Deleon v. The State Of Tex.

• Decision Date: 31 August 2010
• Docket Number: No. 14-09-00319-CR.,14-09-00319-CR.
• Citation: 322 S.W.3d 375
• Parties: Jose Armando DeLEON, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

322 S.W.3d 375

Jose Armando DeLEON, Appellant,

v.The STATE of Texas, Appellee.

No. 14-09-00319-CR.

Court of Appeals of Texas,Houston (14th Dist.).

Aug. 31, 2010.

COPYRIGHT MATERIAL OMITTED.

COPYRIGHT MATERIAL OMITTED.

Ralph R. Martinez, Houston, for Appellant.

Bill R. Turner, Bryan, John Brick, Huntsville, for Appellee.

Panel consists of Chief Justice HEDGES and Justices ANDERSON and CHRISTOPHER.

OPINION

ADELE HEDGES, Chief Justice.

Appellant, Jose Armando DeLeon, appeals from his conviction for indecency with a child by sexual contact. A jury found appellant guilty and assessed punishment at fourteen years in prison. In two issues on appeal, appellant contends that he received ineffective assistance of counsel in the guilt/innocence and punishment phases of the trial. We affirm appellant's conviction; however, finding that appellant received ineffective assistance of counsel in the punishment phase, we remand for a new punishment proceeding.

I. Background

Complainant, a female less than seventeen years old, made an outcry statement to her mother in January 2007 that appellant, the uncle of her mother by marriage, had inappropriately touched her on several occasions. At trial, complainant testified that the first incident with appellant occurred in October 2004 when the family was living in Tyler, Texas, and she was in the fourth grade. Her brother had just been born, and her mother was in the hospital. Appellant, his wife, and youngest daughter travelled from their home in Bryan, Texas to see the baby. Complainant testified that appellant rubbed her “upper leg” with his hand while she was sitting on the couch watching television in the living room. The only other people in the apartment at the time were her younger sister and appellant's daughter, both of whom were in different rooms. She recalled that she did not move or say anything because she was frightened. When he stopped, he got up from the couch, and nothing else happened on this occasion.

The next incident occurred during the fall of her fifth grade year, after her family had moved back to Bryan in 2005. She was at appellant's house after school, sitting on a couch in the living room watching television. Appellant sat next to her and touched her above her clothing on her “bottom front area” or “private part” and then told her not to tell. Subsequently, appellant continued to touch her private part “every chance that he got,” on a couch in the living room, while her sister and his daughter were in his daughter's room. Complainant further explained that anyone in appellant's daughter's bedroom could not see her and appellant on the couch. The incidents continued in appellant's house on the couch through the fifth grade and into the sixth grade in 2006. Complainant stated that appellant became “worse” during the summer of 2006, and he would unzip her shorts and “stick his hands in” her shorts, although not beneath her underwear. She also testified that he repeated a threat: “One day I'll get you good.” The last touching occurred the week of her twelfth birthday in December 2006. Soon thereafter, in January 2007, complainant told her mother about appellant's touching her.

Complainant said that she didn't understand why appellant was touching her, and it made her angry. She further stated that during this time period she argued with her mother more than she had previously. On cross-examination, complainant acknowledged that she did not tell anyone except the prosecutor that appellant had touched her inside her clothing and made threats to her.

Complainant's mother recounted the family's move in 2002 from Bryan to Tyler and return to Bryan in 2005. After their return, both she and her husband were at work when school ended for her daughters, so they arranged for extended family to pick them up from school and either drop them off at the Boys and Girls Club or appellant's house. She started to notice problems in complainant's behavior in 2005, during the fall of her fifth grade year. Complainant became angry and disobedient at home and in public. Around December 2005, complainant's behavior was so rebellious that she was suspended from the Boys and Girls Club. The mother further testified that when she was complainant's age, she had acted similarly as a result of having been molested. Based on her own experience, she came to suspect that complainant may have also been molested. She therefore began to question complainant about possible molestation. Over the next year, complainant's mother made this inquiry about “half a dozen” times. By December of 2006, complainant was having so much difficulty with her family that she was kept at home through the holidays instead of being babysat outside of the home.

