                          COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH

                                NO. 02-13-00317-CR


CEASAR O. ESCAMILLA                                                      APPELLANT

                                          V.

THE STATE OF TEXAS                                                             STATE


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          FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY
                      TRIAL COURT NO. 1284259D

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                          MEMORANDUM OPINION1

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      Appellant Ceasar O. Escamilla appeals his conviction for aggravated

sexual assault of a child. Because we conclude that the evidence is sufficient to

support the jury’s verdict and that trial counsel was not constitutionally ineffective,

we affirm.




      1
       See Tex. R. App. P. 47.4.
                               I. BACKGROUND

      When M. was three, her parents, Appellant and Mother, divorced.

Appellant and Mother had a discordant relationship. M. lived with Mother and

visited Appellant about two weekends every month.

      When M. was ten, Appellant began inappropriately touching M. when M.

was at Appellant’s house. Appellant asked M. to lie down with him on his bed

while he watched pornography on the television. Appellant massaged M.’s back,

fondled her breasts, and touched her genitals with his hand. Over the years, the

abuse progressed to Appellant penetrating M.’s vagina with his penis,

penetrating M.’s vagina with a dildo, and putting his mouth on her genitalia.

Appellant would use a condom when penetrating her vagina.            On occasion,

Appellant would cover M.’s face with blankets or pillows while assaulting her.

Appellant penetrated M.’s vagina multiple times before and after M. turned

fourteen. M. was fifteen the last time Appellant had sex with her.

      When M. was thirteen, she told her friend C. that Appellant had raped her.

C., who was also thirteen, did not tell anyone about the conversation because M.

asked her not to. When M. was approximately fifteen, M. and Mother had a fight,

which was not unusual, and M. ran away. Mother called the police and instructed

them to take M. to a hospital for a mental evaluation.        M. did not tell the

responding police officers about Appellant’s abuse and could not remember if

she told anyone at the hospital about Appellant. A few months later, M. told

Mother’s friend, M.C., about Appellant’s abuse. M.C. told Mother, who called the


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police. M. described the abuse to a police officer, Sergeant M. L. Marks. M. was

taken to a hospital for a physical exam where the examining nurse determined

that M. had no hymenal tissue in a portion of her vagina, which was consistent

with M.’s allegations that Appellant penetrated her vagina with his penis. 2 M.

also described the abuse to the examining nurse.

      Appellant denied ever abusing M. and believed that M. made the

accusations because he did not buy her a car and because Mother coached M.

to do so. Mother also blamed M. for the family’s problems after M.’s outcry.

Appellant and Mother’s older child, V., stated that he had never seen Appellant

act inappropriately toward M. and that M.’s allegations strained his relationship

with M. Several of M.’s paternal relatives stated that M. had never confided in

them about the abuse even though they were a close family.

      A grand jury indicted Appellant with (1) sexual assault of a child younger

than fourteen by causing M.’s sexual organ to contact Appellant’s sexual organ

and (2) sexual assault of a child younger than fourteen by causing M.’s sexual

organ to contact Appellant’s mouth. See Tex. Penal Code Ann. § 22.021(a)

(West Supp. 2014). After hearing the above evidence, a jury found Appellant

guilty of the first count but not guilty of the second count and assessed his

punishment at 23 years’ confinement. Appellant appeals and argues that the



      2
      The examining nurse further explained, however, that the missing tissue
meant “something went inside the vagina,” not necessarily a penis.


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evidence was insufficient to support his conviction and that his trial counsel

rendered constitutionally ineffective assistance.

                     II. SUFFICIENCY OF THE EVIDENCE

      In his second point, Appellant argues that the evidence was insufficient to

support his conviction because there was “no physical evidence that Appellant

molested his daughter,” M. was “unreliable” as a witness and gave “inconsistent

testimony,” and no other witness corroborated M.’s allegations.

                             A. STANDARD OF REVIEW

      In our due-process review of the sufficiency of the evidence to support a

conviction, we view all of the evidence in the light most favorable to the verdict to

determine whether any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.

307, 319, 99 S. Ct. 2781, 2789 (1979); Winfrey v. State, 393 S.W.3d 763, 768

(Tex. Crim. App. 2013). The standard of review is the same for direct and

circumstantial evidence cases; circumstantial evidence is as probative as direct

evidence in establishing the guilt of an actor.      Winfrey, 393 S.W.3d at 771;

Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). We may not assess

the sufficiency of the evidence by focusing on what evidence the State did not

introduce. Chambers v. State, 711 S.W.2d 240, 245 (Tex. Crim. App. 1986).

      The trier of fact is the sole judge of the weight and credibility of the

evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Winfrey, 393

S.W.3d at 768. Thus, when performing an evidentiary sufficiency review, we


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may not re-evaluate the weight and credibility of the evidence and substitute our

judgment for that of the fact-finder. Isassi v. State, 330 S.W.3d 633, 638 (Tex.

