Opinion filed February 27, 2014




                                        In The


          Eleventh Court of Appeals
                                     __________

                                  No. 11-11-00328-CR
                                      __________

                     DANIEL HERNANDEZ, Appellant
                                          V.
                     THE STATE OF TEXAS, Appellee


                     On Appeal from the 350th District Court
                                  Taylor County, Texas
                           Trial Court Cause No. 9457-D



                     MEMORANDUM OPINION
      The jury convicted Daniel Hernandez of aggravated sexual assault and
assessed his punishment at confinement in the Institutional Division of the Texas
Department of Criminal Justice for a term of ten years. The jury additionally
imposed a fine of $5,000. Appellant challenges his conviction in three issues. We
affirm.
                                      Background Facts
           Abilene Police Officer Patrick Perez received a report on March 13, 2006,
from Gloria Hermosillo that her physically disabled adult son, PSEUMT, 1 had
been sexually assaulted. Officer Perez met with Hermosillo and PSEUMT on that
date. PSEUMT told him that he had been “anally raped” by Appellant. Officer
Perez turned the case over to Detective Thomas Valdez.
       Detective Valdez met with PSEUMT and Hermosillo on March 14, 2006.
PSEUMT informed Detective Valdez that Appellant sexually assaulted him at his
mother’s apartment in Abilene in late December 2005. Both Officer Perez and
Detective Valdez testified that PSEUMT was crying and upset when he reported
the assault to them.        Detective Valdez further testified that PSEUMT sought
medical treatment on December 26, 2005, for rectal bleeding as a result of the
assault.
       Detective Valdez contacted Appellant, and Appellant voluntarily came in for
an interview. Appellant told Detective Valdez that he was homosexual and that he
and PSEUMT engaged in consensual anal sex at PSEUMT’s request. Appellant
alleged that the act occurred after he and Hermosillo had been “clubbing.”
Appellant denied prior sexual conduct with PSEUMT during his meeting with
Detective Valdez.
       Hermosillo testified that PSEUMT is physically disabled as a result of a car
accident and that he cannot walk without the aid of crutches. 2 PSEUMT resides
with her because he cannot support himself financially. Hermosillo worked with
Appellant several years earlier. She testified that they had been friends for a long

       1
         The alleged victim was referred to in the indictment and jury charge as “PSEUMT,” and the
parties have continued to use this pseudonym in their briefs. We will also use this pseudonym in our
opinion.
       2
         The medical records from the medical treatment that PSEUMT received on December 26, 2005,
indicated that he was paraplegic.

