Bobby Glenn Barrow v. State

IN THE TENTH COURT OF APPEALS No. 10-03-00196-CR BOBBY GLEN BARROW, Appellant v. STATE OF TEXAS, Appellee From the 40th District Court Ellis County, Texas Trial Court # 26914CR MEMORANDUM Opinion Appellant, Bobby Glenn Barrow, was tried before a jury and convicted on two counts of sexual assault of a child. Tex. Pen. Code Ann. § 22.011 (Vernon Supp. 2004-05). The jury assessed punishment at 15 years’ confinement on count one and 20 years on count two. The trial court ordered that the sentences run consecutively. Barrow appeals on ten issues: three concerning factual sufficiency; five concerning cumulative sentences; and two concerning ineffectiveness of counsel. We will overrule the issues and affirm the judgment. BACKGROUND Barrow was charged on two counts of sexual assault arising out of the same incident, alleged to have occurred on or about September 28, 2002. The victim, who was 15 years old at the time and is Barrow’s niece, was visiting Barrow and his family in Ferris. She and her 13 year-old cousin drank Smirnoff Ice alcoholic beverages purchased by Barrow. She testified that she drank four bottles, got sick, and threw up. She then went to sleep on a bed with her aunt (Barrow’s wife). She awoke, felt Barrow’s hand on her stomach and then inside her pants and underwear. She testified that he took off her pants and underwear and put his tongue inside her private area. He then took her into another bedroom, put her legs on his shoulders, and put his penis inside her. He put his penis in her mouth and “comed” in her mouth. Factual Sufficiency Barrow’s first two issues argue that the evidence is factually insufficient to support the two counts of sexual assault. We review factual sufficiency by considering all of the evidence in a neutral light to determine whether a jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, No. 539-02, 2004 WL 840786, at *7 (Tex. Crim. App. April 21, 2004). Barrow argues that there was no DNA evidence, and he testified that no sexual activity occurred. The victim informed the school nurse on October 7, 2002, that her uncle had had sex with her. She was medically examined on October 8, 2002. No evidence was collected for DNA testing because of the length of time between the exam and the incident. A photograph of the victim’s hymen was introduced into evidence, and the nurse examiner testified that a tear in the hymen indicated penetration had occurred. The victim testified that Barrow put his penis in her vagina and in her mouth. The uncorroborated testimony of a child victim is sufficient to support a conviction for aggravated sexual assault. See Tex. Code Crim. Proc. Ann. art. 38.07 (Vernon Supp. 2004-05). Considering all of the evidence in a neutral light, the jury was rationally justified in finding beyond a reasonable doubt that Barrow caused the victim’s sexual organ to be penetrated by his sexual organ and that Barrow caused the victim’s mouth to be penetrated by his sexual organ. Zuniga, 2004 WL 840786, at *7. The evidence is factually sufficient to support both counts. Barrow’s third issue contends that the standard of review for factual insufficiency is incorrect. We decline Barrow’s invitation to question the standard set forth by precedent.[1] We overrule these issues. Sentencing Barrow’s fourth issue contends that the trial court erroneously cumulated his sentences in violation of section 3.03 of the penal code. That section provides in part that when an accused is found guilty of more than one offense arising out of the same criminal episode, and the offenses are violations of section 22.011 committed against a victim younger than 17 years old, the sentences may run either concurrently or consecutively. Tex. Pen. Code Ann. § 3.03(b) (Vernon 2003). However, Barrow points out that the section does not designate who may make the decision to run the sentences consecutively. He argues that because the jury determined punishment, the jury, not the trial judge, should determine whether to cumulate the sentences. However, the Code of Criminal Procedure vests the trial court with discretion to order concurrent or consecutive sentences. Tex. Code Crim. Proc. Ann. art. 42.08 (Vernon Supp. 2004-05); see also Pena v. State, 102 S.W.3d 450, 456 (Tex. App.—Eastland 2003, no pet.); Nicholas v. State, 56 S.W.3d 760, 764 (Tex. App.