Affirm and Opinion Filed July 10, 2013




                                                      S  In The
                                                   Court of Appeals
                                            Fifth District of Texas at Dallas

                                                    No. 05-11-01310-CR

                                      CANDELO PEREZ TORRES, Appellant
                                                    V.
                                        THE STATE OF TEXAS, Appellee

                                On Appeal from the 204th Judicial District Court
                                             Dallas County, Texas
                                     Trial Court Cause No. F08-24517-Q

                                           MEMORANDUM OPINION
                                       Before Justices Bridges, Lang, and Richter1
                                               Opinion by Justice Bridges
          Candelo Torres appeals his conviction for aggravated sexual assault of a child younger

than 14 years of age. After a bench trial, the trial judge found appellant guilty and sentenced him

to eight years’ confinement and a fine of $3000. In two issues, appellant argues he received

ineffective assistance of counsel, and the evidence is insufficient to support his conviction. We

affirm the trial court’s judgment.

          T.G. testified she was nine years old when appellant moved in with her brother, R.G., and

her mother, Gaye. Appellant and Gaye got married sometime thereafter, and a boy and a girl,

E.T. and C.T., were born out of that marriage. T.G. recalled that appellant and her mother were




   1
       The Hon. Martin Richter, Justice, Assigned
married for four or five years and that appellant no longer lived with them when she was

fourteen years old.

       T.G. testified that in August of 2000, when she was eleven years old, her mother rented a

bounce house for her and R.G.’s joint birthday party. T.G. went outside to the bounce house

with blankets and pillows and told R.G. to go get his own, and they were going to sleep in the

bounce house that night. Appellant went outside to the bounce house and was jumping around

with T.G., but when she lay down under her covers appellant got under the covers too and started

“spooning” her. When appellant was spooning T.G., he started putting his hands all over her

legs and feeling her up through her shorts and underwear to touch her vagina skin to skin. T.G.

testified appellant put his fingers “all over [her] private area, like going from my clitoris down to

my vagina hole.”

      T.G. testified the bounce house incident was not the first time appellant touched her

vagina. T.G. testified she was ten years old the first time appellant touched her inappropriately

in the swimming pool in the backyard. Appellant got in the pool with T.G. and R.G. and swam

up underneath the water in between T.G.’s legs. He then pulled T.G.’s bikini bottom aside and

“smashes his mouth all in [her] vagina.” T.G. “freaked out” and “got out of there” and went

inside the house and went to bed.

      T.G. testified a third incident occurred when she was in sixth grade. Appellant came into

her room and started tugging at her pants and pulling them down. T.G. woke her mother up and

told her appellant had touched her and tried to pull her pants down that morning. Her mother

started screaming and crying and called her uncle so they could confront appellant, who denied

anything had happened. Someone asked T.G. if she could have been dreaming, and she said,

“Yeah, I was just dreaming, I guess.”

      When T.G. was eighteen and no longer living at her mother’s house she made an outcry to

her mother. She made this outcry on finding out that appellant had filed for sole custody of E.T.
and C.T. because she was afraid appellant might sexually abuse them too. Her mother then

encouraged her to “say something.” T.G. and R.G. went to the Garland police department where

T.G. filed a report.

      R.G. testified his mother usually rented a bounce house for every birthday party. He was

also “pretty sure” that there was a bounce house for his and T.G.’s joint birthday party in August

2000. He testified he went into the bounce house with T.G. that night after the party was over.

R.G. said it would not have been rare for appellant to be in the bounce house with T.G. R.G.

testified there was a pool in the back yard that was fifteen to twenty feet in diameter and was

deep enough for someone to submerge themselves in and come back up. R.G. testified T.G.

lived in her mother’s house while appellant was living there and stayed there during the week

because of school. However, on the weekends T.G. usually went to her grandmother’s house.

He also testified his relationship with appellant toward the end “wasn’t that great.” R.G. said

appellant put his finger on his rectum multiple times, would pull down his pants and make fun of

the size of his penis, would “put his finger up [R.G.’s] butt,” and one time appellant showed R.G.

his “body parts.” R.G. told his mother about these incidents, and it caused his mother and

appellant to get into a “huge argument.”

