                         NUMBER 13-16-00260-CR

                            COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG


NATHAN TIMOTHY FARIAS,                                                    Appellant,

                                          v.

THE STATE OF TEXAS,                                                       Appellee.


                   On appeal from the 430th District Court
                         of Hidalgo County, Texas.


                       MEMORANDUM OPINION

  Before Chief Justice Valdez and Justices Benavides and Longoria
             Memorandum Opinion by Justice Longoria

      Appellant Nathan Timothy Farias was convicted of one count of aggravated sexual

assault (count one), see TEX. PEN. CODE ANN. § 22.021 (West, Westlaw through 2017 1st

C.S.), and one count of continuous abuse of a child (count two), see TEX. PEN. CODE ANN.

§ 21.02 (West, Westlaw through 2017 1st C.S.). In three issues, Farias argues that (1)
the evidence is insufficient to sustain his convictions; (2) he received ineffective

assistance of counsel; and (3) the cumulative errors below denied him of a fair trial. We

affirm.

                                                I. BACKGROUND

          Farias and Candra Gonzalez are the parents of J.G. 1 From about 2012, J.G., who

was approximately four-years old at the time, lived with Farias and Farias’s mother.

Gonzalez attempted to visit J.G. to no avail. In August of 2013, a temporary restraining

order was rendered in the suit affecting the parent-child relationship filed by Gonzalez.

Farias did not appear at the hearing on the matter. Upon a finding that Farias was

deliberately avoiding service of process, a capias for his arrest was issued. The trial

court also ordered J.G. to be placed in Gonzalez’s care. Farias was taken into custody

on September 18, 2014; the trial court informed Farias that he would go to jail without

bond unless he brought J.G. to court.

          Within the first day of regaining possession of J.G., who was now about six years

old, Gonzalez asked J.G. if Farias had “done anything to her.” J.G. responded, “Well, I

don’t want to get in trouble.” Gonzalez explains the rest of their conversation:

          [t]hat’s when she told me that [Farias and J.G.] were watching a scary movie
          and he had placed his finger in her butt . . . [s]he said that Nathan had put
          his private next to—or in her mouth and that white stuff came out and she
          spit it on the floor because it was nasty.

The next day Gonzalez reported the matter to the police, who notified the Child Protective

Services (CPS). CPS worker Elizabeth Chavez testified that they discovered during the



          1   We refer to the child by her initials in order to protect her privacy. See generally TEX. R. APP.
P. 9.8(b).
                                                         2
investigation that J.G., although six years old when the investigation had begun, had

never been enrolled in school while she lived with Farias. It is a “red flag” to CPS workers

when a child is “being kept isolated, kept from the public eye.” Chavez testified that aside

from the obvious importance of early education for children, teachers often help CPS

workers identify markers of abuse; thus, according to Chavez, it is a red flag if a child is

being kept away from school and teachers.

       At trial, J.G., who was now eight years old, testified that she never saw her mother

during the entire time she lived with Farias. She further testified that she did not like

living with Farias because “he treat me bad.” J.G. then testified as follows:

       Prosecutor: Now, [J.G.], has anybody ever touched you on your private
                   parts?

       J.G.:             Yes.

       Prosecutor: Okay. And who is that?

       J.G.:             Nathan.

       Prosecutor: Okay. Can you tell me what private parts?

       J.G.:             Yes.

       Prosecutor: Okay. Which ones?

       J.G.:             My coconut, 2 my butt and -- and my mouth.

       Prosecutor: Do you remember the place that that happened?

       J.G.:             No.

       Prosecutor: Okay. Do you remember a room?

       J.G.:             Yes.

       2   J.G. used the term coconut during trial to refer to her female sexual organ.

                                                      3
Prosecutor: Okay. What room?

J.G.:             Cece's room. 3

Prosecutor: Cece's room. Now, when you say he touched your coconut,
            what did he touch your coconut with?

