Opinion filed January 9, 2014




                                      In The


        Eleventh Court of Appeals
                                   __________

                                No. 11-12-00027-CR
                                    __________

                        JOSE GONZALEZ, Appellant

                                        V.

                     THE STATE OF TEXAS, Appellee


                     On Appeal from the 299th District Court
                                Travis County, Texas
                    Trial Court Cause No. D-1-DC-07-301684



                      MEMORANDUM OPINION
      The grand jury indicted Appellant, Jose Gonzalez, for four counts of
aggravated sexual assault of a child younger than fourteen years of age, one count
of indecency with a child by contact, and two counts of indecency with a child by
exposure. See TEX. PENAL CODE ANN. § 21.11 (West 2011), § 22.021 (West Supp.
2013). The jury convicted Appellant of two counts of aggravated sexual assault of
a child younger than fourteen years of age. Based on the instructions given in the
charge, the jury was not required to determine Appellant’s guilt for any of the
remaining charged offenses.        The jury assessed Appellant’s punishment at
confinement for fifty years for each of the convictions. The trial court ordered that
Appellant’s sentences were to run concurrently. We affirm.
       Appellant presents six issues on appeal. In his first two issues, he challenges
the sufficiency of the evidence. Appellant argues in his third and fifth issues that
the trial court erred when it admitted the hearsay testimony of the outcry witness
and of the doctor who examined the complainant. In his fourth issue, Appellant
alleges that his trial counsel was ineffective when he failed to request an election
as to the act upon which the State was relying for conviction. Appellant argues in
his final issue that the trial court erred when it did not declare a mistrial after the
State wrongly accused Appellant of a prior conviction during the guilt/innocence
phase of the trial.
       We will first address Appellant’s challenge to the sufficiency of the
evidence. We review the sufficiency of the evidence under the standard of review
set forth in Jackson v. Virginia, 443 U.S. 307 (1979). Brooks v. State, 323 S.W.3d
893, 912 (Tex. Crim. App. 2010); Polk v. State, 337 S.W.3d 286, 288–89 (Tex.
App.—Eastland 2010, pet. ref’d). Under the Jackson standard, we examine all of
the evidence in the light most favorable to the verdict and determine whether,
based on that evidence and any reasonable inferences from it, any rational trier of
fact could have found the essential elements of the offense beyond a reasonable
doubt. Jackson, 443 U.S. at 319; Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim.
App. 2010). The jury, as the trier of fact, is the sole judge of the credibility of the
witnesses and of the weight to be given their testimony. TEX. CODE. CRIM. PROC.
ANN. art. 36.13 (West 2007), art. 38.04 (West 1979). As such, the jury is entitled
                                          2
to accept or reject any or all of the testimony of any witness. Adelman v. State,
828 S.W.2d 418, 421 (Tex. Crim. App. 1992).
      The evidence at trial showed that the complainant, C.M., was between five
and six years old when she met Appellant. C.M.’s mother, A.G., dated Appellant
on and off for several years. C.M. testified that Appellant forced her to do things
that she did not want to do. At night, on multiple occasions, Appellant came into
her room from the bathroom; he was not wearing any clothes. He took off her
pants and underwear, put a blanket over her, told her to stop crying, held down her
hands, and put his penis in her vagina. When his penis was inside of her vagina, he
moved up and down. He breathed hard. It hurt and she cried. Appellant also put
his mouth on her vagina and put his tongue inside of her vagina; his hands were on
her legs.
      On one occasion, he told her, while he was crying, that he was sorry but that
he was almost finished. On another occasion, when her brother was next to her on
the bed, Appellant put his hand over her mouth and told her not to scream or he
would hurt her, her mom, and her brother. C.M. had asked her brother to stay in
the room with her because she thought that, if Appellant came in the room, she
could easily wake up her brother and prevent Appellant from touching her.
Appellant scooted her away from her brother, took off her clothes, and put his
penis in her vagina. On several occasions while her mother was at work, Appellant
took her to her mother’s room and put his penis in her vagina.
      C.M. testified that she knew that the abuse should not be happening to her
because Appellant was with her mother: “Like why would he do something like
that to someone, like, 20 times smaller than him and knowing that it’s for --
grownups should be doing that to each other and not a grownup and a child.” C.M.
tried to keep Appellant from coming in her room by blocking the door with clothes
and other items.    She also tried to wear extra clothes to make it harder for
                                         3
Appellant to touch her. She put on an extra pair of panties and pants, but he took
off the extra clothes.
      At first, C.M. did not tell anyone about what Appellant was doing to her
because she was afraid of Appellant. She did not remember when the abuse
started, but it stopped when Appellant and her mother separated. She felt safe
when Appellant was not around anymore, as if she had no worries. When her
mother and Appellant started to get back together, she told her mother that she did
not want him back.       Her mother asked her why she did not like Appellant.
Because she did not want to go through the abuse again, C.M. told her mother what
Appellant had been doing to her.
      A.G. testified that she and Appellant split up for about a year, but then
decided to get back together. C.M. was angry that they were getting back together.
A.G. talked with C.M. to find out why C.M. did not want Appellant around. At
first, C.M. was very quiet and did not want to tell A.G. anything. A.G. asked her if
Appellant ever did anything that she did not like. C.M. did not respond; she
looked like she wanted to cry. A.G. asked her if Appellant had ever touched her
anywhere that she did not want to be touched, and C.M. nodded her head “yes.”
A.G. continued to ask C.M. questions, and C.M. indicated that Appellant had
touched her on the front of her bottom part, that he had touched her with his hands,
and that he had put his thing in her thing. She said that it happened while her
mother was asleep or was at work. Appellant put a blanket over her face and told
her that if she told anyone he would suffocate her.
      Dr. Beth Nauret, a pediatrician and medical director of the Child Assessment
Program of the Austin Diagnostic Clinic, examined C.M. C.M. told Dr. Nauret
that Appellant began touching her when she was about five years old and that he
touched her on multiple occasions. Appellant touched her in her bedroom. C.M.
