      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-04-00418-CR



                                 Julises Hernandez, Appellant

                                                 v.

                                  The State of Texas, Appellee




     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 403RD JUDICIAL DISTRICT
         NO. 9044048, HONORABLE BRENDA KENNEDY, JUDGE PRESIDING



                            MEMORANDUM OPINION


               A jury found appellant Julises Hernandez guilty of indecency with a child by contact,

and the court sentenced him to fifteen years’ imprisonment. See Tex. Pen. Code Ann. § 21.11(a)(1)

(West 2003). Appellant contends the evidence is factually insufficient to sustain the guilty verdict

and that his trial counsel was ineffective. We disagree with both contentions and affirm the

conviction.

               In March 2003, the four-year-old complainant told her mother, Elizabeth Martinez,

that she did not want appellant “to give her love anymore.” Appellant, who was seventeen, worked

with Martinez’s husband. He was living in the family’s spare bedroom and helping with the rent.

Martinez said she initially thought that the complainant meant that appellant had kissed her on the

cheek. But when she questioned the complainant further, the complainant told her that appellant had

come into her room, taken her from the bed, pulled down her underpants, and put his penis “inside
her.” The complainant pointed to her vagina when she said this. Martinez reported what she had

been told to the police.

                The physician who conducted the sexual assault examination testified that the

complainant told him about three episodes of sexual assault during the two weeks prior to the

examination. He said that the complainant’s hymen was absent, which was consistent with but not

proof of penetration by a penis or finger.

                Leonor Castillo, an employee of the district attorney’s office, served as translator

during meetings between the complainant, her parents, and the assistant district attorney assigned

to the case. Castillo testified that the complainant said appellant squeezed her breasts, touched her

mouth with “his weenie,” and touched her vagina with his finger. The complainant also said that

appellant placed his mouth on her vagina.

                The complainant, a nervous and reluctant witness, testified that appellant touched her

breasts with his hands.

                Count two of the indictment contained three paragraphs alleging that appellant

engaged in sexual contact with the complainant by touching her genitals, by touching her breasts,

and by causing her to touch his genitals. See Tex. Pen. Code Ann. § 21.11(a)(1), (c). The trial

court’s charge authorized a finding of guilt based on any or all of these theories, and the jury returned

a general verdict of guilt.1




     1
       The indictment also included counts accusing appellant of aggravated sexual assault and
indecency with a child by exposure. See Tex. Pen. Code Ann. § 21.11(a)(2) (West 2003),
§ 22.021(a)(1)(B) (West Supp. 2005). The jury was unable to reach a verdict on these counts.

                                                   2
               In a factual sufficiency review, the question is whether, viewing all the evidence in

a neutral light, the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga

v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004). The evidence may be factually insufficient

because: (1) the evidence of guilt, considered alone, is too weak to support a finding of guilt beyond

a reasonable doubt, or (2) the contrary evidence is so strong as to preclude a finding of guilt beyond

a reasonable doubt. Id. at 484-85. In the instant case, the defense called no witnesses and there is

no evidence contrary to the finding of guilt. The testimony previously summarized is plainly

sufficient to support a verdict of guilt beyond a reasonable doubt on all three paragraphs of count

two. Point of error one is overruled.

               In his other point of error, appellant contends that his trial counsel did not provide

effective assistance. To prevail on this claim, appellant must show that counsel made such serious

errors that he was not functioning effectively as counsel and that these errors prejudiced the

appellant’s defense to such a degree that he was deprived of a fair trial. Strickland v. Washington,

466 U.S. 668, 687 (1984); Hernandez v. State, 988 S.W.2d 770, 771-72 (Tex. Crim. App. 1999);

Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986). We must indulge a strong

presumption that counsel’s conduct fell within the wide range of reasonable professional assistance.

Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). To overcome this presumption, any

allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively

demonstrate the alleged ineffectiveness. Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001).

               Appellant asserts that his attorney should have objected to the State calling two outcry

witnesses: Elizabeth Martinez and Leonor Castillo. See Tex. Code Crim. Proc. Ann. art. 38.072



                                                  3
(West 2005). Multiple outcry witnesses may testify about separate instances of abuse if each was

the first person to whom the child relayed information about separate incidents or types of abuse.