J.G.:             His hands.

Prosecutor: Now, I am going to ask you really specific, did it touch on the
            outside or in the inside?

J.G.:             The inside.

Prosecutor: Do you remember if you were wearing clothes?

J.G.:             Yes.

Prosecutor: Okay. Were you wearing clothes?

J.G.:             No.

Prosecutor: How did it feel?

J.G.:             Bad.

Prosecutor: And you said that he touched you on your butt?

J.G.:             Yes.

Prosecutor: Okay. Was it on the outside or on the inside?

J.G.:             The inside.

Prosecutor: And do you remember what he touched your butt with?

J.G.:             Yes.

Prosecutor: With what?

J.G.:             With his weeny.


3   “Cece” is what J.G. calls Cecili Alcoser, the woman Farias was living with at the time.
                                               4
Prosecutor: Do you remember if it happened more than once?

J.G.:        It happened -- it happened more than once.

Prosecutor: How did that feel?

J.G.:        Bad.

Prosecutor: Now, do you remember about him touching you somewhere
            on your mouth?

J.G.:        No.

Prosecutor: Okay. Did anything ever happen to your mouth that you didn't
            like?

J.G.:        Yes.

Prosecutor: Okay. What happened?

J.G.:        That white stuff with grey came out.

Prosecutor: And where did it come out from?

J.G.:        From his weeny.

Prosecutor: Do you remember if that happened once or more than once?

J.G.:        More than once.

Prosecutor: And what would you do with the white stuff?

J.G.:        I would just leave it alone.

Prosecutor: You would leave it alone?

J.G.:        Yes.

Prosecutor: Now, did you ever put your hands on Nathan?

J.G.:        Yes.

Prosecutor: Okay. Now, I am going to show you, do you remember what
            places?

                                     5
      J.G.:         Yes.

      Prosecutor: Okay. What places?

      J.G.:         On his weeny.

      Prosecutor: Okay. And how would you do it?

      J.G.:         Up and down.

      Prosecutor: Can you she (sic) me?

      J.G.:         (Demonstrating).

      Prosecutor: And did that happen once or more than once?

      J.G.:         More than once.

      Prosecutor: What would happen when you would make that motion?

      J.G.:         White stuff and grey will come out.

J.G. testified that she never told anyone about this, except for one friend, “[b]ecause he

told me to keep it a secret.” She admitted to telling one friend about this, but she told

her friend to never tell anyone. The medical records contained the following notes:

      Patient states: “Nathan took me home with him. He spanked me really
      hard on my hands and my butt. He didn't feed me very well. I have to get
      out and sneak the food. He spanked me with a belt, the silver part where
      they put the holes. I didn't get to finish my beans and my bread. I stole
      the bread. Nathan, he touched me in the butt.” Patient indicates anus by
      pointing. “He put me upside down and the cream came out again and
      again. It came out of his part. He also made me slap his area with my
      face. It was gross. He put his area in my butt and inside my mouth and
      the cream came out. He touched me here.” Patient indicates female
      sexual organ by pointing with his [sic.] hand. “He made me do this.”
      Patient demonstrated by putting leg straight up in the air and opened and
      “he put his area to my legs and the cream came out and goes to my




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        stomach. “Ms. Ruby 4 called me puta. 5 She calls me puta every single
        day.”

The Child Advocacy Center interviewer relayed the following at trial

        Well, [J.G.] told me that Nathan the bad guy would touch her and kiss her
        when she didn't want to be touched. And he would touch her in the front,
        in her front part, and in her butt, and she specifically said that. And then
        he would put his private part in her mouth and keep it in her mouth and spit
        it out and spit the cream out.

J.G. testified that such events occurred “lots of times.”

        Farias entered a plea of not guilty on both counts. The jury found Farias guilty on

both counts and assessed punishment at fifty years’ confinement in the Texas

Department of Criminal Justice, Institutional Division (TDCJID) on count one and fifty-five

years’ confinement in the TDCJID on count two.               This appeal ensued.

