Vega v. State

• Decision Date: 12 August 2020
• Docket Number: No. 04-19-00468-CR,04-19-00468-CR
• Citation: 610 S.W.3d 79
• Parties: John Anthony VEGA, Appellant v. The STATE of Texas, Appellee
• Court: Texas Court of Appeals

610 S.W.3d 79

John Anthony VEGA, Appellant

v.The STATE of Texas, Appellee

No. 04-19-00468-CR

Court of Appeals of Texas, San Antonio.

Delivered and Filed: August 12, 2020

Patrick Ballantyne Jr., LaHood Norton Law Group, 40 NE Loop 410, Ste. 525, San Antonio, TX 78216, for Appellant.

Jay Brandon, Assistant District Attorney, Paul Elizondo Tower, 101 W. Nueva, 3rd Floor, San Antonio, TX 78205, for Appellee.

Sitting: Sandee Bryan Marion, Chief Justice, Patricia O. Alvarez, Justice, Liza A. Rodriguez, Justice

Opinion by: Patricia O. Alvarez, Justice

John Anthony Vega appeals the trial court's judgment sentencing him to fifteen years' imprisonment. Vega presents one issue asserting his trial counsel rendered ineffective assistance of counsel.

BACKGROUND

Vega was charged by indictment with two second-degree felony counts of indecency with a child under the age of 14 in violation of Penal Code § 21.11(a)(1). Count I accused Vega of touching the genitals of Y.M., his stepdaughter; Count II accused him of touching her breasts. The charges stemmed from a night when Vega's wife, son, and stepdaughter slept in the same bed with Vega. Y.M., who was twelve at the time, woke up to find Vega with his hand under her clothing, touching her breasts and her vagina. The following day, Y.M. made an outcry to her mother. Y.M.'s mother then told her own sister, Y.M.'s aunt, about the incident, asking her not to tell anyone. Y.M.'s aunt advised Y.M.'s mother to call the police, but when she would not, Y.M.'s aunt called Child Protective Services (CPS). Following this report, Y.M. recounted the incident to a CPS Investigator, two CPS caseworkers, her therapist, and her licensed counselor. Y.M. also told her aunt what happened.

At trial, Y.M. was called by the State to testify about the incident. After Y.M. testified, the State called the CPS Investigator and two CPS caseworkers to testify regarding their conversations with Y.M. Vega's trial counsel did not object to the testimony. Y.M.'s mother also testified. She described Y.M.'s outcry, as well as a statement by Y.M. that Vega did not intentionally touch her, and she related Vega's habit of reaching out and touching his wife while he was asleep. She also testified that her daughter was a sleepwalker and did not remember her actions while sleepwalking. After the mother testified, the State elicited testimony from Y.M.'s therapist and counselor on what Y.M. told each about the incident. Again, Vega's trial counsel did not object. A jury found Vega guilty on both counts and sentenced him to 15 years in prison.

Vega appeals the jury's conviction on the sole ground that his trial counsel provided him ineffective assistance of counsel.

INEFFECTIVE ASSISTANCE OF COUNSEL

A. Arguments

Vega argues that his trial counsel's performance fell below an objective standard of reasonableness and violated his rights under the Sixth and Fourteenth Amendments to the United States Constitution and Article 1, Section 10 of the Texas Constitution. Specifically, Vega contends his trial counsel failed to object to hearsay evidence from several outcry witnesses in violation of article 38.072 of the Texas Code of Criminal Procedure, assumed representation beyond his competence, was ignorant of the laws of evidence and criminal procedure, and failed to represent Vega's interests to achieve a just result in an adversarial system. Vega concludes that, were it not for his trial counsel's deficient performance, there is a substantial likelihood that the trial's outcome would have been different.

The State responds that trial counsel's failure to object to the testimony of five outcry witnesses amounted to trial strategy and that any deficient performance did not prejudice Vega.

B. Standard of Review and Applicable Law

Both the United States and the Texas Constitutions guarantee individuals the right to effective criminal representation. U.S. CONST. amend. VI ; TEX. CONST. art. 1 § 10.

"To prevail on a claim of ineffective assistance of counsel, a defendant must demonstrate two things: deficient performance and prejudice." Miller v. State , 548 S.W.3d 497, 499 (Tex. Crim. App. 2018) (citing Strickland v. Washington , 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)).; see also Lopez v. State , 343 S.W.3d 137, 143 (Tex. Crim. App. 2011). An appellant "bears the burden of proving by a preponderance of the evidence that counsel was ineffective." Thompson v. State , 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).

