Alvarez v. State

1

VALENTIN TORRES ALVAREZ A/K/A VALENTIN TORRES A/K/A VALENTIN ALVAREZ TORRES, Appellant, v. THE STATE OF TEXAS, Appellee.

No. 13-22-00013-CR

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

August 25, 2022

Do not publish. TEX. R. APP. P. 47.2 (b).

On appeal from the 103rd District Court of Cameron County Texas.

Before Justices Benavides, Hinojosa, and Silva

MEMORANDUM OPINION

CLARISSA SILVA, JUSTICE

Appellant Valentin Torres Alvarez a/k/a Valentin Torres a/k/a Valentin Alvarez Torres appeals his convictions for continuous sexual abuse of a child, a first-degree felony, and prohibited sexual conduct, a third-degree felony. See Tex Penal Code Ann. §§ 21.02, 25.02(c).

By two issues, appellant asserts he was denied effective assistance of counsel, and the jury charge allowed for a non-unanimous verdict. We affirm.

I. Background

On November 15, 2017, appellant was indicted on one count of continuous sexual abuse of a child, occurring on or about July 1, 2009, through November 1, 2010, and two counts of prohibited sexual conduct, occurring on or about November 1, 2016, and November 3, 2016, respectively.

At trial, the complainant, appellant's stepdaughter Valerie,^[1] testified that appellant began dating her mother, Sonia, when Valerie was around seven years old. When Valerie turned twelve, appellant reportedly began "look[ing] at [her] different[ly]." Valerie testified that one afternoon after school, while her little sister was in another room and her mother was at work, appellant came into her bedroom and instructed her to take off her clothes. Valerie testified that appellant penetrated her vaginally, and appellant stopped when they were "interrupted" by the sound of someone knocking outside her bedroom window. Appellant retreated to the hallway bathroom, and Valerie opened the front door, where she was greeted by her godmother, Rosa Elia De Los Santos. When De Los Santos pressed as to why Valerie had taken so long to answer the door and why she was answering the door while "zipping up [her] pants," Valerie lied.^[2] Valerie testified that the sexual abuse spanned several years, often occurring in the summertime when appellant stayed home with Valerie and her sister, and continued until November 2016, a few weeks shy of Valerie's nineteenth birthday. In early July 2017, Sonia took Valerie to a doctor in Mexico after Sonia became concerned with Valerie's excessive weight gain. Valerie testified that appellant had also commented on her weight, telling her that "he didn't like the stomach that he was seeing." At the doctor's appointment, Sonia learned that Valerie was eight months pregnant. Valerie gave birth several weeks later, and DNA testing results admitted at trial indicated appellant was the father.^[3]

Throughout Valerie's testimony, appellant's trial counsel raised several objections. On cross-examination, counsel questioned Valerie about her past romantic partners. Valerie testified that she had only ever dated one boy, he was the same age as her, they were together for two and a half years in high school, and they were never sexually active.^[4] Valerie was further asked to recall the location of each testified-to incident of sexual abuse and to the whereabouts of other household members during each incident.

Sonia testified that she contacted law enforcement the same day she found out Valerie was pregnant and learned about the sexual abuse. Sonia then called appellant, who had been out of town, to tell him that she would not allow him back in the home. At trial, Sonia recalled the incident in 2012, as it had been relayed to her at the time by De Los Santos. The disclosure had prompted Sonia to request an explanation from appellant, who denied anything inappropriate had transpired. Throughout Sonia's testimony, appellant's trial counsel repeatedly objected to narrative, hearsay, and on "improper bolstering" grounds.

Forensic nurse examiner Elizabeth Blancher testified that she examined Valerie in July 2017 following the initiation of the police investigation. Blancher described Valerie as a "good historian" who was calm and cooperative but appeared "naïve . . . for her age." Blancher noted that Valerie's last reported incident of sexual abuse was consistent with the gestational age of the baby at the time of the examination. Blancher's written report indicated she observed Valerie had "two well-healed tears to the hymen" but noted that there would be "no way to know exactly how old" Valerie's injuries were.

Rosalinda Hernandez, an investigator with the Cameron County Sherriff's Office, testified that she separately interviewed Valerie, Sonia, and Valerie's then-boyfriend. Investigator Hernandez described both Valerie and her then-boyfriend as "very naïve" and felt as if she had been "talking to a child." Investigator Hernandez testified that she also contacted appellant, and although he initially agreed to provide an in-person statement, he failed to appear and changed his number shortly thereafter. Investigator Hernandez obtained appellant's new number and attempted to make contact again but was unsuccessful.