told her that he touched her private part with his private part, with his hand, and
                                          4
with his mouth. She showed Dr. Nauret where her private part was located on her
body and said that Appellant’s private part went inside her private part.        He
stopped touching her when she was ten years old. C.M. told Dr. Nauret that no one
else had touched her private part.
      Dr. Nauret’s examination of C.M. was normal, and she did not see any
injuries on C.M. She testified that it is common to see no injuries, even when
penetration has occurred, and that a normal examination does not prove, or
disprove, that a child has been abused.
      Appellant testified that he did not sexually assault C.M. He thought that
C.M. hated him because of the relationship he had with her mother and maybe
because he bought things for his biological children. He thought that A.G. may
have lied because she was not the only woman in his life and because he was not
taking care of her like he was taking care of the other woman.
      Appellant argues that the evidence is insufficient to support his convictions
for aggravated sexual assault of a child because the evidence did not show that
Appellant penetrated C.M.’s sexual organ with his sexual organ, in one count, and
with his tongue, in the other count. Appellant contends that there is no evidence in
the record that C.M. understood the meaning of the terms that she used to describe
the sexual abuse.
      Dr. Nauret testified that the female sexual organ is comprised of the clitoris,
the labia majora, the labia minora, the hymen, and the vagina. She explained that
penetration of the female sexual organ occurs when something goes past the labia
majora. In her experience, children just call everything “inside,” even though they
do not fully understand the concept. She explained that children do not really
know the difference between something that goes just barely inside the first layer
of the labia and something that goes inside the vagina—“[i]t’s just in as far as
they’re concerned.”
                                          5
      The Court of Criminal Appeals has described penetration to mean contact
that is “more intrusive than contact with [the] outer vaginal lips,” such as “pushing
aside and reaching beneath a natural fold of skin into an area of the body not
usually exposed to view.” Vernon v. State, 841 S.W.2d 407, 409 (Tex. Crim. App.
1992). Thus, the State is not required to show that the vagina itself was penetrated,
but only that the first layer of the labia was penetrated. Dr. Nauret’s testimony that
children do not understand the different layers of the sexual organ to know what
layer has actually been penetrated does not render the evidence insufficient to
show that penetration occurred. A child victim is not expected to testify with the
same clarity and ability as is expected of adults. Villalon v. State, 791 S.W.2d 130,
134 (Tex. Crim. App. 1990). C.M. testified that Appellant’s penis and tongue went
inside her vagina. Regardless of whether she understood what the medical term
“vagina” meant, the jury could have found that penetration of her sexual organ
occurred.
      Appellant also argues that, because C.M. told neither her mother nor
Dr. Nauret that Appellant’s tongue went inside her vagina, her story is inconsistent
and that, thus, the evidence is insufficient to support the conviction. However, it
was within the jury’s province to resolve any inconsistencies or conflicts between
the witnesses’ testimony.       Jackson, 443 U.S. at 319.           Furthermore, the
complainant’s testimony alone is sufficient to support a conviction for aggravated
sexual assault of a child. TEX. CODE CRIM. PROC. ANN. art. 38.07 (West Supp.
2013). We have reviewed the evidence in the light most favorable to the verdict,
and we hold that a rational trier of fact could have found beyond a reasonable
doubt that Appellant penetrated C.M.’s sexual organ with his sexual organ and
with his tongue. We overrule Appellant’s first and second issues.
      In his third issue, Appellant asserts that the trial court erred when it admitted
hearsay testimony of A.G., as the outcry witness, because it did not first hold a
                                          6
hearing to determine whether the outcry statement was reliable. Hearsay is an out-
of-court statement offered in evidence to prove the truth of the matter asserted.
TEX. R. EVID. 802. “Hearsay is not admissible except as provided by statute or [the
Rules of Evidence] or by other rules prescribed pursuant to statutory authority.”
TEX. R. EVID. 803.
      One such exception is embodied in Article 38.072 of the Texas Code of
Criminal Procedure.     Article 38.072 provides that a child victim’s “outcry”
statements are not inadmissible because of the hearsay rule if (1) the State gives
the defendant proper notice; (2) the trial court finds, in a hearing conducted outside
the presence of the jury, that the statements are reliable based on the time, content,
and circumstances of the statements; and (3) the child testifies. CRIM. PROC.
art. 38.072. An “outcry” statement is defined as a victim’s statement that describes
the alleged offense and that is made to the first person, eighteen years of age or
older, to whom the victim tells about the offense. Id.
      The State contends that Appellant waived error because defense counsel
made only a general hearsay objection, did not object under Article 38.072, and did
not request a hearing. Appellant directs us to Long v. State, 800 S.W.2d 545 (Tex.
Crim. App. 1990), for the proposition that a general hearsay objection is sufficient
to preserve error under Article 38.072.
      In Long, the court held that the defendant’s objection adequately apprised
the trial court of his complaint even though he did not specifically object under
Article 38.072 or on the grounds that the trial court failed to hold a hearing to
determine the outcry witness’s reliability. Long, 800 S.W.2d at 548. The court
reasoned, “In the context of this record, where the objection was raised
immediately before the child’s mother began to testify as to what her daughter told
her, we cannot imagine that the trial court somehow failed to comprehend the
nature of [the defendant’s] hearsay complaint.” Id.
                                          7
      Here, when defense counsel objected, A.G. had not begun testifying about
what C.M. told her regarding the abuse. A.G. was testifying about how C.M. did
not like Appellant and did not want her and Appellant to get back together. She
testified that C.M. wrote her letters each time that she got back together with
Appellant. When defense counsel asked to approach the bench, the following
exchange took place outside the jury’s presence:
             [DEFENSE COUNSEL]: I guess we don’t need to approach
      anymore. Your Honor, I would respectfully object to the statements
      that are being made by some of these -- these hearsay statements. The
      victim is here to testify. She can answer all these questions.

