

renders the jury’s verdict so contrary to the great weight and preponderance of the

evidence that it is manifestly unjust. See id. In short, the evidence is factually sufficient

to support the verdict. Appellant’s first and second issues are overruled.2


       With the remaining issues, appellant claims his trial attorney was ineffective by

failing to object to Hernandez’s, Chisholm’s, and Prindle’s hearsay statements about the

victim’s allegations to them on the day of the offense. Appellant also contends his trial

attorney was ineffective in light of the alleged cumulative errors made at trial. We

disagree.


       In determining whether counsel's representation was so inadequate as to violate

a defendant's Sixth Amendment right to counsel, Texas courts adhere to the two-pronged

test enunciated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674

(1984). See Hernandez v. State, 726 S.W.2d 53, 56-7 (Tex.Cr.App. 1986). There is a


       2
        We conclude the evidence that establishes the victim’s lack of consent is also
sufficient to demonstrate that appellant “compelled” her to consent.

                                             8
strong presumption that counsel's conduct fell within the wide range of reasonable

professional assistance. Strickland, 466 U.S. at 690. The burden is on appellant to prove

by a preponderance of the evidence that counsel was ineffective. See McFarland v. State,

928 S.W.2d 482, 500 (Tex.Cr.App. 1996). Appellant must first prove that counsel's

performance was deficient, i.e., that his assistance fell below an objective standard of

reasonableness. Id. If appellant demonstrates deficient assistance of counsel, he must

then affirmatively prove prejudice as a result of the deficient assistance. Id. In proving

prejudice, appellant must demonstrate a reasonable probability that but for counsel's

errors, the result of the proceeding would have been different. A reasonable probability

is a probability sufficient to undermine confidence in the outcome. Hernandez, 726 S.W.2d

at 55.


         Any allegation of ineffective assistance of counsel must be firmly founded in the

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

McFarland, 928 S.W.2d at 500. Failure to make the required showing of either deficient

performance or sufficient prejudice defeats the ineffectiveness claim. Id. Defense counsel

should ordinarily be accorded an opportunity to explain his or her actions before being

labeled as unprofessional, incompetent or ineffective. See Bone v. State, 77 S.W.3d 828,

836 (Tex.Cr.App. 2002).


         As noted above, the hearsay testimony of Hernandez, Chisholm, and Prindle was

admissible pursuant to the excited utterance exception to the hearsay rule. Tex. R. Evid.

                                             9
803(2). As a result, appellant has failed to demonstrate that his trial counsel’s assistance

fell below an objective standard of reasonableness; thus, his ineffectiveness claim is

defeated. McFarland, 928 S.W.2d at 500. Furthermore, the failure to object to admissible

evidence is not ineffective assistance.        Burruss v. State, 20 S.W.3d 179, 187

(Tex.App.–Texarkana 2000, pet. ref’d). Appellant’s issues three, four, five, and six are

overruled.


       Accordingly, the judgment of the trial court is affirmed.



                                          Don H. Reavis
                                            Justice


Do not publish.




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