Appellant testified at trial. He denied having any sexual relationship with Valerie and suggested that Sonia impregnated Valerie using semen obtained from his underwear. Appellant's trial counsel also recalled Valerie to question her about inconsistencies in her prior testimony, wherein she had testified there had been no incidents of oral penetration, with Valerie's statement to law enforcement indicating otherwise.

The jury returned with a guilty verdict on all three counts, and the trial court assessed appellant's punishment at fifty years' imprisonment for count one and ten years' imprisonment for counts two and three.

On December 8, 2021, the Texas Court of Criminal Appeals granted appellant's request for an out-of-time appeal. Ex parte Alvarez, No. WR-93,274-01, 2021 WL 5823029, at *1 (Tex. Crim. App. Dec. 8, 2021). This appeal followed.

II. Ineffective Assistance of Counsel

In issue one, appellant claims that his counsel was (1) "physically unfit to defend a felony case," and her "physical incapacities" resulted in her failure to (2) investigate and prepare, (3) request a Daubert hearing, (4) present character witnesses, (5) object to the State's list of extraneous offenses, (6) retain an expert for the defense, (7) make an opening statement, and (8) object to hearsay and summary testimony.

A. Standard of Review and Applicable Law

To reverse a conviction based on ineffective assistance of counsel, we must find: (1) counsel's representation fell below an objective standard of reasonableness, and (2) the defendant was prejudiced. Andrus v. Texas, 140 S.Ct. 1875, 1881 (2020) (citing Strickland v. Washington, 466 U.S. 668, 687-88 (1984)); Swinney v. State, No. PD-0216-21, 2022 WL 610977, at *1 (Tex. Crim. App. Mar. 2, 2022).

"Prejudice may be measured in one of two ways: a reasonable probability of a different outcome or a reasonable probability of a different decision by the defendant." Swinney, 2022 WL 610977, at *1. "The likelihood of a different result must be substantial, not just conceivable." Harrington v. Richter, 562 U.S. 86, 112 (2011).

Any claim for ineffectiveness of counsel "must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness." Prine v. State, 537 S.W.3d 113, 117 (Tex. Crim. App. 2017) (citations omitted). "[I]f the record does not contain affirmative evidence of trial counsel's reasoning or strategy, we presume counsel's performance was not deficient." Johnson v. State, 624 S.W.3d 579, 586 (Tex. Crim. App. 2021). A defendant's inability to make a showing under either Strickland prong defeats a claim for ineffective assistance. Id. at 587.

B. Analysis

We note at the outset that appellant did not file a motion for new trial raising the issue of ineffective assistance of counsel based on the claims made here; therefore, we have no record detailing counsel's reasoning behind her actions or inactions. See id. at 586.

1. "Physically [U]nfit"

To prevail on a claim of ineffectiveness based on a trial counsel's illness or injury, appellant would need to show that the trial counsel's illness or injury was a factor in trial counsel's deficient representation. See Prine, 537 S.W.3d at 117; Burnett v. State, 784 S.W.2d 510, 515 (Tex. App.-Dallas 1990, pet. ref'd).

Counsel was appointed to represent appellant on December 15, 2017. The first mention of any physical limitation of counsel or illness in the record occurred on June 4, 2018, on the morning of trial. During voir dire,^[5] appellant's trial counsel informed the venire panel that she was recovering "from having [her] foot and ankle totally rebuilt," and she was, therefore, unable to stand for prolonged periods of time. Counsel then proceeded to engage with venire members, calling on them individually by name, as she spoke of the presumption of innocence, her client's right not to testify, and possible motivations behind false outcries of abuse. Counsel's questioning ultimately prompted several disclosures of bias against the appellant. Trial proceedings continued without incident.

On the morning of the second day of trial and outside the presence of the jury, the trial court granted trial counsel's request to recess at 3:45 p.m. because counsel had a doctor's appointment scheduled. Counsel additionally notified the trial court that she had fallen the night before and had a "giant knot on [her] head." The court replied, "Well, the good thing is, your bangs are covering it." Trial resumed, and throughout the day appellant's trial counsel cross-examined each State witness-as observed supra. After the State rested, appellant...