      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-00-00569-CR




                                     Jason Eureste, Appellant

                                                  v.

                                   The State of Texas, Appellee



    FROM THE DISTRICT COURT OF CONCHO COUNTY, 119TH JUDICIAL DISTRICT
          NO. 1326-A, HONORABLE BEN WOODWARD, JUDGE PRESIDING




               Appellant Jason Eureste was jointly tried on two indictments, one accusing him of

the sexual assault of a fourteen-year-old girl and the other accusing him of the aggravated sexual

assault of an eleven-year-old girl.        See Tex. Penal Code Ann. §§ 22.011(a)(2)(A) &

22.021(a)(1)(B)(i), (2)(B) (West Supp. 2001). A jury found him not guilty of the first offense but

guilty of the second, and assessed punishment at imprisonment for ten years and a $10,000 fine. On

the jury’s recommendation, imposition of sentence was suspended and appellant was placed on

community supervision.

               Appellant now contends that his trial attorney rendered ineffective 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 appellant’s defense to such a degree

that he was deprived of a fair trial. See 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); and see Moore v. State, 694 S.W.2d 528, 531 (Tex. Crim.

App. 1985); O'Hara v. State, 837 S.W.2d 139, 143 (Tex. App.—Austin 1992, pet. ref'd). Appellant

filed a motion for new trial, but ineffectiveness of counsel was not asserted.

               Appellant contends trial counsel was ineffective because he did not call certain

witnesses: Catherine Maldonado, a child protective services worker who interviewed the younger

complainant; an unnamed doctor who examined the complainant following her outcry; and three

named individuals who were present at the house when the alleged assault took place. The

complainant’s written statement to Maldonado was introduced in evidence by the defense and used

to impeach the complainant’s trial testimony. There is no showing that Maldonado’s own testimony

would have added anything of benefit to the defense. Similarly, there is no evidence that the other

uncalled witnesses were willing to testify, or would have offered any beneficial testimony.

               Appellant further argues that counsel was ineffective because he did not properly

develop a misidentification defense. He notes that counsel “cross examined both of the alleged

victims on their knowledge of and relationship with a man named George Anzuldua, insinuating that

Anzuldua was the actor and that the Defendant had been misidentified. However, at no time did

counsel subpoena Mr. Anzuldua, or set forth a direct allegation that Mr. Anzuldua was the guilty

party.” Anzuldua was shown to be the former boyfriend of the older complainant. Appellant testified

at trial that Anzuldua was present at the time and place of the alleged assaults, but neither

complainant corroborated this. There is no evidence that Anzuldua would have testified that he had

sexual intercourse with the complainants. It would have been improper for the defense to call




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Anzuldua for the purpose of having him invoke his Fifth Amendment privilege before the jury, as

appellant suggests in his brief. See Whitmore v. State, 570 S.W.2d 889, 896 (Tex. Crim. App. 1977).

               In reviewing a claim of ineffective assistance, we must indulge a strong presumption

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

v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). In this case, the effectiveness of counsel is

not merely presumed, but is manifested by the results of the trial. Appellant has not met his burden

of proving that counsel’s representation was constitutionally inadequate.

               Points of error one and two are overruled and the judgment of conviction is affirmed.




                                              __________________________________________

                                              Lee Yeakel, Justice

Before Chief Justice Aboussie, Justices Yeakel and Patterson

Affirmed

Filed: June 7, 2001

Do Not Publish




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