                                  NO. 07-04-0477-CR
                                      07-04-0478-CR

                            IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                       PANEL C

                                 DECEMBER 15, 2005

                         ______________________________

                          FRANCISCO PEREZ, APPELLANT

                                           V.

                         THE STATE OF TEXAS, APPELLEE
                       _________________________________

             FROM THE 47TH DISTRICT COURT OF POTTER COUNTY;

             NO. 48,512-A, 48,513-A; HONORABLE HAL MINER, JUDGE
                       _______________________________


Before QUINN, C.J., and REAVIS and HANCOCK, JJ.


                              MEMORANDUM OPINION


      On September 22, 2004, appellant, Francisco Perez, was found guilty by a jury of

aggravated sexual assault of a child and indecency with a child. The punishment for each

offense was enhanced by one prior felony conviction. During a trial of both offenses held

simultaneously, the jury assessed punishment at 45 years confinement in the Institutional

Division of the Texas Department of Criminal Justice for the offense of aggravated sexual
assault and 15 years confinement for the offense of indecency with a child. Appellant filed

notice of appeal in both cases. We affirm.


       Appellant presents three issues on appeal. First, appellant contends that he was

denied effective assistance of counsel because the cumulative effect of trial counsel’s

failures to object to the admission of evidence denied appellant a fair trial. Second,

appellant urges that the evidence presented was factually insufficient to support a

conviction for aggravated sexual assault of a child. Finally, appellant contends that the

State made several improper and inflammatory statements during jury arguments that

denied him a fair trial.


                            Ineffective Assistance of Counsel


       In reviewing appellant’s contentions of ineffective assistance of counsel, we are

guided by the standard of review as set forth by the U.S. Supreme Court in Strickland and

adopted by the Texas Court of Criminal Appeals in Hernandez. See Strickland v.

Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Hernandez v. State,

726 S.W.2d 53, 57 (Tex.Crim.App. 1986). A criminal defendant has a constitutional right

to effective assistance of counsel. Strickland, 466 U.S. at 686. Under the two prong test

articulated in Strickland, counsel is ineffective if (1) counsel's performance was deficient

(i.e., fell below an objective standard of reasonableness), and (2) there is a reasonable

probability that but for counsel's deficient performance the result of the proceeding would

have been different. Rylander v. State, 101 S.W.3d 107, 110 (Tex.Crim.App. 2003). A

reasonable probability is a probability sufficient to undermine confidence in the outcome.


                                             2
Strickland, 466 U.S. at 694. There is a strong presumption that trial counsel's performance

was within the wide range of reasonable professional assistance. Id. at 689; Miniel v.

State, 831 S.W.2d 310, 323 (Tex.Crim.App. 1992). The adequacy of the representation

is judged by the totality of the representation rather than by isolated acts or omissions of

counsel. Garcia v. State, 887 S.W.2d 862, 880 (Tex.Crim.App. 1994).


       At issue is appellant’s contention that trial counsel’s “unexplained failures” to object

on four specific occasions had the cumulative effect of denying appellant a fair trial. Each

alleged instance of ineffective assistance of counsel will be reviewed in turn.


       Initially, appellant contends that counsel’s performance was deficient because he

allowed the sexual assault nurse examiner to testify about matters beyond the physical

findings of the exam. While counsel did object to the nurse’s testimony going beyond the

physical findings, which was sustained by the trial court, appellant contends that counsel

failed to ensure that the State abided by the trial court’s ruling. However, the record

reflects that trial counsel did object to the question about which appellant now complains,

but the trial court overruled the objection and allowed the witness to answer. On appeal

appellant contends, under Texas Rule of Evidence 7021 and cases that have evolved

thereunder, the nurse’s testimony was expert testimony that was intended to supplant the

jury’s determination of the child’s truthfulness and was, therefore, inadmissible. Cohn v.