      Appellant testified in his own defense. He denied ever touching T.G. inappropriately. He

denied ever putting his fingers in her vagina in the bounce house. Appellant testified that T.G.

lived with her grandparents almost the whole time he was with Gaye and that it was rare for T.G.

to spend the night or even live in the household. He also denied that there was ever a bounce

house on the property and testified there was only a trampoline. Appellant testified that there

was a small swimming pool in the backyard, but T.G. never swam in it because she did not live

in the house. He said it would have been impossible for him to swim underneath a nine or ten

year old child in the pool. Appellant denied ever going into T.G.’s bedroom when she was there.

Appellant testified he got along with R.G. well and denied ever flicking his penis at him or
pulling down his pants and making fun of the size of his penis. On cross-examination appellant

admitted T.G. got in the swimming pool “like two times.” He maintained that T.G. was lying

about all three specific instances that she described. At first appellant testified that the first time

he heard any allegations by T.G. of him touching her inappropriately was in 2008 but then

admitted Gaye and Uncle Roy had confronted him once before. At the conclusion of the

evidence, the trial judge found appellant guilty, and this appeal followed.

      In his first issue, appellant argues the evidence is insufficient to support his conviction.

Specifically, appellant argues T.G.’s testimony does not establish vaginal penetration beyond a

reasonable doubt. Further, appellant complains of the belated outcry and argues that T.G. was

motivated to outcry because he filed for sole custody of E.T. and C.T. We disagree.

      The State initially offered appellant a plea bargain agreement which he rejected and stated

he wanted to plead not guilty. Appellant’s counsel admonished him that, because he was a

resident and not a citizen, a conviction could result in his being deported. On the day of trial,

however, appellant entered a plea of no contest and waived a jury.

      We do not apply the Jackson “rationality” test in reviewing the sufficiency of the evidence

when a defendant voluntarily enters a plea of guilty or nolo contendere. See Ex parte Martin,

747 S.W.2d 789, 791 (Tex. Crim. App. 1988).             When a defendant pleads guilty or nolo

contendere, the State must introduce sufficient evidence into the record to support the plea and

show the defendant is guilty, and said evidence shall be accepted by the court as the basis for its

judgment. TEX. CODE CRIM. PROC. ANN. art. 1.15 (West 2005); see also Ex parte Martin, 747

S.W.2d at 792-93. We will affirm the trial court’s judgment if the evidence introduced embraces

every essential element of the offense charged and is sufficient to establish a defendant’s guilt.

See Stone v. State, 919 S.W.2d 424, 427 (Tex. Crim. App. 1996).

      A person commits the offense of aggravated sexual assault of a child younger than 14 years

of age if he intentionally and knowingly causes the penetration of the female sexual organ of a
child, who is not then the spouse of the defendant, by an object, and at the time of the offense,

the child was younger than 14 years of age. See Tex. Penal Code Ann. §§ 22.021(a)(1)(B)(i),

(a)(1)(B)(iii), (a)(2)(B) (West 2011).

       The record shows appellant went outside to the bounce house and was jumping around

with T.G., but when she lay down under her covers appellant got under the covers too and started

“spooning” her. When appellant was spooning T.G., he started putting his hands all over her

legs and feeling her up through her shorts and underwear to touch her vagina skin to skin. T.G.

described appellant putting his fingers “all over her private area, like going from my clitoris

down to my vagina hole.”          Even though appellant complains that T.G.’s testimony is

uncorroborated, in Texas, the testimony of a child complainant itself is enough to support a

conviction for aggravated sexual assault. TEX. CODE CRIM. PROC. ANN. art. 38.07(a), (b)(1)

(West Supp. 2011); see Tear v. State, 74 S.W.3d 555, 560 (Tex. App.—Dallas 2002, pet.

ref’d); Sandoval v. State, 52 S.W.3d 851, 854-55 (Tex. App.—Houston [1st Dist.] 2001, pet.

ref’d) We conclude the evidence is sufficient to show appellant committed the offense of

aggravated sexual assault of a child younger than 14 years of age. See Ex parte Martin, 747

S.W.2d at 791-93. We overrule appellant’s first issue.

