                                  NO. 07-03-0044-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL E

                                  DECEMBER 1, 2003

                         ______________________________


                            EARL F. CURRIE, APPELLANT

                                           V.

                         THE STATE OF TEXAS, APPELLEE


                       _________________________________

             FROM THE 364TH DISTRICT COURT OF LUBBOCK COUNTY;

          NO. 2002-439099; HONORABLE BRADLEY S. UNDERWOOD, JUDGE

                        _______________________________

Before QUINN and REAVIS, JJ., and BOYD, S.J.1


                                Memorandum Opinion


      Appellant Earl F. Currie presents two issues which, he argues, require reversal of

his conviction of attempted aggravated sexual assault and the resulting jury-assessed

punishment of 20 years confinement in the Institutional Division of the Department of



      1
      John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment.
Tex. Gov’t Code Ann. §75.002(a)(1) (Vernon Supp. 2004).
Criminal Justice and a $10,000 fine. In his issues, he asserts 1) the evidence is legally and

factually insufficient to support the jury’s verdict, and 2) his trial counsel was ineffective in

failing to challenge or strike three prospective jurors during voir dire examination of the jury

panel. Disagreeing that reversal is required, we affirm the judgment of the trial court.


         In evaluating the legal sufficiency of the evidence, we must view the evidence in the

light most favorable to the verdict and determine whether any rational trier of fact could

have found the essential elements of the offense beyond a reasonable doubt. In doing so,

although our analysis considers all the evidence presented at trial, we may not re-weigh

the evidence and substitute our judgment for that of the jury. King v. State, 29 S.W.3d

556, 562 (Tex. Crim. App. 2000). In reviewing a factual sufficiency challenge, we ask

whether a neutral review of all the evidence, both for and against the finding, demonstrates

that the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary

proof.    Id. at 563.    In conducting this analysis, we may disagree with the jury’s

determination, even if probative evidence supports the verdict, but we must avoid

substituting our judgment for that of the jury. Id.; see also Clewis v. State, 922 S.W.2d

126, 133 (Tex. Crim. App. 1996).


         A person commits attempted aggravated sexual assault if, with the intent to commit

sexual assault, he “does an act amounting to more than mere preparation that tends but

fails to effect the commission” of aggravated sexual assault. See Tex. Pen. Code Ann.

§15.01(a) (Vernon 2003). A person commits aggravated sexual assault if he intentionally

or knowingly “causes the penetration of the anus or female sexual organ of another person



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by any means, without that person’s consent.” Tex. Pen. Code Ann. § 22.021(a)(1)

(Vernon 2003). The offense is aggravated if the victim is 65 years of age or older. Id. §

22.021(a)(2)(C).


       Disposition of appellant’s first issue requires us to review the pertinent evidence in

this case. It shows that appellant was employed as a certified nurse’s aide at the Bender

Terrace Nursing Home in Lubbock. He was assigned to the 400 hall which was designated

for bedridden patients who were unable to care for themselves. Mary, the 74-year-old

victim, was confined to that area because of the ravages of Alzheimer’s disease. She was

unable to speak with the exception of making some grunting sounds, she was incontinent,

and she lacked mobility in all of her body with the exception of some very limited

movement in her hands. On January 30, 2002, the date of the occurrence in question,

appellant was working the same shift with Wynette Sanders, a team leader of the 200 hall,

adjacent to the 400 hall.


       At the time in question, appellant’s fellow employee Sanders was looking for

appellant to give him a bedpan for one of his patients. The residents’ doors were ordinarily

kept open; however, they were closed when a resident was being attended to. Sanders

was looking for a closed door, assuming that appellant was taking care of a patient. Noting

that the door to the victim’s room was closed, Sanders opened the door. As she did so,

she noticed that the room was dark. She averred that she saw appellant on top of the

victim between the victim’s legs and facing her. Although in a prior written statement to the

police, Sanders had said she would not “swear” that appellant’s pants were down, at trial

she was adamant that they were “halfway down his butt.” Additionally, in her earlier

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statement, Sanders said she asked appellant twice what he was doing, although at trial she

averred she asked him three times, before he replied “[n]ot a damn thing.” During that

time, he did not change his position.