State, 849 S.W.2d 817, 818 (Tex.Crim.App. 1993). Since trial counsel objected to the

proposed testimony and obtained an adverse ruling by the trial court, any error in admitting


       1
        Further references to the provisions of the Texas Rule of Evidence will be by
reference to “Rule .”

                                              3
the nurse’s testimony was preserved for appeal. TEX . R. APP. P. 33.1; Dixon v. State, 2

S.W.3d 263, 265 (Tex.Crim.App. 1998). However, appellant does not challenge the trial

court’s admission of this testimony, but rather claims that counsel’s performance was

deficient because this testimony was admitted. By timely objecting and obtaining an

adverse ruling, trial counsel preserved any error in the admission of the nurse’s testimony

and, therefore, we conclude that counsel’s actions did not fall below an objective standard

of reasonableness.     See Rylander, 101 S.W.3d at 110. Accordingly, appellant’s first

alleged instance of ineffective assistance is overruled.


       Appellant next contends that trial counsel’s failure to object to the testimony of April

Lemming constituted ineffective assistance of counsel. Appellant’s contention is based on

Lemming’s testimony being received, under Rule 701, as a lay opinion.2 According to

appellant, Lemming’s testimony was nothing more than speculative lay testimony regarding

the truthfulness of the child victim and was, therefore, inadmissible. Fairow v. State, 943

S.W.2d 895, 901 (Tex.Crim.App. 1997).


       In reviewing counsel’s actions regarding Lemming’s testimony, we must consider

the totality of trial counsel’s representation rather than focusing on isolated incidents.

Garcia, 887 S.W.2d at 880. Throughout the trial, counsel pursued a defensive theory of

fabrication by the child resulting from undue influence over the child. In reviewing the

totality of counsel’s representation it is noteworthy that, though counsel failed to object to


       2
         Rule 701 provides that a witness not testifying as an expert may testify in the form
of opinions or inferences in situations limited to those opinions or inferences which are “(a)
rationally based on the perception of the witness and (b) helpful to a clear understanding
of the witness’[s] testimony or the determination of a fact in issue.”

                                              4
Lemming’s testimony, counsel’s cross examination of Lemming was consistent with

appellant’s defensive theory and can be considered trial strategy. Under the

circumstances, appellant has failed to overcome the presumption that trial counsel was

pursuing a sound trial strategy. See Miniel, 831 S.W.2d at 323. Accordingly, appellant’s

second allegation of ineffective assistance of counsel is overruled.3


       Finally, appellant contends that counsel was ineffective because testimony

regarding the child’s hair loss was introduced without objection. Appellant contends that

counsel should have objected to the father’s and step-mother’s testimony about the child’s

hair loss being the result of stress because the testimony was speculative, not based on

any personal knowledge, and introduced to bolster the credibility of the child. Appellant’s

contention presumes that the hair loss testimony was offered to prove that stress from the

sexual assault caused the hair loss. 4


       Again, it must be stressed that it is the totality of counsel’s representation that

determines whether the representation was effective. Garcia , 887 S.W.2d at 880. When

viewed in the context of counsel’s overall defensive theory of recent fabrication and

manipulation of the victim, the testimony of hair loss, regardless of reason, becomes

admissible as background to allow the fact finder to weigh the allegations of fabrication or

undue influence. See TEX . R. EVID . 801(e)(1)(b); McDuff v. State, 939 S.W.2d 607, 619


       3
         Furthermore, we have reviewed the record and conclude that, even if counsel had
objected to Lemmings’s testimony, the testimony was admissible under Rule 701.

       4
        The State argues and the record reflects that the hair loss testimony was offered
as a factual backdrop for why the father was questioning the child and as the context in
which the child alleged that appellant had sexually assaulted her.

                                             5
(Tex.Crim.App. 1997). Failure of trial counsel to object to evidence that was admissible

does not constitute ineffective assistance of counsel. Lee v. State, 29 S.W.3d 570, 579-80

(Tex.App.–Dallas 2000, no pet.). Accordingly, we overrule appellant’s third and fourth

allegations of ineffective assistance of counsel.


       Having reviewed all of appellant’s individual claims of ineffective assistance of

counsel and having determined that appellant has failed to show that counsel’s

performance fell below an objective standard of reasonableness, appellant’s claim of

cumulative error for ineffective assistance of counsel fails. Accordingly, we overrule

appellant’s first issue.