                              II. LEGAL SUFFICIENCY OF THE EVIDENCE

        In his first issue, Farias contends that the corpus delicti doctrine mandates a finding

of insufficient evidentiary support; in his second issue, Farias complains generally that

the evidence is legally and factually insufficient to support his convictions.                   We will

address these together as one issue.

A. Standard of Review and Applicable Law

        In order to determine if the evidence is legally sufficient in a criminal case, the

appellate court reviews all of the evidence in the light most favorable to the verdict and

determines whether any rational trier of fact could have found the essential elements of


        4 “Ms. Ruby” is the mother of Cecili Alcoser, the woman Farias was living with at the time.

Farias, Alcoser, and J.G. lived in the home of “Ms. Ruby.”
        5“Puta” is a Spanish slang word meaning “prostitute” or “woman who has many casual sexual
encounters or relationships.” http://www.en/oxforddictionaries.com/definition/us/puta
                                                    7
the crime beyond a reasonable doubt. See Brooks v. State, 323 S.W.3d 893, 905 (Tex.

Crim. App. 2010) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)); see also Whatley

v. State, 445 S.W.3d 159, 166 (Tex. Crim. App. 2014). We give great deference to the

trier of fact and assume the factfinder resolved all conflicts in the evidence in favor of the

verdict. Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009). We will uphold

the verdict unless the factfinder “must have had reasonable doubt as to any essential

element.” Id. at 517. The legal-sufficiency standard upheld in Jackson v. Virginia is the

only standard that should be applied in criminal appeals; thus, we do not perform factual

sufficiency reviews in criminal cases. See Brooks, 323 S.W.3d at 894.

       “Courts give wide latitude to testimony given by child victims of sexual abuse.”

Gonzalez Soto v. State, 267 S.W.3d 327, 332 (Tex. App.—Corpus Christi 2008, no pet.).

The child complainant’s description of the abuse need not be “precise.” Id. This rule

“reflect[s] the important public policy that we cannot expect the child victims of violent

crimes to testify with the same clarity and ability as is expected of mature and capable

adults.”   Villalon v. State, 791 S.W.2d 130, 134 (Tex. Crim. App. 1990). We have

previously held that “[t]he testimony of a child sexual abuse victim alone is sufficient to

support a conviction for indecency with a child or aggravated sexual assault.” See Soto

v. State, 267 S.W.3d 327, 332 (Tex. App.—Corpus Christi 2008, no pet.). Furthermore,

there is no requirement that the victim’s testimony be corroborated by medical or physical

evidence. See id.

       Sufficiency is measured by the elements of the offense as defined by a

hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App.


                                              8
1997). Such a charge in this case would state that a person commits the offense of

continuous sexual abuse if the person committed two or more acts of sexual abuse

against the victim within a thirty-day period and the victim was under the age of fourteen.

See TEX. PENAL CODE ANN. § 21.02(b). Such a charge in this case would also state that

a person commits the offense of aggravated sexual assault if the person caused his

sexual organ to penetrate the mouth of the victim and the victim was then under the age

of six. See id. § 21.021(a)(1)(ii), (f)(1).

B. Discussion

       Farias’s first argument—that the corpus delicti doctrine mandates a finding of

evidentiary insufficiency in this case—is misplaced. Corpus delicti simply requires that

“an out-of-court confession be corroborated by some evidence that the offense actually

was committed.” Salazar v. State, 86 S.W.3d 640, 641 (Tex. Crim. App. 2002). Farias

did not make any out-of-court confessions or non-custodial inculpatory statements that

were admitted or at issue in the present case. Corpus delicti is simply inapplicable.

       Even though Farias invites us to find the evidence to be factually insufficient, that

is not the test. As established in Brooks eight years ago, there is “only one standard to

evaluate whether the evidence is sufficient to support a criminal conviction beyond a

reasonable doubt: legal sufficiency.” Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim.