Detective Loup of the Bryan Police Department, the primary investigator in Bryan for sex crimes and lead detective assigned to this investigation, testified regarding his five years experience working on sex crimes as well as his specialized training and education. He described this case as a delayed outcry, which he said was common for child victims. Further, he noted that there was no need to look for physical evidence since this was an indecent contact case, and nothing suggested otherwise. The first step in the investigation was to have the complainant interviewed by a forensic interviewer at Scotty's House, a child advocacy center. After observing that interview, Loup interviewed several other people, including appellant via interpreter, one of appellant's daughters, and complainant's parents. In his interview, appellant denied the accusations against him. Loup stated that based on his investigation, the last offense occurred at appellant's home and was committed by appellant.

Cheryl Mikeska, a licensed professional counselor, testified that she has fifteen years experience working with children. She has counseled over a hundred children who had been sexually abused. Her education includes a bachelor's degree in psychology and a master's degree in counselor education. She described the symptoms and behavioral characteristics of sexual abuse victims. She further described the symptoms and behavior complainant had exhibited. Although she acknowledged that complainant's behavior could have been caused by something other than sexual abuse, she opined that there were clear indicators of her having been sexually abused.

The defense called appellant's youngest daughter as a witness. She is a second cousin to complainant and was seventeen years old at the time of trial. She recounted the trip to Tyler to visit complainant's family when the baby was born. She only recalled being in complainant's parent's bedroom when the baby was in the apartment and did not notice any unusual behavior from complainant. Appellant's daughter also testified to her long history of babysitting complainant and siblings. She disputed complainant's description of her home and described her bedroom as being only “two steps” from the living room, close enough that she could see people sitting on the couch from her bedroom door. She testified that she was always around complainant when she was at her house and that complainant was never alone with appellant. She asserted that complainant had accused appellant because she wanted attention from her parents. She explained that complainant was treated worse than her other siblings because she had a different father. Finally, she claimed that complainant would lie to her parents and her on occasion about “any other little thing.”

At the punishment phase of the trial, defense counsel opened with a plea to the jury to recommend probation for appellant. In his opening statement, he also mentioned that appellant was a legal resident of the United States, coming originally from Mexico. The defense then called Charlie Russ, a Brazos County probation officer. He described the treatment for sex offenders on probation and the protections in place for the community against the potential danger posed by sex offenders on probation. Also, he testified as to the greater availability of treatment to those on probation versus those jailed or on parole. On cross-examination, the prosecutor elicited considerable testimony from Russ regarding his opinions on the psychology of sex offenders, including his conclusion that: “If you want to protect the public, then you put them in a situation where they can't have access to children.”

The jury convicted appellant of indecency with a child by sexual contact and assessed punishment at fourteen years' confinement.

II. Standards of Review

In his first issue, appellant contends that he was denied effective assistance of counsel during the guilt/innocence phase of trial. In his second issue, appellant contends that he was denied effective assistance during the punishment phase. The Sixth Amendment to the United States Constitution guarantees the right to reasonably effective assistance of counsel in criminal prosecutions. U.S. Const. amend. VI; McMann v. Richardson, 397 U.S. 759, 771 n. 14, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970). In reviewing an ineffective assistance claim, an appellate court “must indulge a strong presumption that counsel's conduct [fell] within the wide range of reasonable professional assistance; that is, [appellant] must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under the two-pronged Strickland test, in order to demonstrate ineffective assistance of counsel, a defendant must first show that counsel's performance was deficient, i.e., that his assistance fell below an objective standard of reasonableness; second, a defendant must affirmatively prove prejudice by showing a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Thompson v. State, 9...