Macias v. State

• Decision Date: 07 November 2017
• Docket Number: NO. 01-16-00664-CR,01-16-00664-CR
• Parties: Johnny Melchor MACIAS, Appellant v. The STATE of Texas, Appellee
• Court: Texas Court of Appeals

539 S.W.3d 410

Johnny Melchor MACIAS, Appellant

v.The STATE of Texas, Appellee

NO. 01-16-00664-CR

Court of Appeals of Texas, Houston (1st Dist.).

Opinion issued November 7, 2017

Discretionary Review Refused February 28, 2018

Jani Maselli Wood, Assistant Public Defender, Houston, TX, for Appellant.

Kim Ogg, District Attorney, Travis Dunlap, Assistant District Attorney, Houston, TX, for The State.

Panel consists of Chief Justice Radack and Justices Keyes and Higley.

Evelyn V. Keyes, Justice

A jury convicted appellant, Johnny Melchor Macias, of the third-degree felony offense of indecency with a child and, after appellant pleaded true to the allegations in two enhancement paragraphs, assessed his punishment at thirty-five years' confinement.¹ In three issues, appellant contends that (1) his trial counsel rendered constitutionally ineffective assistance of counsel when he failed to object to the forensic interviewer's testimony concerning the credibility of the child complainant; (2) the record does not demonstrate that the visiting judge who presided over the trial took the constitutionally-required oath of office; and (3) the $80 in court costs assessed against him for "summoning witness/mileage" is unconstitutional as applied to him because it violated the confrontation clause and the right to compulsory process.

We affirm.

Background

Appellant and L.P. dated for over thirteen years, and they had four children together, including the complainant, D.M., who was fourteen years old at the time of trial. By the summer of 2014, appellant and L.P. had ended their relationship, but their children still saw appellant. On June 16, 2014, when D.M. was twelve years old, L.P. left her children alone with her cousin, and when she returned to the house she found D.M. in tears. D.M. told L.P. that her cousin had said inappropriate things to her and had made her feel uncomfortable, but D.M. kept crying and eventually told L.P. that "two other people ... were inappropriate with her." D.M. told L.P. that her eighteen-year-old cousin was exposing himself to her and that her father, appellant, "was exposing himself to her and was trying to get her to touch him." L.P. testified that she had never heard anything about appellant's touching D.M. inappropriately other than his attempting to force her to touch him. L.P. immediately called the police. In September 2014, L.P. took D.M. to the Children's Assessment Center for a forensic interview and a medical exam.

Initially, the State charged appellant solely with the offense of indecency with a child by exposure. D.M. met with the prosecutor in June 2016, and, as a result of this meeting, the State also charged appellant with the offense of indecency with a child by contact.

Appellant's trial was presided over by the Honorable Reagan Clark, a retired district judge who had taken senior status and was sitting by assignment. The record does not reflect that appellant ever objected to Judge Clark's presiding over his trial, and he never raised any complaint in the trial court concerning Judge Clark's qualifications.

D.M. testified at trial that, in June 2014, she told L.P. that appellant was touching her and exposing himself to her. D.M. could not remember the exact age that she was when appellant began acting inappropriately with her, but she estimated that she was around seven years old. D.M. testified that she would be in the living room watching television with her brothers and sister, and appellant would call her into his bedroom, close the door, and expose himself to her. She stated that appellant would grab her hand and try to make her touch his penis. D.M. also testified that appellant would reach underneath her shirt and touch her breasts and he would touch her vagina, both over and underneath her clothes. D.M. testified that this behavior occurred for years and did not stop until appellant had begun dating his current girlfriend.

Erika Gomez conducted D.M.'s forensic interview at the Children's Assessment Center. Gomez testified that D.M. spoke with her about an incident involving her father. Gomez and the State then had the following exchange:

[The State]: Again, without going into detail as to what [D.M.] told you, at some point you end the interview; is that correct?

[Gomez]: Yes.

[The State]: Now, during your interview with her, did you find her to be credible in what she was telling you?

[Gomez]: Yes.

[The State]: When your interview was over, did you find her to be consistent with what she told you in the interview room, with what she had told police officers and what you had learned during your staffing process?

[Gomez]: I cannot recall the staffing. So, I don't know, per se, what the law enforcement said. So, I can't recall.