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time and that he “was like [a] brother” to her. Hermosillo further testified that
Appellant and PSEUMT were not friends and did not visit or socialize. She also
testified that Appellant is homosexual.
      PSEUMT did not tell Hermosillo about the alleged assault until a few
months after it happened. He told her about it when she told him that she was
going to ask Appellant for some money for cigarettes. PSEUMT told her that he
did not want her to ask Appellant for anything because Appellant sexually
assaulted him the last time they were together.
      PSEUMT was nineteen years old at the time of the assault. He testified that
he is paralyzed from the chest down as a result of a car accident in 2002. He also
testified that he cannot stand or walk without crutches and that he is impotent. He
had known Appellant for thirteen years because Appellant and his mother
socialized, but he did not socialize with Appellant. PSEUMT testified he knew
Appellant was homosexual. PSEUMT stated that he is heterosexual.
      PSEUMT testified that Appellant “anally raped” him. The incident occurred
after Appellant entered PSEUMT’s bedroom on multiple occasions after returning
to Hermosillo’s apartment. PSEUMT testified that he was asleep when Appellant
came into his room on a previous occasion and asked PSEUMT, “Have you ever
thought about being gay?” Appellant also rubbed his genitals (with his pants still
on) against PSEUMT’s arm on a previous visit to PSEUMT’s room. PSEUMT
responded by calling for Hermosillo to get Appellant out of his room. Appellant
told Hermosillo that he was “just playing” with PSEUMT.
      The alleged assault occurred during a subsequent visit by Appellant to
PSEUMT’s room. PSEUMT testified that he tried to leave his room on this
occasion but that he was unable to do so. Appellant put PSEUMT in a headlock,
causing him to pass out. PSEUMT attempted to defend himself but he was unable
to use his legs to repel Appellant. PSEUMT eventually awoke with Appellant on
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top of him penetrating his anus with Appellant’s penis. PSEUMT testified that he
was sick the next day and that he eventually went to the hospital because of anal
bleeding. He further testified that it took him two weeks to recover from the
physical trauma he suffered as a result of the sexual assault.
      Appellant testified on his own behalf during the guilt/innocence phase.
During his testimony, he acknowledged that he was homosexual and that PSEUMT
was aware of it. Appellant testified that PSEUMT propositioned him and put his
hands on Appellant on the night the sexual encounter occurred. He also testified
that PSEUMT was watching a pornographic film and that PSEUMT had an
erection at the time.     Appellant testified that he and PSEUMT engaged in
consensual sex. On cross-examination, Appellant testified that PSEUMT may
have fabricated the allegation against him because Appellant stopped having sex
with him.
                                        Issues
      In his first issue, Appellant challenges the sufficiency of the evidence.
Appellant’s second issue concerns the admission of extraneous conduct evidence.
In his third issue, Appellant alleges that his trial counsel was ineffective by failing
to secure the attendance of a material witness.
                             Sufficiency of the Evidence
      We review a sufficiency of the evidence issue, regardless of whether it is
denominated as a legal or factual claim, 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 review all of the
evidence in the light most favorable to the verdict and determine whether any
rational trier of fact could have found the elements of the offense beyond a
reasonable doubt. Jackson, 443 U.S. at 319; Isassi v. State, 330 S.W.3d 633, 638
                                          4
(Tex. Crim. App. 2010). In conducting a sufficiency review, we defer to the jury’s
role as the sole judge of the witnesses’ credibility and the weight their testimony is
to be afforded. Brooks, 323 S.W.3d at 899. This standard accounts for the
factfinder’s duty to resolve conflicts in the testimony, to weigh the evidence, and to
draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at
319; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). When the
record supports conflicting inferences, we presume that the factfinder resolved the
conflicts in favor of the prosecution and defer to that determination. Jackson, 443
U.S. at 326; Clayton, 235 S.W.3d at 778.
      The indictment charged Appellant with “intentionally and knowingly
sexually [assaulting] PSEUMT, a disabled individual, by causing his male sexual
organ to penetrate the anus of the said PSEUMT, without the said PSEUMT’s
consent, and the said [Appellant] compelled the said PSEUMT to submit and
participate by the use of physical force and violence.” See TEX. PENAL CODE ANN.
§ 22.021 (West Supp. 2013). As set out above, PSEUMT testified that Appellant
engaged in the conduct alleged in the indictment.          Appellant contends that
PSEUMT’s testimony “was simply not conclusive enough” to permit the jury to
determine that Appellant engaged in the charged conduct. He further contends that
PSEUMT’s version of the encounter was undermined by his belated outcry of a
few months, the fact that his mother did not initially believe his allegation, and the
lack of corroborating evidence.
      PSEUMT and Appellant offered contradictory versions of what transpired.
As noted previously, we presume that the jury resolved any conflicts in the
evidence in favor of the prosecution, and we defer to that determination in
conducting our review of the evidence. The jury’s determination to accept
PSEUMT’s version of the events was a decision based inherently on its evaluation