App. 2013) (citing Brooks, 323 S.W.3d at 894) (internal quotations omitted). Farias does

not claim a lack of evidence on any particular element; rather, he broadly claims that

J.G.’s testimony was so “fantastical, whimsical, unreliable, and contradictory” as to be

insufficient to support his convictions. For example, J.G. claimed in one of her outcries


                                              9
that the sexual abuse and assaults happened at the “island.” Farias contends that this

renders her testimony “too fantastical” for any rational jury to believe anything she said

because Farias does not live on an actual island and he allegedly never took her to an

island. However, when asked why she called the house she lived in with Farias “the

island,” J.G. responded, “I just only had myself in the room. I pretend I had toys.” We

do not find her testimony to be so contradictory, fantastical, or unreliable that it would

cause a rational jury to have reasonable doubts about her testimony or the elements of

the offenses. See Laster, 275 S.W.3d at 512.

      Concerning the specific elements, there was no question that J.G. was under the

age of 6 at the time of the alleged acts. J.G. gave sufficiently accurate descriptions of

the sexual acts that allegedly occurred on numerous occasions. Even with some of the

supposed contradictions, we assume a rational jury simply resolved any supposed

conflicts in favor of the verdict. See id. And we established above that J.G.’s testimony

alone is enough to support the convictions, even without any medical testimony. See

Soto, 267 S.W.3d at 332.      Therefore, viewing all of the evidence in the light most

favorable to the verdict, we conclude that a reasonable factfinder could find beyond a

reasonable doubt that Farias committed the offenses of continuous sexual abuse and

aggravated sexual assault. See Temple, 390 S.W.3d at 360; Brooks, 323 S.W.3d at

894. We overrule appellants’ first issue.

                            III. INEFFECTIVE ASSISTANCE OF COUNSEL

      In his second issue, Farias argues that his trial counsel rendered ineffective

assistance because he did not make certain objections to evidence and testimony


                                            10
admitted at trial.

A. Standard of Review and Applicable Law

       To establish ineffective assistance of counsel, Farias must show by a

preponderance of the evidence that (1) his counsel’s representation fell below the

standard of prevailing professional norms, and (2) there is a reasonable probability that,

but for counsel’s deficiency, the result of the trial would have been different.      See

Strickland v. Washington, 466 U.S. 668 (1984).         Trial counsel should normally be

afforded an opportunity to explain his or her actions before being proclaimed as deficient,

especially if counsel’s reasons for failing to take an action do not appear in the record.

See Menefield v. State, 363 S.W.3d 591, 592–93 (Tex. Crim. App. 2012). If trial counsel

has not been given an opportunity to explain its actions, “then the appellate court should

not find deficient performance unless the challenged conduct was so outrageous that no

competent attorney would have engaged in it.” Id. Thus, direct appeal is usually an

inadequate tool for claims of ineffective assistance because the record has not been

developed sufficiently to make such findings. Id.

       A defendant suffers prejudice when there is a “reasonable probability” that the

result of the proceeding would have been different but for counsel’s errors. Thompson

v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). “A reasonable probability is a

probability sufficient to undermine confidence in the outcome.” Id. To prevail on a claim

of ineffective assistance connected with the absence of an objection, it must be shown,

as a threshold matter, that the subject evidence was inadmissible.          See Ex parte

Jimenez, 364 S.W.3d 866 (Tex. Crim. App. 2012, cert. denied).


                                            11
B. Discussion

        As part of his ineffective assistance of counsel claim, Farias argues that his

attorneys failed to raise a number of objections. For example, according to Farias, his

attorney should have objected to testimony concerning the circumstances of J.G.’s return

to Gonzalez. Also, Farias contends that it was highly prejudicial for the jury to hear about

Farias’s incarceration and the capias issued against him. Farias also complains that his

counsel should have objected to numerous hearsay statements relating to Farias’s

parenting.