—Houston [14th Dist.] 2001, pet. ref’d). We overrule this issue. Barrow’s fifth and sixth issues contend that allowing a judge to decide whether to cumulate sentences, even though Barrow elected to have the jury determine his punishment, violates his constitutional right to a jury trial and his constitutional right to due process. U.S. Const. amend. VI. The Court of Criminal Appeals has upheld the constitutionality of article 42.08. Johnson v. State, 492 S.W.2d 505, 506 (Tex. Crim. App. 1973); Hammond v. State, 465 S.W.2d 748, 752 (Tex. Crim. App. 1971). We overrule these issues. Barrow’s seventh issue argues that, by ordering that the sentences run consecutively, the trial court suspended the twenty-year sentence in violation of article 42.08, which provides in part that the cumulative total of suspended sentences in felony cases shall not exceed 10 years. Tex. Code Crim. Proc. Ann. art. 42.08. Barrow argues that his cumulated sentence is equivalent to a suspended sentence. However, the statute itself distinguishes between “imposed” and “suspended” sentences in describing cumulative sentencing: “the judgment in the second and subsequent convictions may either be that the sentence imposed or suspended shall begin when the judgment and the sentence imposed or suspended in the preceding conviction has ceased to operate. . . .” Id. The statute permits a trial court to cumulate either “imposed” or “suspended” sentences, but prohibits it from cumulating “suspended” sentences in excess of ten years. Because Barrow’s sentence was not a suspended sentence for the purposes of article 42.08, the trial court did not violate the article when it cumulated the sentences. We overrule this issue. Barrow’s eighth issue argues that the trial court’s failure to warn him that his sentences could be cumulated violated his due process rights. Barrow cites no authority for his proposition that a trial court has a duty to warn defendants that it has the authority to stack sentences. The Court of Criminal Appeals has rejected the argument that a trial court must admonish a defendant entering a guilty plea that the court has authority to stack sentences. Simmons v. State, 457 S.W.2d 281, 282 (Tex. Crim. App. 1970). The trial court was not required to admonish Barrow that his sentences could be cumulated. We overrule this issue. Ineffectiveness of Counsel Barrow’s ninth and tenth issues contend that trial counsel rendered ineffective assistance during the guilt/innocence and punishment phases of the trial. To establish a claim of ineffective assistance of counsel, the appellant must show that counsel’s assistance fell below an objective standard of reasonableness and that counsel’s deficient performance, if any, prejudiced the defendant. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2063 (1984). The review of defense counsel’s representation is highly deferential and presumes that counsel’s actions fell within a wide range of reasonable professional assistance. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). When the record is silent as to defense counsel’s subjective motivations, we will ordinarily presume that the challenged action might be considered sound trial strategy. Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003). There is no record of trial counsel’s strategy or motivations for the actions of which Barrow complains. He has not overcome the presumption that counsel’s actions might be considered sound trial strategy. Stafford v. State, 813 S.W.2d 503, 506 (Tex. Crim. App. 1991).[2] We overrule these issues. CONCLUSION Having overruled all of the issues, we affirm the judgment. BILL VANCE Justice Before Chief Justice Gray, Justice Vance, and Justice Reyna Affirmed Opinion delivered and filed December 29, 2004 Do not publish [CRPM] [1] Barrow’s brief was filed prior to the Zuniga decision. [2] We are cognizant of our recent holding in Loredo that a defendant’s counsel’s failure to request notice of the State’s intent to introduce evidence of extraneous offenses is unreasonable and not justifiable as sound trial strategy. Loredo v. State, No. 10-01-0078-CR, 2004 Tex. App. LEXIS 11122, at *6-7 (Tex. App.—Waco Dec. 8, 2004, no pet. h.). Barrow asserts that his trial counsel failed to make such a request. The record does not reveal whether Barrow’s trial counsel made such a request or not. Even if trial counsel should have made such a request and did not, the record does not indicate prejudice because Barrow’s counsel was not surprised by the testimony regarding the extraneous offenses. The record also shows that the extraneous offenses were mentioned during a pretrial hearing on application for writ of habeas corpus. The record also shows that the trial court had a standing pretrial order requiring the State to provide notice of extraneous offenses it intended to prove at trial. Thus even if the first prong of the Strickland test were met, the second prong, requiring Barrow to show that but for the alleged error the result of the proceeding would have been different, would not be. See Strickland, 466 U.S. at 694, 104 S.Ct. at 2068; Loredo, 2004 Tex. App. LEXIS 11122, at *6-7.