                                    Factual Sufficiency


       When an appellant challenges the factual sufficiency of his conviction, the reviewing

court must ultimately determine whether, considering all the evidence in a neutral light, the

jury was rationally justified in finding defendant guilty beyond a reasonable doubt. See

Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004). There are two ways in which

the evidence may be factually insufficient. First, when considered by itself, evidence

supporting the verdict may be too weak to support the finding of guilt beyond a reasonable

doubt. Id. Second, considering all of the evidence, both for and against the verdict, the

contrary evidence may be so strong that the beyond-a-reasonable-doubt standard could

not have been met. Id. at 484-85. While we review the evidence in a neutral light, we

must give appropriate deference to the jury’s evaluation of the evidence, resolution of any

inconsistencies, and determination of the evidence’s weight and value. Johnson v. State,


                                             6
23 S.W.3d 1, 8 (Tex.Crim.App. 2000). We are not allowed to substitute our judgment for

that of the jury unless the verdict is clearly wrong and manifestly unjust. Zuniga, 144

S.W.3d at 481-82.


       A neutral review of the record shows that the child’s trial testimony regarding the

facts of the sexual assault was not significantly contradicted by the statements she had

previously made to the nurse rape examiner at the hospital and the child interviewer at The

Bridge, both of whom testified. The child was very specific about how the incident occurred

and what specifically transpired. However, appellant produced testimony that, if believed,

might have raised a reasonable doubt. The job of judging the credibility of conflicting

testimony is a job best suited for the jury. Johnson, 23 S.W.3d at 8.    After reviewing all

of the evidence in a neutral light, we cannot say that the verdict of the jury was not

rationally justified. Zuniga, 144 S.W.3d at 484.


       As we affirm the judgment of the trial court, we will address appellant’s main

argument as to how the evidence was factually insufficient to support the verdict and

explain why we do not find this argument persuasive. See Sims v. State, 99 S.W.3d 600,

603 (Tex.Crim.App. 2003). Appellant’s primary factual insufficiency contention is that the

child testified that she was not sure that appellant contacted her genitals with his tongue.

Appellant arrives at this conclusion based on one statement of the child, made during re-

cross-examination, that she was “not sure” whether appellant had licked her genitals with

his tongue.




                                             7
       Appellant cites the court to Johnson and posits that in the instant case, like

Johnson, the evidence is too weak to prove an element of the State’s case. Johnson, 23

S.W.3d at 11.     However, the evidence in Johnson was significantly different and

significantly weaker in proving the pivotal element of the State’s case, identity, than the

evidence presented in the instant case. In Johnson, the complaining witness was never

able to have an unobstructed view of her assailant and so testified. Id. at 4. Accordingly,

the reviewing court was able to glean from the appellate record the requisite evidence that

placed the element of identity in doubt. In the case before the court, we have but one

reference by the victim to not being sure about whether or not appellant placed his tongue

on her genitals. It is further noted that, upon redirect, the State elicited testimony that a

jury could have concluded eliminated any doubt about that issue. The record available to

this court does not clearly indicate a different result is appropriate and, therefore, we must

defer to the jury’s determination about the weight to be given the seemingly contradictory

testimony because they are in the best position to evaluate the credibility of the witnesses

and their demeanor. Id. at 18. Therefore, we overrule appellant’s second issue.


                                 Improper Jury Argument


       Appellant next contends that during the State’s argument on punishment, four

separate incidents of improper jury argument occurred that require reversal of appellant’s

conviction. However, appellant never objected to any of the alleged incidents of improper

jury argument. Therefore, no error is preserved and error, if any, is waived. See TEX . R.

APP. P. 33.1(a); Threadgill v. State, 146 S.W.3d 654, 670 (Tex.Crim.App. 2004).

Accordingly, appellant’s third issue is overruled.

                                              8
                                     Conclusion


      Having overruled all of appellant’s issues, the judgments of the trial court are

affirmed.




                                              Mackey K. Hancock
                                                  Justice



Do not publish.




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