        Later that night, appellant gave a statement to Michael Kral, the police officer

investigating the incident. In the statement, and in relevant part, appellant said:


        When I walked into the room the light was off. I went in there and turned on
        the light and she was awake. She told me that she was wet. She is hard to
        understand. I started to change her from one side to the other but she would
        not turn. I got on the bed and pulled the diaper under her back. About the
        time Wynette opened the door and said what was I doing, and I said I was
        doing my job. I finished putting the diaper on her and turned the light out and
        closed the door behind me . . . .


After the officer took the statement, and in view of the fact that appellant contended the

victim had told him she was wet when others told him she was not verbal, Kral continued

the investigation.


        Later, on February 4, 2002, appellant gave another statement. In relevant part, he

said:


        I also wanted to state that when I was changing [Mary,] I was not wearing
        any gloves. I was in a hurry so I did not put any on. I wiped her vaginal area
        and her buttocks with a face cloth. I did this before I put a new diaper on
        her. When I was doing this I was on the floor. I remember having an [sic]
        hard on. I was thinking of my wife at the time. I then got onto the bed to
        change [Mary] . . . . Det. Kral asked me if I had kissed [Mary], and I told him
        that earlier that day, I had kissed her just next to the mouth kind of on the
        side . . . .




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Mary was taken to the hospital but, because of the immobility of her legs, the examining

physician was not able to determine if there was any sperm present or that penetration had

taken place. The victim’s husband testified that he was present at the home three times

a day to feed and be with his wife. He said she was nonverbal and he found it very difficult

to believe she could have told someone she was wet. Appellant did not testify.


       It is axiomatic that it is the peculiar province of the jury to assess the credibility of

the witnesses and the weight to be given to the evidence. Suffice it to say, we have

carefully reviewed the evidence under the guidelines we have set out, and we find it is

amply sufficient, both legally and factually, to sustain the verdict of the jury. Appellant’s

first issue is overruled.


       In advancing his second issue, appellant contends his trial counsel did not render

him effective assistance during the voir dire examination of the jury panel. He specifically

complains that three members of the panel displayed a bias against a defendant that did

not testify and further demonstrated an inability to consider the full range of punishment

assigned to the charged offense. In particular, appellant complains of the failure to

challenge venire members Julie Deanne Taylor, David Robert Goyette, and Justin Raul

Gonzales, each of whom served on the trial jury.


       The panel member responses upon which appellant relies occurred during defense

counsel’s examination and after he had explained to the panel a defendant’s constitutional

right not to testify and that his client might or might not exercise that right. The responses

appellant singles out are as follows:


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       Venire person Taylor: Just depending on the case. Like you were saying, I
       mean, there are times that it may not be best, but I may or may not wonder
       why, you know, he didn’t want to defend himself, just depending on how the
       case goes and what the testimony is.

       Mr. Mais: Okay. So if he [the defendant] didn’t get up there to testify, that
       would kind of leave something in the back of your mind?

       Venire person Taylor: I would probably just wonder why, but then again, it
       might be clear as a bell when it came down to it. It’s hard to say because
       depending on what happened in the case and the testimony.


However, immediately following the portion of the colloquy with venire person Taylor cited

by appellant, the record reveals the following:


       Mr. Mais: Okay. Now, what if the Judge gives you what they call the Court’s
       Charge? In other words, it’s kind of like instructions or directions - -

       Venire person Taylor: Right.

       Mr. Mais: –you know, that this, this or that. Setting your feelings aside,
       could you just listen to the instructions and follow the instructions or the
       Court’s Charge?

       Venire person Taylor: Absolutely.


Appellant also notes the responses of venire persons Goyette and Gonzales as follows:


       Venire person Goyette: Well, I respect his right, but I agree with him [venire
       person Sapieha2]; if they’re innocent, I would have a problem with him not
       speaking up.
       Venire person Gonzales: I’m with these guys.




       2
        Venire person Sapieha had commented “I would respect his right [not to testify], but
I would question why somebody wouldn’t want to defend themselves if they’re innocent
basically.”