Crim. App. 2010). Instead, we determine whether the necessary inferences are

reasonable based upon the cumulative force of the evidence when viewed in the

light most favorable to the verdict. Sorrells v. State, 343 S.W.3d 152, 155 (Tex.

Crim. App. 2011); see Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App.

2013). We must presume that the fact-finder resolved any conflicting inferences

in favor of the verdict and defer to that resolution. Jackson, 443 U.S. at 326, 99

S. Ct. at 2793; Temple, 390 S.W.3d at 360.

                                 B. APPLICATION

      Appellant is correct that no DNA, blood, or photographic evidence

connected him to a sexual assault of M. But we may not focus on what evidence

is missing. See Chambers, 711 S.W.2d at 245. We must focus on the admitted

evidence and determine whether the inferences from that evidence are

reasonable based upon the evidence’s cumulative force when viewed in the light

most favorable to the verdict.       Similarly, the fact that no other witness

corroborated M.’s outcry testimony is not fatal to the jury’s verdict because a

child complainant’s testimony standing alone is sufficient to support a conviction.

See Tex. Code Crim. Proc. Ann. art. 38.07 (West Supp. 2014). Therefore, the

absence of physical evidence or corroboration does not, ipso facto, result in a

conclusion that the evidence was insufficient to support the jury’s verdict. See




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Cantu v. State, 366 S.W.3d 771, 776 (Tex. App.—Amarillo 2012, no pet.); Ozuna

v. State, 199 S.W.3d 601, 606 (Tex. App.—Corpus Christi 2006, no pet.).

      Appellant next argues that M. was an unreliable and inconsistent witness

who could not provide the quantum of evidence necessary to justify his

conviction. Appellant points to details in M.’s trial testimony that did not comport

with the details given during her outcry and to M.’s admission that she lied about

being pregnant when she finally told M.C. about the abuse. This argument strays

from the appropriate standard of review.         We may not evaluate a witness’s

credibility as that is the sole province of the fact-finder. See Tex. Code Crim.

Proc. Ann. art. 38.04; Winfrey, 393 S.W.3d at 768. Thus, in accordance with this

review standard, we look to the cumulative force of the admitted evidence in the

deferential light most favorable to the jury’s verdict.

      The evidence admitted at trial showed that Appellant sexually assaulted M.

over a period of years, with many of the abuses including penile penetration

when M. was younger than fourteen. Two years before her outcry to M.C., M.

confided in C. that Appellant had raped her. When M. was fifteen, M. told police

officers and an examining nurse that Appellant had penetrated her vagina with

his penis when she was younger than fourteen. Further, the forensic interviewer,

who talked to M. shortly after her outcry, testified that M. knew details of the

sexual assaults that coached accusers generally do not know.          Although the

majority of the evidence implicating Appellant was introduced through M.’s

testimony, we may not re-evaluate whether M. was credible or not. We may only


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view her testimony in the light most favorable to the verdict. The cumulative

force of this evidence shows that the jury’s verdict was based on the reasonable

inference that Appellant sexually assaulted M. when she was younger than

fourteen.   See, e.g., Torres v. State, 424 S.W.3d 245, 253–54 (Tex. App.—

Houston [14th Dist.] 2014, pet. ref’d); Woolridge v. State, No. 04-12-00402-CR,

2014 WL 667500, at *5 (Tex. App.—San Antonio Feb. 19, 2014, no pet.) (mem.

op., not designated for publication); Montgomery v. State, 415 S.W.3d 580, 582

(Tex. App.—Amarillo 2013, pet. ref’d); Landrum v. State, No. 10-08-00359-CR,

2010 WL 3342003, at *2–3 (Tex. App.—Waco Aug. 25, 2010, pet. ref’d) (mem.

op., not designated for publication); Martinez v. State, 313 S.W.3d 358, 363 (Tex.

App.—Houston [1st Dist.] 2009, pet. ref’d). Thus, the evidence was sufficient,

and we overrule Appellant’s second point.

                III. INEFFECTIVE ASSISTANCE OF COUNSEL

      In his first point, Appellant argues that his trial counsel was constitutionally

ineffective for failing to object to the State’s closing argument to the jury because

the State’s argument was improper and prejudicial. Appellant asserts that by

failing to object to the argument, trial counsel “effectively foreclosed the

possibility of direct appeal of the admission of these arguments.”