      In his second issue, appellant argues he received ineffective assistance of counsel because

trial counsel permitted Detective Hale to testify about what R.G. told him appellant had done,

trial counsel stipulated Detective Hale was an expert in matters pertaining to child abuse, and

trial counsel did not request the State to elect the specific act of sexual assault on which it was

relying for conviction. A claim of ineffective assistance of counsel is reviewed under the

Strickland test. Hernandez v. State, 988 S.W.2d 770, 770 (Tex. Crim. App. 1999) (citing

Strickland v. Washington, 466 U.S. 668 (1984)). In determining whether counsel rendered

ineffective assistance, an appellate court considers two factors: (1) whether counsel’s

performance fell below an objective standard of reasonableness and (2) whether, but for
counsel’s deficient performance, the result of the proceeding would have been different.

Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999).

     Appellant bears the burden of proving his counsel was ineffective by a preponderance of

the evidence. Id. at 813. There is a strong presumption that counsel’s conduct fell within the

wide range of reasonable professional assistance. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim.

App. 2002); Thompson, 9 S.W.3d at 813. To defeat this presumption, appellant must prove that

there was no plausible professional reason for a specific act or omission. Bone, 77 S.W.3d at

836. Any allegations of ineffectiveness must be firmly founded in the record, and the record

must affirmatively demonstrate the alleged ineffectiveness. Thompson, 9 S.W.3d at 813. Thus, a

reviewing court will rarely be able to fairly evaluate the merits of an ineffective assistance claim

on direct appeal because the record on direct appeal is not developed adequately to reflect the

reasons for defense counsel’s actions at trial. Mata v. State, 226 S.W.3d 425, 430 (Tex. Crim.

App. 2007).

     Here, we do not have an adequate record to review appellant’s claim of ineffectiveness. See

id.; Thompson, 9 S.W.3d at 813-15. Appellant must prove that there is no possible strategic

reason for counsel’s actions and trial counsel should be given the opportunity to explain his

actions before being denounced as “ineffective.” Bone, 77 S.W.3d at 836. The record before us

is devoid of evidence from trial counsel himself and is “simply undeveloped and cannot

adequately reflect the failings of trial counsel.” Thompson, 9 S.W.3d at 814 (citing Jackson v.

State, 973 S.W.2d 954,957 (Tex. Crim. App. 1998)). The record is silent as to why appellant’s

trial counsel permitted Detective Hale to testify about what R.G. told him appellant had done,

stipulated Detective Hale was an expert in matters pertaining to child abuse, and did not request

the State to elect the specific act of sexual assault on which it was relying for conviction.

Therefore, appellant has failed to rebut the presumption that counsel’s decisions were reasonable.

Bone, 77 S.W.3d at 833; Thompson, 9 S.W.3d at 813-814.              Further, as we have already
concluded, the evidence showed appellant committed the charged offense when T.G. described

how appellant putt his fingers “all over her private area, like going from my clitoris down to my

vagina hole.” We overrule appellant’s second issue.

       We affirm the trial court’s judgment.




                                                  /David L. Bridges/
                                                  DAVID L. BRIDGES
                                                  JUSTICE



Do Not Publish
TEX. R. APP. P. 47

111310F.U05
                                       S
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

CANDELO PEREZ TORRES, Appellant                   On Appeal from the 204th Judicial District
                                                  Court, Dallas County, Texas
No. 05-11-01310-CR        V.                      Trial Court Cause No. F08-24517-Q.
                                                  Opinion delivered by Justice Bridges.
THE STATE OF TEXAS, Appellee                      Justices Lang and Richter participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered July 10, 2013




                                                 /David L. Bridges/
                                                 DAVID L. BRIDGES
                                                 JUSTICE