                                           5
of the credibility of the witnesses, a decision that is within the jury’s sole province
to resolve.
      PSEUMT’s outcry a few months after the alleged assault satisfied the one-
year statutory requirement for adult victims of sexual assault. TEX. CODE CRIM.
PROC. ANN. art. 38.07(a) (West Supp. 2013) (A conviction for aggravated sexual
assault “is supportable on the uncorroborated testimony of the victim of the sexual
offense if the victim informed any person, other than the defendant, of the alleged
offense within one year after the date on which the offense is alleged to have
occurred.”). The fact that PSEUMT’s mother initially did not believe him is not
surprising given the extreme nature of the conduct alleged and her close
relationship to Appellant. Viewing the evidence in the light most favorable to the
verdict, we conclude that a rational trier of fact could have found that Appellant
sexually assaulted PSEUMT as alleged in the indictment. Appellant’s first issue is
overruled.
                           Extraneous Conduct Evidence
      Appellant asserts in his second issue that the trial court erred in permitting
the State to offer testimony from PSEUMT during its rebuttal case that Appellant
sexually assaulted him on at least four occasions when he was twelve or thirteen.
Appellant asserts that this evidence was not admissible under TEX. R. EVID. 404(b).
      The State attempted to offer evidence during its case-in-chief of instances
where Appellant sexually assaulted PSEUMT when PSEUMT was twelve or
thirteen.     The State asserted that this evidence was being offered to show
Appellant’s state of mind at the time of the alleged assault, to show Appellant’s
opportunity because of PSEUMT’s physical disability to commit an act that he
previously attempted to commit, and to show absence of mistake or accident. The
trial court denied the State’s initial attempt to offer this evidence. The State sought
to reoffer evidence of Appellant’s prior acts during its rebuttal case on the basis
                                          6
that the evidence rebutted Appellant’s assertion that he had never had sexual
contact with PSEUMT prior to the alleged assault. The trial court subsequently
permitted the State to offer this evidence.
      An appellate court reviewing a trial court’s ruling on the admissibility of
evidence must utilize an abuse-of-discretion standard of review. Weatherred v.
State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000). The trial court’s ruling will be
upheld if it is found to be within the zone of reasonable disagreement.           Id.;
Sexton v. State, 93 S.W.3d 96, 99 (Tex. Crim. App. 2002). A trial court’s ruling on
the admissibility of evidence will be upheld if the record reasonably supports the
ruling and is correct under any theory of law applicable to the case.           Brito
Carrasco v. State, 154 S.W.3d 127, 129 (Tex. Crim. App. 2005). A trial court’s
ruling on extraneous offense evidence is generally within the zone of reasonable
disagreement if the evidence shows that an extraneous transaction is relevant to a
material, non-propensity issue. De La Paz v. State, 279 S.W.3d 336, 344 (Tex.
Crim. App. 2009) (citing Santellan v. State, 939 S.W.2d 155, 169 (Tex. Crim. App.
1997)).
      Evidence of other crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show action in conformity therewith under
Rule 404(b). It may, however, be admissible for other purposes, such as proof of
motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of
mistake or accident. Id. The exceptions listed under Rule 404(b) are neither
mutually exclusive nor collectively exhaustive. De La Paz, 279 S.W.3d at 343.
“Rule 404(b) is a rule of inclusion rather than exclusion.” Id. “The rule excludes
only that evidence that is offered (or will be used) solely for the purpose of proving
bad character and hence conduct in conformity with that bad character.” Id.
(citing Rankin v. State, 974 S.W.2d 707, 709 (Tex. Crim. App. 1996)).