             She’s speculating. She’s saying things that may be taken out of
      context. It’s a clear hearsay objection, Your Honor. We didn’t even
      have a chance to hear an exception to the rule or anything like that. If
      it continues, it’s certainly more prejudicial than it is probative, in my
      opinion.

            THE COURT: [Prosecutor]?

            PROSECUTOR: One of the things, with respect to whatever
      the defendant said, it’s an exception to the hearsay rule, which is
      party-opponent.

            With respect to what the witness is testifying as far as the child
      goes, it’s speculation, this goes to mom’s personal knowledge and
      what she observes of her child, any notices in attitude, demeanor, any
      changes, so she can testify to that.

             And as far as what she’s about to start telling us is what [C.M.]
      told her, again, that’s an exception to the hearsay rule under the outcry
      exception.

            THE COURT: I’m going to overrule the objection. The
      defendant’s statements are all admissible. I believe the daughter’s
      statements both fall -- or we’re about to reach the outcry, but also I
      don’t believe any of them are actually being -- they were being
      offered to show the witness’ state of mind as to why she began this
                                         8
      process. I think they’re necessary to show why she began further
      questioning. We will -- the speculation was with respect to the
      witness’ state of mind, actually, ultimately, and we can clear that up.
      I can give a limiting instruction with respect to that. But I think to
      the extent that they were to show the witness’ state of mind, they’re
      admissible.