[The State]: That's fair. But you found her to be credible when you were done; and after you spoke with police officers, you had no reason to disbelieve she was a credible little girl?

[Gomez]: Yes.

Defense counsel did not object to this testimony.

On cross-examination, Gomez testified that D.M. did not report that appellant had touched her inappropriately. Gomez also testified that "[i]t's not [her] job to say whether a child is lying or telling the truth" and that she has had occasions where she believed a child was lying to her during an interview and occasions where she could not tell if a child was lying. When asked how she can tell whether a child is being truthful, Gomez responded: "Consistency. The details, the sensories. A lot of it goes into the sensory details. And if more than one time the child is able to detail more than one time and it is different, you know, something different was said or something different was done." Defense counsel asked Gomez how she could determine if consistency existed when she does not view police reports before conducting forensic interviews, and Gomez stated, "Because the child narrates to me everything that has happened to him or her and they're able to take me through different times."

Dr. Marcella Donaruma, the attending physician at the Children's Assessment Center, met with D.M. Dr. Donaruma testified that D.M. disclosed to her that appellant had exposed himself to her and tried to make her touch his penis. Dr. Donaruma asked D.M. if appellant had ever touched her inappropriately, and D.M. responded, "No." Dr. Donaruma did not conduct a physical exam of D.M.

Appellant testified on his own behalf. He testified that he did not have a good relationship with L.P. after they separated, and L.P. usually spoke with his girlfriend, instead of him, over matters concerning their children. Appellant testified that he first learned about D.M.'s allegations against him in 2015 when Child Protective Services called him for an interview. He stated that he cooperated with their investigation and with the police investigation. He testified that D.M.'s allegations were not truthful, and he denied exposing himself to D.M., trying to make D.M. touch him, or touching her.

Ultimately, the jury found appellant guilty of indecency with a child by exposure, but it was unable to reach a verdict on the charge of indecency with a child by contact, and the trial court declared a mistrial as to that charge. After appellant pleaded true to the allegations in two enhancement paragraphs, the jury assessed his punishment at thirty-five years' confinement.

After the trial court signed the judgment of conviction, a total of $759 in court costs was assessed against appellant, which included $80 for "summoning witness/mileage." Appellant did not file a motion for new trial or other post-judgment motion. This appeal followed.

Ineffective Assistance of Counsel

In his first issue, appellant contends that his trial counsel rendered ineffective assistance during the guilt-innocence phase of trial when Gomez, the forensic interviewer, twice testified that she found D.M. to be credible, but trial counsel did not object. Appellant further contends that this testimony constitutes fundamental error.

A. Standard of Review

To establish that trial counsel rendered ineffective assistance, an appellant must demonstrate, by a preponderance of the evidence, that (1) his counsel's performance was deficient and (2) there is a reasonable probability that the result of the proceeding would have been different but for his counsel's deficient performance. See Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984) ; Perez v. State , 310 S.W.3d 890, 892–93 (Tex. Crim. App. 2010) ; Cannon v. State , 252 S.W.3d 342, 348–49 (Tex. Crim. App. 2008). The appellant's failure to make either of the required showings of deficient performance or sufficient prejudice defeats the claim of ineffective assistance. Rylander v. State , 101 S.W.3d 107, 110 (Tex. Crim. App. 2003) ; see also Williams v. State , 301 S.W.3d 675, 687 (Tex. Crim. App. 2009) ("An appellant's failure to satisfy one prong of the Strickland test negates a court's need to consider the other prong."). "If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice ... that course should be followed." Cox v. State , 389 S.W.3d 817, 819 (Tex. Crim. App. 2012) (quoting Strickland , 466 U.S. at 697, 104 S.Ct. at 2069 ).

The appellant must first show that his counsel's performance fell below an objective standard of reasonableness based on prevailing professional norms. Robertson v. State , 187 S.W.3d 475, 483 (Tex. Crim. App. 2006) ; Thompson v. State , 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). The second prong of Strickland requires the appellant to demonstrate prejudice—"a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland , 466 U.S. at 694, 104 S.Ct. at 2068 ; Thompson , 9 S.W.3d at 812. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Strickland , 466 U.S. at 694, 104 S.Ct. at 2068.

We indulge a strong presumption that counsel's conduct...