                                          7
      Rebuttal of a defensive theory is one of the permissible purposes for which
extraneous offense evidence may be admitted. See Moses v. State, 105 S.W.3d
622, 626 (Tex. Crim. App. 2003). Further, extraneous offenses are admissible to
rebut theories raised by the testimony of a defense witness during direct
examination or a State’s witness during cross-examination. See Daggett v. State,
187 S.W.3d 444, 453–54 (Tex. Crim. App. 2005); Ransom v. State, 920 S.W.2d
288, 301 (Tex. Crim. App. 1996).
      As reflected in his testimony during the guilt/innocence phase of trial,
Appellant asserted that PSEUMT consented to the alleged sexual encounter.
“[W]hen the defensive theory of consent is raised in a prosecution for sexual
assault, the defendant necessarily disputes his intent to engage in the alleged
conduct without the complainant’s consent and places his intent to commit sexual
assault at issue.” Casey v. State, 215 S.W.3d 870, 880 (Tex. Crim. App. 2007).
Evidence of prior instances of sexual assault committed by Appellant on PSEUMT
would tend to rebut Appellant’s defensive theory of consent. Therefore, the trial
court did not err in determining that the evidence was admissible under
Rule 404(b). Appellant’s second issue is overruled.
                         Ineffective Assistance of Counsel
      Appellant asserts in his third issue that he was denied effective assistance of
counsel because trial counsel failed to secure the attendance of a material witness.
The standard of review for ineffective assistance of counsel is set forth in
Strickland v. Washington, 466 U.S. 668 (1984), and Bone v. State, 77 S.W.3d 828
(Tex. Crim. App. 2002). To prevail, Appellant must first show that his counsel’s
performance was deficient. Strickland, 466 U.S. at 687; Bone, 77 S.W.3d at 833.
“Specifically, [an] appellant must prove, by a preponderance of the evidence, that
his counsel’s representation fell below the objective standard of professional
norms.” Bone, 77 S.W.3d at 833. “Second, [an] appellant must show that this
                                         8
deficient performance prejudiced his defense,” meaning that Appellant “must show
a reasonable probability that, but for his counsel’s unprofessional errors, the result
of the proceeding would have been different.” Id. (quoting Mitchell v. State, 68
S.W.3d 640, 642 (Tex. Crim. App. 2002)). A “reasonable probability” is one
“sufficient to undermine confidence in the outcome.” Id. “It is not sufficient for
[an appellant] to show ‘that the errors had some conceivable effect on the outcome
of the proceeding.’” Ex parte Martinez, 330 S.W.3d 891, 901 (Tex. Crim. App.
2011) (quoting Strickland, 466 U.S. at 693). “Rather, [an appellant] must show
that ‘there is a reasonable probability that, absent the errors, the factfinder would
have had a reasonable doubt respecting guilt.’” Id. (quoting Strickland, 466 U.S. at
695). Thus, the “benchmark for judging any claim of ineffectiveness must be
whether counsel’s conduct so undermined the proper functioning of the adversarial
process that the trial cannot be relied on as having produced a just result.”
Strickland, 466 U.S. at 686.
      There is a strong presumption that counsel’s conduct fell within the wide
range of reasonable professional assistance, and the defendant must overcome the
presumption that the challenged action might be considered sound trial strategy.
Strickland, 466 U.S. at 689.       To overcome the presumption of reasonable
professional assistance, “any allegation of ineffectiveness must be firmly founded
in the record, and the record must affirmatively demonstrate the alleged
ineffectiveness.” Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999).
“Direct appeal is usually an inadequate vehicle for raising such a claim because the
record is generally undeveloped.” Goodspeed v. State, 187 S.W.3d 390, 392 (Tex.
Crim. App. 2005). When determining the validity of an ineffective-assistance-of-
counsel claim, judicial review must be highly deferential to trial counsel and avoid
the deleterious effects of hindsight. Ingham v. State, 679 S.W.2d 503, 509 (Tex.
Crim. App. 1984).
                                          9
      Appellant presented his ineffectiveness allegation in a motion for new trial
that the trial court denied after conducting a hearing. An appellate court reviews a
trial court’s denial of a motion for new trial for an abuse of discretion, reversing
only if the trial court’s ruling was clearly erroneous and arbitrary. Riley v. State,
378 S.W.3d 453, 457 (Tex. Crim. App. 2012).
      Appellant alleged in the motion that Lupe Ramos would have testified at
trial that the sexual intercourse between Appellant and PSEUMT was consensual.
