Valdez v. State

• Decision Date: 27 July 2006
• Docket Number: No. 11-05-00046-CR.,11-05-00046-CR.
• Parties: Josias Ramirez VALDEZ, Appellant, v. STATE of Texas, Appellee.
• Court: Texas Court of Appeals

211 S.W.3d 395

Josias Ramirez VALDEZ, Appellant, v. STATE of Texas, Appellee.

No. 11-05-00046-CR.

Court of Appeals of Texas, Eastland.

July 27, 2006.

E. Matthew Leeper Jr., Houston, for appellant.

Charles Rosenthal, Jr., District Attorney, Angela Weltin, Constance Chi Spence, Asst. Dist. Atty's, Houston, for appellee.

Panel consists of: WRIGHT, C.J., and McCALL, J., and STRANGE, J.

OPINION

RICK STRANGE, Justice.

Josias Ramirez Valdez was charged with aggravated sexual assault of a child under the age of fourteen years. The jury found Valdez guilty, sentenced him to thirty-five years confinement in the Texas Department of Criminal Justice-Institutional Division, and fined him $10,000. We find no error and affirm.

I. Background Facts

On October 6, 2003, Norma Solis and her mother were in their car in the parking lot of an apartment complex when they heard a little boy screaming and saw him coming toward them. The boy's hands were tied, and he appeared scared. Solis took him to her brother's apartment. He told her that his name was J.V. and that his father had tied him to the stair rail. J.V.'s wrists were tied so tightly that they were turning purple. He had a mixture of old and recent marks and scabs on his back.

Solis called the police. Officer Damon Richardson responded to the call. He saw Valdez entering an apartment as he was exiting his car. Valdez came back to Officer Richardson and said, "What? What?" Officer Richardson disregarded Valdez at the time because he was looking for an injured child. After speaking to J.V., Officer Richardson realized that Valdez might be J.V.'s father. Officer Richardson spoke with Valdez. Valdez told him that his son was lost. Officer Richardson advised him that his son had been located and that his son claimed Valdez had assaulted him. Officer Richardson asked for permission to search Valdez's residence. Valdez consented. Officer Richardson took J.V. with him. J.V. had described a wooden board that he claimed Valdez used to beat him. Valdez denied having such a board. J.V. went directly upstairs and retrieved it from under a bed. J.V. also showed the police where he had been tied.

The police noticed bruising all over J.V.'s body. J.V. showed the officers his bruises but did not complain of any injury to his buttocks or genitalia. He was taken to Texas Children's Hospital where he was treated in the hospital's psychiatric department for seven days. He was then placed in a foster home with Maritza Martinez. J.V. never told Martinez that he had been sexually abused, but she began to suspect abuse because of J.V.'s behavior. She asked for a psychiatric consult and shared her concern with J.V.'s CPS caseworker, Abel Zamora.

J.V. subsequently told Zamora that his dad had abused him. J.V. was taken to the Children's Assessment Center for evaluation and was interviewed by Claudia Mullin. J.V. told her that one afternoon his dad had touched his "pee" and his "pompies" with his hand. These were identified as J.V.'s penis and anus. He said his dad dressed him in a dress and put lipstick on him. He later took his and J.V.'s clothes off, laid J.V. down on the floor on his stomach, and put his hand inside J.V.'s bottom. He then turned J.V. over and played with his genitalia. Dr. Rebecca Girardet examined J.V. on February 19, 2004. She did not find any physical evidence of abuse but indicated that a majority of the children who allege abuse have a normal exam. J.V. did not report any sexual abuse to her.

J.V. testified at trial. He was six years old at the time of the alleged incident and seven at the time of trial. He described being hit with a board, being tied to a stair rail, and then being left alone. J.V. testified that he was able to untie himself using his teeth. He also testified that his dad touched him in some places that he did not like. J.V. described being dressed in girl's clothes and having makeup applied to his face. He told the jury that his dad took him to his bedroom. His dad then undressed himself and J.V. His dad laid on top of him, and he felt something hard in the inside of his bottom. He also testified that his dad touched his genitalia and kissed him on the mouth.

II. Issues

Valdez challenges his conviction with two issues. Valdez argues first that he was denied the right to a unanimous verdict because the jury charge submitted three separate offenses in the disjunctive and second that he was denied effective assistance of counsel because his trial attorney did not object to the charge.

