Jose Luis Rodriguez v. State

NUMBER 13-06-393-CR COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG JOSE LUIS RODRIGUEZ, Appellant, v. THE STATE OF TEXAS, Appellee. On appeal from the 93rd District Court of Hidalgo County, Texas MEMORANDUM OPINION Before Chief Justice Valdez and Justices Rodriguez and Garza Memorandum Opinion by Justice Rodriguez Memorandum Opinion Appellant, Jose Rodriguez, was charged by indictment with one count of the second degree felony of indecency with a child. Rodriguez pleaded not guilty and proceeded to trial by jury which found Rodriguez guilty and assessed punishment at ten years in the Institutional Division of the Texas Department of Criminal Justice, with a recommendation that he be placed on community supervision. Tex. Penal Code Ann. § 21.11 (a)(1) (Vernon 2003). The trial court sentenced Rodriguez to ten years in prison, suspended for a term of five years of community supervision. By four issues, Rodriguez complains that the jury charge contained egregious error, his trial counsel was ineffective, and he was denied his right to a jury trial as contemplated by the Sixth Amendment. We affirm. I. Jury Charge By his first issue, Rodriguez contends that the jury charge contained egregious error because it allowed for a conviction that was not unanimous. We disagree. A. Standard of Review An appellate court's "first duty" in analyzing a jury charge issue is "to decide whether error exists." Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). If error is found, the degree of harm necessary for reversal depends on whether the appellant preserved the error by objection. Olivas v. State, 202 S.W.3d 137, 144 (Tex. Crim. App. 2006). If the defendant properly objected to the erroneous jury charge, reversal is required if we find "some harm" to the defendant's rights. Olivas, 202 S.W.3d at 144; Ngo, 175 S.W.3d at 743. However, if the defendant did not object or stated that he had no objection to the jury charge, we may only reverse if the record shows egregious harm. Olivas, 202 S.W.3d at 144; Ngo, 175 S.W.3d at 743-44. B. Applicable Law When the State charges different criminal acts, regardless of whether those acts constitute violations of the same or different statutory provisions, the jury must be instructed that it cannot return a guilty verdict unless it unanimously agrees upon the commission of any one of these criminal acts. Ngo, 175 S.W.3d at 744. "Unanimity in this context means that each and every juror agrees that the defendant committed the same, single, specific criminal act." Id. at 745. "[C]harging a jury disjunctively on separate offenses involving separate incidents does violate the unanimity requirement." Cook v. State, 192 S.W.3d 115, 118 (Tex. App.--Houston [14th Dist.] 2006, no pet.) (citing Martinez v. State, 129 S.W.3d 101, 103 (Tex. Crim. App. 2004)). Unanimity differs from election error. Generally, "where evidence of multiple occurrences of the acts alleged in the indictment are presented at the trial," upon request of the defendant, the State must elect "which of the instances of the charged acts it will rely on for purposes of conviction." Mayo v. State, 17 S.W.3d 291, 298 (Tex. App.-Fort Worth 2000, pet. ref'd) (citing Scoggan v. State, 799 S.W.2d 679, 680 n.3 (Tex. Crim. App. 1990)). However, where the accused does not make a motion to elect, the State is not required to make that election and no error is implicated. Mayo, 17 S.W.3d at 298; see Scoggan, 799 S.W.2d at 680 n.3; O'Neal v. State, 746 S.W.2d 769, 770 n.3 (Tex. Crim. App. 1988). C. Analysis Rodriguez argues that the jury charge is erroneous because it does not allow for a unanimous jury. This argument is based on R. M.'s testimony of three separate and distinct instances of sexual contact: (1) Rodriguez touched R. M.'s penis and testicles before R. M. went into the pool; (2) Rodriguez pulled on R. M.'s penis after he took a shower; and (3) Rodriguez again touched R. M.'s penis and testicles at a vacant house. The State argues that there is no unanimity problem in the jury charge because, in this case, the State charged Rodriguez with only one statutory offense, indecency with a child, and alleged that he committed that offense in only one way--by touching the victim's genitals. The "Charge of The Court" read, in pertinent part, as follows: Our law