1. Deficient Performance

To establish deficient performance, an appellant must show counsel's assistance "fell below an objective standard of reasonableness." Id. at 812. An appellant must overcome the "strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance." Id. at 813. "[T]hat is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Ex Parte Martinez , 330 S.W.3d 891, 900 (Tex. Crim. App. 2011). "To defeat the presumption of reasonable professional assistance, ‘any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness.’ " Thompson , 9 S.W.3d at 814 (quoting McFarland v. State , 928 S.W.2d 482, 500 (Tex. Crim. App. 1996), overruled on other grounds by Mosley v. State , 983 S.W.2d 249, 263 (Tex. Crim. App. 1998) ). If no reasonable trial strategy can justify counsel's choices or conduct, performance necessarily falls below an objective standard of reasonableness. Andrews v. State , 159 S.W.3d 98, 102 (Tex. Crim. App. 2005). However, few cases demonstrate such deficiency on direct appeal because the record is unlikely to include any explanation by trial counsel, and "we can [frequently] conceive potential reasonable trial strategies that counsel could have been pursuing." Id. at 103 ; see also Prine v. State , 537 S.W.3d 113, 117 (Tex. Crim. App. 2017).

2. Prejudice

Once an appellant establishes deficient performance, the appellant must then establish prejudice. See Lopez , 343 S.W.3d at 142. An appellant "must show a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Thompson v. State , 9 S.W.3d at 812. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. (citing Hernandez v. State , 726 S.W.2d 53, 55 (Tex. Crim. App. 1986) ).

C. Analysis

1. Failure to Object to the Testimony of Five Outcry Witnesses

In cases involving sexual conduct against a child younger than 14 years of age, an out-of-court statement made by the victim to the first adult they outcry to may be admissible hearsay so long as the requirements of article 38.072 are met. TEX. CODE CRIM. PROC. art. 38.072 ; Lopez , 343 S.W.3d at 140 ; Prestiano v. State , 581 S.W.3d 935 (Tex. App.—Houston [1st Dist.] 2019, pet. ref'd). Here, Vega claims his trial counsel failed to object to the hearsay testimony of five witnesses regarding the victim's outcry statements.

The Court of Criminal Appeals and the Houston First Court of Appeals addressed similar ineffective-assistance claims on similar silent records. See Lopez , 343 S.W.3d at 140 ; Prestiano , 581 S.W.3d 935. In Lopez , three witnesses testified at trial as to what a child told them about the same event involving an aggravated sexual assault. Lopez , 343 S.W.3d at 140. Under article 38.072, the testimony of two of the witnesses was improper, constituting inadmissible hearsay that merely bolstered the child's own testimony. Id. (citing TEX. CODE CRIM. PROC. art. 38.072 ). On appeal, Lopez argued that this attorney failed to invoke article 38.072 to limit the hearsay admitted against him. Id. The State responded with several possible theories, including the tactical decision to allow hearsay to impeach the child's outcry. Id. at 141. The Court of Criminal Appeals held that, given that the record was silent as to trial counsel's reasons for allowing the hearsay testimony without objection, Lopez failed to show his trial counsel's performance was deficient. Id. at 143-44.

In Prestiano , defense counsel did not object to a therapist's hearsay testimony about a minor victim's statements concerning sexual abuse and to corresponding exhibits. Prestiano , 581 S.W.3d at 948. Relying on Lopez , the Houston First Court of Appeals concluded that it was conceivable that counsel made a strategic decision to refrain from objecting in order to "reveal any inconsistencies in the child's account of the sexual abuse." Id. at 948. "On this record, we must assume that Prestiano's lawyer's inaction resulted from a tactical choice to incur the risk posed by the hearsay in exchange for the opportunity to expose inconsistencies in the child's testimony and to challenge her credibility." Id.

In this case, Vega moved for a new trial after he was convicted, but he did not raise ineffective assistance of counsel. As in Lopez and Prestiano , Vega's trial counsel did not have the opportunity to explain why he did not object to the testimony of outcry witnesses or request a reliability hearing under article 38.072(b)(2) when the State called the mother to testify regarding the outcry. The State raises the theory that defense counsel's strategy was to impeach Y.M.'s testimony. We agree with the State that its theory is supported by defense counsel's final argument where he argued that Y.M.'s story was less than credible because it changed each time she recounted the incident to the various outcry witnesses. Support for the State's theory is also found in trial counsel's affidavit attached to Vega's motion for new trial where trial counsel testified that Y.M. "had several conflicting accounts of what allegedly happened." Furthermore, although Vega submitted a motion for new trial with an affidavit from trial counsel, neither the motion nor the affidavit discuss trial counsel's strategy.

On the record before u...