      The test to determine the effectiveness of counsel requires Appellant to

show by a preponderance of the evidence that (1) counsel’s representation fell

below the standard of prevailing professional norms and (2) there is a reasonable

probability that, but for these unprofessional errors, the outcome of the


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proceeding would have been different. Strickland v. Washington, 466 U.S. 668,

687–89, 104 S. Ct. 2052, 2064–65 (1984); Menefield v. State, 363 S.W.3d 591,

592 (Tex. Crim. App. 2012).       Review of counsel’s representation is highly

deferential, and the reviewing court indulges a strong presumption that counsel’s

conduct fell within a wide range of reasonable representation. Salinas v. State,

163 S.W.3d 734, 740 (Tex. Crim. App. 2005); Mallett v. State, 65 S.W.3d 59, 63

(Tex. Crim. App. 2001).

       Direct appeal is usually an inadequate vehicle for raising an ineffective-

assistance-of-counsel claim because the record is generally undeveloped.

Menefield, 363 S.W.3d at 592–93; Thompson v. State, 9 S.W.3d 808, 813 (Tex.

Crim. App. 1999). This statement is true with regard to the deficient-performance

prong of the inquiry when counsel’s reasons for failing to do something do not

appear in the record. Menefield, 363 S.W.3d at 593; Thompson, 9 S.W.3d at

813.   It is not appropriate for an appellate court to simply infer ineffective

assistance based upon unclear portions of the record.        Mata v. State, 226

S.W.3d 425, 432 (Tex. Crim. App. 2007). Trial counsel “should ordinarily be

afforded an opportunity to explain his actions before being denounced as

ineffective.”   Menefield, 363 S.W.3d at 593 (quoting Rylander v. State, 101

S.W.3d 107, 111 (Tex. Crim. App. 2003)). If trial counsel is not given that

opportunity, then the appellate court should not find deficient performance unless

the challenged conduct was “so outrageous that no competent attorney would




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have engaged in it.” Id. (quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim.

App. 2001)).

      During the State’s closing argument, the prosecutor argued that (1)

Appellant’s then-current relationship with a much younger woman meant he liked

“younger bodies” and showed a predilection toward sexual offenses against

children, (2) Appellant’s active sex life with his girlfriend showed he was “a pretty

sexualized person,” (3) Appellant’s calm in the face of M.’s accusations indicated

his guilt, and (4) M.’s history of cutting herself corroborated her outcry. Appellant

asserts many of these arguments were not supported by admitted evidence and

characterizes them as “manifestly harmful,” “highly prejudicial,” “outrageous,”

“egregious,” “absurd,” and “bizarre.”    But Appellant did not cite to any legal

authority to support his assertion that the arguments were erroneous. Further,

Appellant did not raise these alleged omissions in a motion for new trial and

raises them here for the first time. As a result, there is no record by which we

may evaluate counsel’s reasons for failing to object to these arguments. To

conclude counsel’s performance was deficient, we would have to engage in

prohibited speculation. See Lopez v. State, 343 S.W.3d 137, 143–44 (Tex. Crim.

App. 2011).

      Absent a record explaining counsel’s reasoning for failing to object, we

may not conclude that counsel was constitutionally deficient. See, e.g., Kuhn v.

State, 393 S.W.3d 519, 539 (Tex. App.—Austin 2013, no pet.); Paul v. State, 419

S.W.3d 446, 461–62 (Tex. App.—Tyler 2012, pet. ref’d). Although Appellant is


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correct that the court of criminal appeals has recognized that some failures by

counsel are self-evident such that a record is not necessary to evaluate counsel’s

performance, this is not such “a rare case.” Andrews v. State, 159 S.W.3d 98,

102–03 (Tex. Crim. App. 2005); see Paul, 419 S.W.3d at 462 (distinguishing

Andrews and concluding deficient performance could not be assayed in the

absence of a record explaining why trial counsel failed to object to improper jury

argument); Davis v. State, 830 S.W.2d 762, 766 (Tex. App.—Houston [1st Dist.]

1992, pet ref’d) (“Even the failure to object to improper jury argument does not

ordinarily reflect ineffective assistance.”). Appellant has not met his burden to

show that his counsel’s conduct was not the result of a sound trial strategy. 3 We

overrule Appellant’s first point.




      3
        Even if defense counsel’s failure to object to the prosecutor’s closing
argument was deficient conduct, the jury heard direct evidence from the
complainant on every element of the offense charged. Appellant failed to meet
the second prong of Strickland—that there was a reasonable probability that the
result of the trial would have been different had the objections to the arguments
been sustained. See Washington v. State, 771 S.W.2d 537, 545 (Tex. Crim.
App. 1989).


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                               IV. CONCLUSION

      Having overruled Appellant’s points, we affirm the trial court’s judgment.

See Tex. R. App. P. 43.2(a).




                                                 /s/ Lee Gabriel

                                                 LEE GABRIEL
                                                 JUSTICE

PANEL: MCCOY, MEIER, and GABRIEL, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: September 11, 2014




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