provides that a person commits an offense if, with a child younger than seventeen (17) years of age and not his spouse, whether the child is of the same or opposite sex, the person engages in sexual contact with the child. By the term "sexual contact," as used herein, is meant any touching by a person, including touching through clothing, any part of the genitals of a child. . . . [I]f you find from the evidence beyond a reasonable doubt that on or about July 31, 2004, in Hidalgo County, Texas, the Defendant Jose Luis Rodriguez, did then and there engage in sexual contact with [R. M.], the victim, a child younger than 17 years and not the spouse of defendant by then and there touching part of the genitals of the victim, [R. M.], with intent to arouse or gratify the sexual desire of the Defendant, then you will find the Defendant guilty of the offense of Indecency With A Child as charged in the indictment. Unless you so find beyond a reasonable doubt, or if you have a reasonable doubt thereof, you will find the Defendant not guilty. Apparently relying on Francis v. State, 36 S.W.3d 121 (Tex. Crim. App. 2000), Rodriguez argues that some jurors could have believed that the alleged acts only occurred at the vacant house, while others may have believed the alleged acts only occurred at the house with the pool. See id. at 125 (reversing where a one-count indictment charged defendant with indecency with a child, but alleged two different offenses--touching of breasts and genitals). Thus, Rodriguez asserts that the jury convicted him, not because a single alleged criminal act was proved beyond a reasonable doubt, but that because all of the alleged criminal acts together convinced the jury that Rodriguez was guilty. In Francis, the charge allowed the jury to find the defendant guilty of indecency with a child if it determined that the defendant had engaged in sexual contact by touching "the breast or genitals of [the] victim." 36 S.W.3d at 122. The court of criminal appeals concluded that submission of two separate offenses in the disjunctive (touching the breast and touching the genitals) was error because it was conceivable that some members of the jury found Rodriguez guilty of touching the child's breast, while others found Rodriguez guilty of touching the child's genitals. Id. at 125. However, in this case, unlike Francis, Rodriguez was not charged with two separate offenses in the disjunctive. Here, the State introduced evidence of three instances of the same act as proof that Rodriguez committed one charged offense--indecency with a child by sexual contact of the genitals. Moreover, because evidence of multiple occurrences of the acts alleged in the indictment was presented to the trial court, Rodriguez was required to request election from the State. See Mayo, 17 S.W.3d at 298; see also Rodriguez v. State, 104 S.W.3d 87, 91 (Tex. Crim. App. 2003) (setting out that evidence of multiple occurrences of acts alleged in the indictment is not evidence of extraneous offenses and Rodriguez's remedy is to require the State to elect on which occurrence it relies for conviction). Without a request from Rodriguez to elect "which of the instances of the charged acts it [would] rely on for purposes of conviction," the State was not required to make that election. See Mayo,17 S.W.3d at 298. Rodriguez, citing Dixon v. State, 201 S.W.3d 731, 739 (Tex. Crim. App. 2006), argues that "the jury charge did not inform the jury on the constitutional necessity of unanimously finding one specific incident proven beyond a reasonable doubt in order to reach a conviction." However, Dixon does not support Rodriguez's contention, because in Dixon the defendant requested an election by the State and here, Rodriguez did not. See id. Therefore, the State, in this case, was not required to elect which instances of the charged acts it was relying on for purposes of conviction. See Mayo, 17 S.W.3d at 298; see also Scoggan, 799 S.W.2d at 680 n.3; O'Neal, 746 S.W.2d at 770 n.3. Furthermore, the charge did instruct the jury that the verdict must be unanimous as to the offense charged in the indictment. See Ngo, 175 S.W.3d at 745. We conclude that the jury charge did not contain error as alleged by Rodriguez, therefore, we need not conduct a harm analysis. See Ngo, 175 S.W.3d at 743. Rodriguez's first issue is overruled. II. Ineffective Assistance of Counsel In his second and third issues, Rodriguez complains that his trial counsel rendered ineffective assistance of counsel by "not ensuring that an extraneous offense instruction was included in the jury charge" and by "not requiring that the State elect which alleged incident it was relying upon for a unanimous conviction." A. Standard of Review We determine whether counsel's representation was so deficient that it violated Rodriguez's Sixth Amendment right to counsel, by applying the Strickland two-pronged test. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005); see Strickland v. Washington, 466 U.S. 668, 687 (1984); Jayners v. State, 216 S.W.3d 839, 851 (Tex. App.--Corpus Christi 2006, no pet.). To prevail in an ineffective assistance of counsel claim, an appellant must prove by a preponderance of the evidence (1) deficient performance and (2) prejudice. Busby v. State, 990 S.W.2d 263, 268 (Tex. Crim. App. 1999) (citing Strickland, 466 U.S. at 687). The first prong of the Strickland test requires that Rodriguez show that counsel's representation fell below an objective standard of reasonableness. Strickland, 466 U.S. at 687; Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). Under the second prong, Rodriguez must show that there is a reasonable probability that, but for, counsel's errors, the result would have been different. Strickland, 466 U.S. at 687, 694; Thompson, 9 S.W.3d at 812; Hernandez v. State, 726 S.W.2d 53, 55 (Tex. Crim. App. 1986). An allegation of ineffective assistance of counsel must be firmly founded in the record affirmatively showing the alleged ineffectiveness. Goodspeed, 187 S.W.3d at 392; Guzman v. State, 923 S.W.2d 792, 797 (Tex. App.-Corpus Christi 1996, no pet.). There is a strong presumption that counsel acted reasonably when the record is silent regarding the motivation of counsel's tactical or strategic decisions. Mallet v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001). A record which does not include counsel's explanation for his conduct is insufficient to overcome the presumption of reasonableness. Goodspeed, 187 S.W.3d at 392. B. Analysis In this case, the record is silent regarding the motivation of counsel's tactical or strategic decisions regarding the challenged conduct. See Mallet, 65 S.W.3d at 63. We find no basis for concluding that counsel's representation fell below an objective standard of reasonableness, because a record which does not include counsel's explanation for his conduct is insufficient to overcome the presumption of reasonableness. Goodspeed, 187 S.W.3d at 392. Therefore, Rodriguez has not satisfied the first prong of the Strickland test, and we need not consider the second prong. See Strickland, 466 U.S. at 687. We overrule Rodriguez's second and third issues. (1) IV. Right to Jury Trial In his fourth issue, Rodriguez contends that he was denied the right to a jury trial as contemplated by the Sixth Amendment to the United States Constitution. U.S. Const. amend. VI. Without developing this constitutional issue further, see Tex. R. App. P. 38.1(h), Rodriguez refers this Court to arguments made in support of his first three issues. We have overruled Rodriguez's first three issues. We, likewise, overrule Rodriguez's fourth issue. See Tex. R. App. P. 47.1. V. Conclusion Accordingly, we affirm. NELDA V. RODRIGUEZ Justice Do not publish. Tex. R. App. P. 47.2(b). Memorandum Opinion delivered and filed this 28th day of February, 2008. 1. Rodriguez is not without a potential remedy, even though his direct appeal is unsuccessful. Rodriguez may raise a claim such as ineffective assistance of counsel, which requires the development of a record to substantiate, in an application for writ of habeas corpus. See Tex. Code Crim. Proc. Ann. art. 11.07 (Vernon 2005); Ex parte Rich, 194 S.W.3d 508, 513 (Tex. Crim. App. 2006); Ex parte Varelas, 45 S.W.3d 627, 630 (Tex. Crim. App. 2001); Cooper v. State, 45 S.W.3d 77, 82 (Tex. Crim. App. 2001); Ex parte Torres, 943 S.W.2d 469, 476 (Tex. Crim. App. 1997). An application for writ of habeas corpus relief would "provide an opportunity to conduct a dedicated hearing to consider the facts, circumstances, and rationale behind counsel's actions at . . . trial." Thompson v. State, 9 S.W.3d 808, 814-15 (Tex. Crim. App. 1999).