Hernandez v. State, 973 S.W.2d 787, 789 (Tex. App.—Austin 1998, pet. ref’d). On the present

record, the testimony of the two outcry witnesses does not appear to have been objectionable under

article 38.072. Appellant also argues that counsel should have objected to the outcry testimony as

violating his Sixth Amendment confrontation rights under Crawford v. Washington, 541 U.S. 36

(2004), decided one month before his trial. While such an objection could have been made,

appellant makes no effort to demonstrate that it would have been meritorious. We also note that the

guilty verdict is sustainable on the complainant’s testimony alone. Appellant further complains that

his attorney did not object to the prosecutor telling the jury that she was an outcry witness. We find

no such statement by the prosecutor in the record. Leonor Castillo did testify that the prosecutor was

present when the complainant made outcry statements, but appellant refers us to no authority holding

that this testimony was objectionable.

               Appellant contends that his trial attorney should have objected to the State calling the

complainant to testify three different times and to the use of closed-circuit television for her

testimony. The complainant, who was five at the time of trial, was twice called by the State to testify

in open court. It appears from the record that she was nervous and uncomfortable on the witness

stand, and she did not testify to any inculpatory facts. The complainant was called a third time and

allowed to testify by way of closed-circuit television. It was during this testimony that she described

appellant’s improper touching. Appellant cites no authority holding that it was improper to recall

the complainant as a witness. He appears to concede that the use of closed-circuit television was



                                                  4
proper under prevailing authority, but he suggests that the holding in Crawford calls this authority

into question. See Maryland v. Craig, 497 U.S. 836, 855 (1990); Marx v. State, 953 S.W.2d 321,

328 (Tex. App.—Austin 1997), aff’d, 987 S.W.2d 577, 580 (Tex. Crim. App. 1999). Appellant

offers no argument in support of this suggestion. Finally, appellant contends that his attorney should

have objected to the State’s use of leading questions during the complainant’s testimony. The use

of leading questions was within the trial court’s discretion, and counsel could have reasonably

believed that the leading was not objectionable under the circumstances. See Tex. R. Evid. 611(c).

               Appellant also complains that his attorney should have objected to the trial court

determining the complainant’s competency to testify in the jury’s presence. See Tex. R. Evid.

104(c), 601(a)(2).    He states that the court’s conduct implied that the judge endorsed the

complainant’s testimony. The record reflects that the court briefly questioned the complainant about

her understanding of the difference between telling the truth and telling a lie. We find no basis for

concluding that the interests of justice required this examination to be done outside the jury’s

presence. Id. rule 104(c). Appellant urges that counsel should have requested a “taint hearing” to

determine whether the complainant’s testimony had been tainted during the course of previous

interviews. He points to no evidence that such a taint might have existed.

               Appellant argues that his trial counsel should have requested the appointment of

medical or psychological experts to assist the defense. While such a request was not made, it is

possible that counsel considered and rejected such a request as unnecessary. Appellant also cites no

evidence that such expertise would have been beneficial to the defense.




                                                  5
               Finally, appellant contends that his trial counsel was ineffective because he did not

elect to go to the jury for punishment, which in turn deprived appellant of any chance for community

supervision. See Tex. Code Crim. Proc. Ann. art. 42.12, § 3g(a)(1)(C) (West Supp. 2005).

Appellant refers us to a statement by counsel indicating that he believed that appellant’s status as an

undocumented alien disqualified him for probation. While counsel might have been mistaken in this,

we cannot determine from the trial record that this was the only reason he chose to go to the court

for punishment. Counsel may have believed, based on his experience, that a jury was unlikely to

recommend probation and would assess a harsher punishment than the court.

               Appellant’s complaints regarding the performance of his trial counsel are not firmly

rooted in the record. He has not overcome the presumption that counsel exercised reasonable

professional judgment during the course of appellant’s trial. Point of error two is overruled.

               The judgment of conviction is affirmed.




                                               __________________________________________

                                               Jan P. Patterson, Justice

Before Chief Justice Law, Justices Patterson and Puryear

Affirmed

Filed: December 15, 2005

Do Not Publish




                                                  6