        However, Farias never filed a motion for new trial and his trial counsel was never

afforded an opportunity to explain his actions; courts are hesitant to declare a counsel’s

performance as deficient until he has been afforded an opportunity to explain himself.

See Menefield, 363 S.W.3d at 592. In its current state, the record does not support the

allegations of ineffective assistance of counsel. See Carballo v. State, 303 S.W.3d 742,

750 (Tex. App.—Houston [1st Dist.] 2009, pet. ref'd) (“Allegations of ineffective assistance

of counsel must be firmly founded in the record.”). 6 For example, Farias claims that his

trial counsel should have objected when the officer stated that he did not endeavor to

interview Farias because he was incarcerated at the time. However, his trial counsel

raised an objection, and it was sustained by the trial court. Farias complains that it was

prejudicial for Gonzalez to testify regarding the capias issued for Farias’s arrest and that




         6 We note that challenges requiring a record to substantiate a claim, such as ineffective assistance

of counsel, may be raised in an application for writ of habeas corpus. See TEX. CODE CRIM. PROC. ANN.
art. 11.07 (West, Westlaw through 2017 1st C.S.); Cooper v. State, 45 S.W.3d 77, 82 (Tex. Crim. App.
2001).

                                                    12
she regained custody while Farias was incarcerated. However, those circumstances

were relevant to the nature of the case, how the abuse was discovered, and when J.G.’s

outcry statements were made. Thus, Farias has not shown that evidence relating to his

incarceration was inadmissible. See Ex parte Jimenez, 364 S.W.3d at 866.

       Likewise, Farias complains that his attorney should have objected to testimony

from a nurse that claimed that J.G. told her that Farias spanked J.G. “really hard” and that

he did not feed J.G. very well. However, these statements were related to medical

diagnosis and treatment. See TEX. R. EVID. 803(4). Again, Farias has not shown that

these statements were inadmissible. See Ex parte Jimenez, 364 S.W.3d at 866. Even

assuming that any of the other claims about his trial counsel are true, Farias has wholly

failed to establish that the questioned acts were “so outrageous that no competent

attorney would have engaged in [them].” Goodspeed v. State, 187 S.W.3d 390, 392

(Tex. Crim. App. 2005).

       Furthermore, Farias did not establish prejudice by showing a “reasonable

probability” that the result of the proceeding would have been different but for his trial

counsel’s alleged shortcomings. See Thompson, 9 S.W.3d at 812. Farias offers no

explanation as to how the result might have been different had his trial counsel raised any

of these objections. As noted above, testimony regarding Farias’s incarceration were

highly relevant to the case; thus, Farias has not shown that the trial court would have

sustained any objection to that testimony. Regarding, the officer’s testimony, the trial

court sustained the objection that his trial counsel raised. And even if the trial court

granted any supposed hearsay objections, Farias has not shown a reasonable probability


                                            13
that it would have changed the results of the proceedings, given the weight and nature of

the testimony and evidence adduced at trial against Farias.              See id.   We overrule

Farias’s second issue.

                                        IV. CUMULATIVE ERROR

       Lastly, Farias argues that the cumulative errors committed by the trial court and

his trial counsel affected his right to a fair and impartial trial.

       It is true that a number of errors, although harmless when considered

independently, may be harmful in their cumulative effect. Chamberlain v. State, 998

S.W.2d 230, 238 (Tex. Crim. App. 1999). However, there is no authority that “non-errors

may in their cumulative effect cause error.” Id. We have already held that the neither

the trial court or Farias’s counsel committed error. Therefore, the cumulative effect of

their non-errors cannot be harmful. See id. We overrule Farias’s third issue.

                                            V. CONCLUSION

       We affirm the trial court’s judgment.

                                                                      NORA L. LONGORIA,
                                                                      Justice


Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
21st day of June, 2018.




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