Appellant additionally alleged that Ramos would have testified that, “as far as
[Ramos] knew, PSEUMT was not crippled or disabled.” Appellant asserted that he
informed trial counsel about Ramos and his testimony when trial counsel was
initially appointed to represent him. Appellant supported these allegations with
affidavits from Ramos and himself.
      Both Appellant and Ramos testified at the hearing on the motion for new
trial. Appellant testified that he told trial counsel about Ramos when trial counsel
was initially appointed and that he provided trial counsel with Ramos’s contact
information. Appellant additionally testified that he spoke with Ramos on the day
that the trial started. Appellant stated that he asked Ramos to call trial counsel but
that Ramos told him he was busy and could not do so. Appellant testified that,
when he relayed this information to trial counsel, trial counsel told him to call
Ramos back and tell him to be at the courthouse the next morning.
      On direct examination, Ramos testified that he observed Appellant and
PSEUMT engaging in consensual sex. Ramos also testified that he observed
PSEUMT walking and that he did not believe that PSEUMT was disabled. On
cross-examination conducted by the prosecutor, Ramos testified that he had
observed PSEUMT walking with the aid of only a small cane. Ramos additionally
testified on cross-examination that he “didn’t see much” in observing Appellant
and PSEUMT from the hallway. Ramos further admitted that he did not know if
                                         10
the conduct between Appellant and PSEUMT was consensual or forced. Under
further questioning by the trial court and the attorneys, Ramos testified that he had
only observed “touching” between the two while they were both standing. He
concluded his testimony by denying that he saw Appellant and PSEUMT engaging
in sexual intercourse despite what he stated in his affidavit.3
      A claim of ineffective assistance based on trial counsel’s failure to call a
witness cannot succeed absent a showing that the witness was available to testify
and that the witness’s testimony would have benefited the defense. See Ex parte
Ramirez, 280 S.W.3d 848, 853 (Tex. Crim. App. 2007). We direct our analysis on
the issue of whether or not Ramos’s testimony would have benefited Appellant.
Ramos’s testimony at the hearing on the motion for new trial was equivocal at best.
He did not observe Appellant and PSEUMT engaging in sexual intercourse.
Instead, he very briefly observed them engaging in conduct prior to intercourse.
The observation was so brief that he was not able to determine whether it was
consensual or forced.               In light of Ramos’s very brief observation of a prior
interaction that he was unable to determine was forced or consensual, we conclude
that the trial court did not abuse its discretion in reaching its implicit determination
that Appellant would not have benefited from Ramos’s testimony at trial.
      Moreover, Appellant’s trial counsel did not testify at the hearing on the
motion for new trial. Prevailing on an ineffective assistance claim is very difficult
without trial counsel explaining his strategy. See Goodspeed, 187 S.W.3d at 392.
Trial counsel called Ramos as a witness at trial, but he was not present to testify.
Even if trial counsel’s only reason for failing to subpoena Ramos was his belief
      3
          In his affidavit, Ramos stated in relevant part as follows:

              I, LUPE RAMOS, Affiant, was present on or about December 30, 2005, at the time of the
      sexual conduct between [Appellant] and PSEUMT, and that such sexual conduct, in which
      [Appellant] penetrated the anus of PSEUMT with his male sexual organ, was completely
      consensual and did not involve any physical force and violence on the part of [Appellant] against
      PSEUMT.

                                                           11
that Ramos would appear, Appellant has not overcome the presumption that this
fell within the wide range of reasonable professional assistance. See Strickland,
466 U.S. at 687.
      Appellant did not satisfy his burden to meet the first prong of Strickland to
establish ineffective assistance of counsel. Accordingly, the trial court did not
abuse its discretion in overruling his motion for new trial. Appellant’s third issue
is overruled.
                                   This Court’s Ruling
       We affirm the judgment of the trial court.




                                                     JOHN M. BAILEY
                                                     JUSTICE

February 27, 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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