      After this exchange, the State began to ask A.G. what C.M. told her in
response to questions that A.G. asked C.M. about why she did not like Appellant.
In our sufficiency review above, we have outlined A.G.’s testimony regarding
what C.M. told her. Based on the exchange between the trial court and counsel, we
cannot say that the trial court did not consider Appellant’s hearsay objection in the
context of whether A.G.’s testimony as an outcry witness was admissible. Thus,
because the trial court did not first hold a hearing to determine whether the
statements were reliable, as required by the statute, the trial court erred when it
admitted the statements made by C.M. to A.G. regarding the alleged abuse.
      Having determined that the trial court erred, we must now determine
whether the error is reversible under TEX. R. APP. P. 44.2(b), which applies to
nonconstitutional errors. Pursuant to Rule 44.2(b), an error is not reversible error
unless it affects a substantial right of the defendant. A substantial right is affected
when the error has a substantial and injurious effect or influence in determining the
jury’s verdict. Johnson v. State, 43 S.W.3d 1, 4 (Tex. Crim. App. 2001); King v.
State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). An accused’s substantial
rights are not affected by the erroneous admission of evidence if the court, after
examining the record as a whole, has fair assurance that the error did not influence
the jury or had but a slight effect. Johnson v. State, 967 S.W.2d 410, 417 (Tex.
Crim. App. 1998). The improper admission of evidence is harmless when the
same facts are proven by other properly admitted evidence. Brooks v. State, 990
S.W.2d 278, 287 (Tex. Crim. App. 1999).