III. Standard of Review

When analyzing a jury-charge issue, we must first decide whether error exists. Middleton v. State, 125 S.W.3d 450, 453 (Tex.Crim.App.2003). If so, we analyze that error for harm. The degree of harm necessary depends upon whether the error was preserved by objection. If the defendant properly objected to the charge, some harm requires reversal. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim.App.1985). If the defendant did not object to the charge, reversal is not required unless the record shows egregious harm to the defendant. Id.

Egregious harm requires more than mere theoretical harm. Errors that result in egregious harm are those that affect the very basis of the case, deprive a defendant of a valuable right, or vitally affect a defensive theory. Ngo v. State, 175 S.W.3d 738, 750 (Tex.Crim.App.2005).

When considering ineffective assistance claims, we apply a two-prong standard. A defendant must first demonstrate that his trial counsel's performance was deficient. This requires showing that counsel made errors so serious that he was not functioning as guaranteed by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires proof that counsel's errors were so serious as to deprive the defendant of a fair trial. Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

IV. Discussion

The State charged Valdez with aggravated sexual assault of a child under the age of fourteen years pursuant to TEX. PEN.CODE ANN. § 22.021 (Vernon Supp. 2005).¹ The indictment alleged in three separate paragraphs that on or about October 1, 2003, Valdez did:

[I]ntentionally and knowingly cause the penetration of the ANUS of [J.V.] here-in-after called the Complainant, a person younger than fourteen years of age and not the spouse of the Defendant, by placing HIS SEXUAL ORGAN in the ANUS of the Complainant.

[I]ntentionally and knowingly cause the anus of [J.V.], a person younger than fourteen years of age and not the spouse of the Defendant, to contact the SEXUAL ORGAN of the DEFENDANT.

[I]ntentionally and knowingly cause the penetration of the ANUS of [J.V.] hereinafter called the Complainant, a person younger than fourteen years of age and not the spouse of the Defendant, by placing HIS FINGER in the ANUS of the Complainant.

During closing argument, the prosecutor said:

We talked about the date, October 1st, 2003. You all know that that specific date is not what is important. Y'all know that it is not a specific date, but it is on or about. You also have the elements of how this happened, the three different ways that the sexual assault was alleged. We talked to you about that. Finger, penetration. Talked to you about sexual organ, contact or touch, and then sexual organ penetration.

Regarding these three things, that is not something that you all have to agree on. First, you jurors can agree that it was finger penetration. Second you can agree that it is the sexual organ touching. One of you may think it was the penetration of the sexual organ. The rest of you may think all three happened. It does not matter as far as y'all agreeing on which one happened. What is important is that you believe that sexual abuse occurred. That's what you must find.

Valdez's trial counsel did not object to this argument but responded:

If they were so certain about their case, would they give you three different ways to convict him? Pick your one of the three? Or would they give you one solid one and say, go back there because this is what we've got and we've proven it to you.

The court then instructed the jury:

Now, if you find from the evidence beyond a reasonable doubt that on or about the 1st day of October, 2003, in Harris County, Texas, the defendant, Josias Ramirez Valdez, did then and there unlawfully, intentionally or knowingly cause the penetration of the anus of [J.V.] a person younger than fourteen years of age and not the spouse of the defendant, by placing his sexual organ in the anus of [J.V.]; or

If you find from the evidence beyond a reasonable doubt that on or about the 1st day of October, 2003, in Harris County, Texas, the defendant, Josias Ramirez Valdez, did then and there unlawfully, intentionally or knowingly cause the anus of [J.V.], a person younger than fourteen years of age and not the spouse of the defendant, to contact the sexual organ of the defendant; or

If you find from the evidence beyond a reasonable doubt that on or about the 1st day of October, 2003, in Harris County, Texas, the defendant, Josias Ramirez Valdez, did then and there unlawfully, intentionally or knowingly cause the penetration of the anus of [J.V.], a person younger than fourteen years of age and not the spouse of the defendant, by placing his finger in the anus of [J.V.], then you will find the defendant guilty as charged in the indictment.

Valdez argues that he was denied his right to a unanimous verdict as guaranteed by TEX. CONST. art. V, § 13 and TEX.CODE CRIM. PROC. ANN. art. 36.29(a) (Vernon Supp.2005) because it is impossible to determine from the jury's general verdict upon which paragraph he was convicted. The State answers that appellant was not charged with separate offenses but alternative means of committing one offense.

The State can allege alternative legal theories for one offense in one indictment. Hathorn v. State, 848 S.W.2d 101, 113 (Tex.Crim.App.199...