                                             6
None of the venire persons addressed by appellant here were challenged for cause by

appellant’s trial counsel, nor did he exercise any of appellant’s peremptory strikes on them.

Venire person Sapieha was peremptorily struck by appellant.


       Appellant also points to an initial statement by venire person Gonzales during the

State’s voir dire examination that he could not consider probation in an aggravated sexual

assault case. This answer resulted in an additional voir dire explanation by the State of

the duty to consider the full range of punishment and the necessity to do so to the

remainder of the panel. After defense counsel had explained to the panel the necessity

for considering the full range of punishment, he did not specifically ask Gonzales if, after

the explanations, he could consider the full range. Counsel did close with the comment

that “I take it that all of you could consider the full range of punishment.”


       Under both the federal and state constitutions, a defendant has the right to elect

not to testify against himself and the fact that he may do so may not be taken as a

circumstance against him. U.S. CONST. amend. V; TEXAS CONST. art. 1, § 10; Tex.

Code Crim. Proc. Ann. art. 1.05 (Vernon 1977). The jury was properly instructed on this

right as required by article 36.14 of the Code of Criminal Procedure. Tex. Code Crim.

Proc. Ann. art. 36.14 (Vernon Supp. 2004). Appellant was eligible for jury-granted

probation and had filed an application to be granted probation in the event of his

conviction. A venire person who is unable to consider the full range of punishment is

subject to challenge for cause.       Chapman v. State, 838 S.W.2d 574, 578 (Tex.

App.–Amarillo 1992, pet. ref’d). Appellant argues that trial counsel should have challenged

each of the panel members for cause and, if the challenge was overruled, counsel should

                                              7
have used peremptory challenges on each of them. The failure to do so, he argues,

demonstrates ineffective assistance of counsel.


                                   Standard of Review


      The standards for appellate review of ineffective assistance of counsel challenges

are by now axiomatic. In Hernandez v. State, 988 S.W.2d 770 (Tex. Crim. App. 1999), the

court held the test enunciated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 3052,

80 L.Ed.2d 674 (1984) is applicable in Texas. That test requires that we first ask if

counsel’s performance was deficient in that he committed serious errors and, if so, whether

the outcome of the trial would have differed but for counsel’s deficiency. Id. 466 U.S. at

687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693; Rodriguez v. State, 955 S.W.2d 171, 176-77

(Tex. App.–Amarillo 1997, no pet.).


       The burden rests upon the appellant to illustrate by references to the record why

both prongs of the test must be answered in the affirmative. Jackson v. State, 877 S.W.2d

768, 771 (Tex. Crim. App. 1994); Rodriguez v. State, 955 S.W.2d at 176-77. Appellant

must also refer us to evidence of record depicting the motives, if any, underlying the

actions, or lack thereof, questioned by appellant. Id. at 176-77. That is required because

we presume, unless shown otherwise, that counsel’s actions were reasonably professional

and motivated by sound trial strategy.     Beck v. State, 976 S.W.2d 265, 266 (Tex.

App.–Amarillo 1998, pet. ref’d). Thus, it is incumbent upon an appellant to rebut the

presumptions by establishing 1) counsel’s performance was so deficient that it fell below

an objective standard of reasonableness, and 2) a probability sufficient to undermine


                                            8
confidence in the outcome existed so that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different. Rylander v. State, 101 S.W.3d 107,

110 (Tex. Crim. App. 2003). Additionally, the Rylander court further explicated that “trial

counsel should ordinarily be afforded an opportunity to explain his actions before being

denounced as ineffective.” Id. at 111; see also Bone v. State, 77 S.W.2d 828, 836 (Tex.

Crim. App. 2002).


       The record before us is silent as to trial counsel’s motives or trial strategy and

whether those motives or trial strategy were unreasonable. Further, there is nothing on the

question that, but for counsel’s unprofessional errors, if demonstrated, the result of the trial

would have been different. Appellant’s second issue is overruled.


       In sum, both of appellant’s issues are overruled and the judgment of the trial court

is affirmed.


                                                   John T. Boyd
                                                   Senior Justice

Do not publish.




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