                                          9
      Here, C.M. testified that she told her mother about the abuse when her
mother and Appellant were getting back together. She testified that she did not
want them to get back together because she did not want to go through the abuse
again. Her mother asked her why she did not like Appellant and also asked her if
Appellant had touched her in any way. C.M. did not tell her mother many details
about the abuse.    After she told her mother, her mother called Appellant to
question him and also reported the abuse to law enforcement personnel.
      C.M. described the abuse to the jury. She testified that Appellant put his
penis and tongue in her vagina on multiple occasions and that it happened at night
or while her mother was at work. She also told the jury that Appellant put a
blanket over her and told her that, if she told anyone, he would hurt her, her
mother, or her brother. C.M.’s testimony proved the same facts that were admitted
through A.G.’s hearsay testimony. Thus, any error was harmless. See Brooks, 990
S.W.2d at 287. We overrule Appellant’s third issue.
      In his fifth issue, Appellant argues that the trial court erred when it admitted
the hearsay testimony of Dr. Nauret because C.M.’s statements to Dr. Nauret were
not made for the purpose of medical treatment but were instead made for the
purpose of a criminal investigation. “Statements made for purposes of medical
diagnosis or treatment and describing medical history, or past or present
symptoms, pain, or sensations, or the inception or general character of the cause or
external source thereof insofar as reasonably pertinent to diagnosis or treatment”
are also not excluded by the hearsay rule. TEX. R. EVID. 803(4). The proponent of
the evidence must show that the declarant was aware that the statements were
made for the purpose of medical diagnosis or treatment, that the declarant
understood that proper diagnosis or treatment depended on the truthfulness of the
statements, and that the medical care provider relied on the statements to treat the
declarant. Taylor v. State, 268 S.W.3d 571, 588–91 (Tex. Crim. App. 2008).
                                         10
      In order to preserve error for appellate review, a party must object each time
inadmissible evidence is offered. Ethington v. State, 819 S.W.2d 854, 858 (Tex.
Crim. App. 1991). Here, the State asked Dr. Nauret to tell the jury what C.M. told
her. Defense counsel objected, and the trial court overruled the objection. The
trial court instructed the jury that it was not to consider the statements for the truth
of the matter asserted, but only to show the basis for treatment and diagnosis.
Dr. Nauret testified that C.M. told her that C.M. had come to see her because C.M.
was touched by “Matthew’s daddy, Giovanni.” Other evidence at trial showed that
Matthew was the son of A.G. and Appellant and that Appellant went by the name
Giovanni.     Appellant did not make any other hearsay objections during
Dr. Nauret’s testimony, nor did he request a running objection. Because Appellant
failed to object to any other portion of Dr. Nauret’s testimony concerning what
C.M. told her, he has not preserved error regarding any other statement.
      Appellant did preserve error as to the statement that C.M. came to see
Dr. Nauret because Giovanni touched her. However, even if we assume that this
statement was not made for the purpose of medical diagnosis and treatment and
that the trial court erred when it admitted the statement, the error was harmless
because the same statement was contained in Dr. Nauret’s report that the trial court
admitted without objection. See Hudson v. State, 675 S.W.2d 507, 511 (Tex. Crim.
App. 1984) (“an error in admission of evidence is cured where the same evidence
comes in elsewhere without objection”). Furthermore, the trial court instructed the
jury that it was not to consider the statement for the truth of the matter asserted.
We overrule Appellant’s fifth issue.
      In his fourth issue, Appellant argues that his counsel was ineffective because
counsel failed to request that the State make an election as to which act it was
relying on for conviction. In order to determine whether Appellant’s trial counsel
rendered ineffective assistance at trial, we must determine whether Appellant has
                                          11
shown that his counsel’s representation fell below an objective standard of
reasonableness and, if so, whether there is a reasonable probability that the result
would have been different but for trial counsel’s errors. Strickland v. Washington,
466 U.S. 668, 687 (1984); Hernandez v. State, 988 S.W.2d 770 (Tex. Crim. App.
1999); Hernandez v. State, 726 S.W.2d 53, 55–57 (Tex. Crim. App. 1986). We
must indulge a strong presumption that counsel’s conduct fell within the wide
range of reasonable professional assistance, and Appellant must overcome the
presumption that, under the circumstances, the challenged action could be
considered sound trial strategy. Strickland, 466 U.S. at 689; Tong v. State, 25
S.W.3d 707, 712 (Tex. Crim. App. 2000). Where the record is silent, we cannot
speculate on trial counsel’s strategy. Thompson v. State, 9 S.W.3d 808, 814 (Tex.
Crim. App. 1999). Thus, an allegation of ineffective assistance of counsel must be
firmly founded in the record, and the record must affirmatively demonstrate the
alleged ineffectiveness. Id. Generally, the record on direct appeal will not be
sufficient to show that trial counsel’s performance was so lacking as to overcome
the presumption of reasonable conduct. Id. at 813–14.
      Appellant directs us to the concurring opinion in Yzaguirre v. State, 957
S.W.2d 38 (Tex. Crim. App. 1997), for the proposition that defense counsel may
automatically be ineffective when he fails to request an election because there is no
imaginable strategic motivation for such a decision. The author of the concurring
opinion did not write that counsel was ineffective, he opined that counsel was
probably ineffective.   Yzaguirre, 957 S.W.2d at 40 (Meyers, J., concurring).
Furthermore, the issue was not specifically before the court, and the majority did
not address it.   We do not agree with Appellant’s argument that there is no
imaginable strategic motivation for defense counsel’s decision to not request an
election. As the State points out, defense counsel could have strategically chosen
not to request an election to avoid future prosecution for the other acts of abuse
                                         12
that C.M. described.        The burden is on Appellant to present a record that
establishes why trial counsel acted the way he did. Appellant has not overcome the
presumption that his counsel acted within the wide range of reasonable
professional assistance, and, thus, we cannot conclude that defense counsel’s
performance was deficient. See, e.g., Estevane v. State, No. 03-04-00257-CR,
2006 WL 504903, at *3 (Tex. App.—Austin Mar. 2, 2006, pet. ref’d) (failure to
request an election could have been strategic and does not automatically amount to
ineffective assistance of counsel). We overrule Appellant’s fourth issue.
         In his final issue, Appellant asserts that the trial court erred when it did not
declare a mistrial after the State, while cross-examining Appellant during the
guilt/innocence phase of the trial, wrongly accused him of having a prior
conviction.     The State questioned Appellant about a conviction for failure to
identify himself to law enforcement. Appellant denied that he was convicted of the
prior offense of failure to identify to a police officer. He told the prosecutor that it
was not him, but that it was his brother. After a recess, the prosecutor informed the
trial court that he had made a mistake and that the fingerprint examiner had veri-
fied that Appellant was not the same person in the judgment of conviction. The
trial court instructed the jury to disregard the testimony.
         Defense counsel never objected to the prosecutor’s line of questioning
regarding the prior conviction, nor did he argue that the instruction to disregard
was not sufficient to cure the error made by the State. Defense counsel also never
moved for a mistrial. A motion for mistrial must be timely and specific in order to
preserve error for appellate review. Griggs v. State, 213 S.W.3d 923, 927 (Tex.
Crim. App. 2007). Because Appellant did not present his complaint to the trial
court, he has waived error. TEX. R. APP. P. 33.1. We overrule Appellant’s sixth
issue.


                                            13
      We affirm the judgment of the trial court.




                                                   JIM R. WRIGHT
                                                   CHIEF JUSTICE


January 9, 2014
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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