NO. 07-03-0227-CR IN THE COUR

T OF APPEALS FOR THE SEVEN TH DISTRICT OF TEXAS

AT AMARILLO PANEL B OCTOBER 19, 2004

______________________________ CEDRIT BENARD JOHNSON, APPELLANT

V. THE STATE OF TEXAS, A PPELLEE

_________________________________ FROM THE 2 58TH DI STRICT COURT OF PO LK COUNT Y; NO. 16,870; HON ORABLE STAN PEM BERTON, JUD GE

_______________________________ Before JOHNSON, C.J., and QUINN and CAMPBE LL, JJ.
MEMORA NDUM OPIN ION Appellant

Cedrit Benard Johnson appeals h is convi ction for the felony offenses of indecency with a c hild and agg ravated sex ual a ssault and punis hment, assessed by the trial court , at 25 year

s confi nement fo r each offense. We will a ffirm. Appellant was ch arged by an indictment con taining tw o counts alleg ing that on November

24, 2001 he committed the offense of aggravated sexual assault by digital-2-

penetration of the sexual or gan of a child y

ounger than 14 y

ears of age, and committed the offense of inde cency with a ch ild by touc hing t he genital s of the same child . The indictment

also contained an enha nc ement paragraph alleging a prior felony convicti on. Appellant, repre sent ed by a ppo inte d cou nsel , wa s foun d gu ilty by a jury o ver his plea of not gu ilty. Appellant’s appointed counsel on a ppeal has filed a mot ion to withdraw and bri e f stating his belief that the appe al presents no meritorious i ssues and i s frivolous

. See Andersv. California , 386 U.S. 738, 744-45, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Th is brief consists of a short recitation of the procedural history of the case, quotations fro m the te stimony

of t he main wit nesses, and ci tation to the appl icable prov isions of the Penal Code. The brief doe s not discuss any potential complaints on appeal or why they would not show reversible error.
In conformity w ith the stan dard s set out b y the U nite d Sta tes S upre me Co urt, we will notrule o n the moti on to withd raw un til we h ave independentl y examine d the record. Nicholsv. State , 954 S.W.2d 83, 86 (Tex.App.-- San Antonio 1997, no p et. ). If, after review ing the briefs submit ted by appell ant and his couns el, this cour t deter min es the appeal has m erit, we will remand it to the trial court for appointment of new counsel. See Stafford v. State , 813 S.W .2d 503, 511 (Tex.Cri m.App. 1 991) . Thebri ef in supp ort of a motion to withdraw is a device for assuri n g that the ind igent defendant's constitutional right s have been "scrupulous ly honored. " McCoy v. Court of Appeals of Wisconsin , 486 U.S. 429, 444, 108 S.Ct. 1895 , 100 L.Ed.2d 440 (1 988). Such bri efs should prov ide us-3-

"with a basis for

determining whether appo inted counsel have fully perfor med their duty to support their cli ents' appeals to the best of their ability ." John son v. State , 885 S.W.2d 641, 646 (Tex.App.–Waco 1994, pet. ref’d) (citing McCoy

). Counsel has provided acopy of his brief to app ellant and informed appellant of his right to file a pro se brief. Appel lant has filed his ow n brief presenti ng two i ssues whi ch he contends show reversible er ror. The State hasnot r

espo nded to ei ther

bri ef.
The first issue in appellant’s pro se brief is that he was denied effe ctive assistance of counsel. In hi s second iss ue appellant conte nds he wasdenied due proces s. Many of the arguments are common to both issues and we wi ll address each argument i n turn. The standards by which the effectiveness of counsel is reviewed are set out in the seminal case of Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984) , and adopted by our C ourt of Crimina l Appeals in Hernandez v. Stat e , 726 S.W.2d 53, 57 (Tex.Cri m.App. 1986). In order to show trial co unsel was in effective, a claimant must establi sh two elements: 1) that his counsel' s performance was deficient, and 2) the deficient performance preju diced the defense. Strickland, 466 U.S. at 687. T he first componentis met by showing that trial counsel made errors s o significan t that he was not functioning as the counsel guaranteed by the Sixth Amendment to the United S t ates Constitution. Id. The second compon ent necessitates a sh ow ing that counsel's errors
were so serious that

they depri ved the defendant of a fair trial , i.e. , a trial whose result is reliable. Id. A claimant must show that, but for counse l's errors, there is a reasonable probability

that the resul t of the trial would have been different. Id. at 694. A reasonable probability

is one sufficient to undermine confidence in the outcome. Id. A claim of-4-

inef fec tive assistance of counsel must be affirmati vely s upported by the record. Tabora v. State , 14 S.W.3d 332, 336 (Tex.App.-- Houston [14th Di st.] 2000, no pet.)

. Appellant

alleges four

deficiencies of hi s trial counsel whi ch he argues show counsel’s performance wa s deficient. He contends counsel failed to communicate with him before tria l, fail ed to pr operl y inv

estig ate thecase, failed to info rm him o f th e effe ct o f a decision to te stify at tr ial, and failed to preserv e errors for review

. App ellant

does not point toanything in the recor d to support hi s content ions hi s attorney failed to comm unicate wi th him, conduct an investigation, or prepare him for trial. The record does s how

he was r

eleased on bond during the eighteen months between h is arrest and trial. There is no indi cat ion app ellant made efforts to contact his appoi nted attorney or that the attorney fail ed to respond to an y such efforts. The record contai ns no information concerning the time or effort appel lant’s counsel devoted totrial preparation. The only defensive issue he urges that trial couns el failed to inv estigate or

develop at trial
was that the complainant ’s father was angry at appellant because he had failed to get drugs the father had req uested. The recor d does not support

this contenti on. At trial appellant denied t he accusations against him a nd, when asked why t he family members
were making the allegations, testified h e did not k now. He did not makeany referenceto
a prior req u est that he purchase drugs. Appellan t does not allege he brought his inef fec tive assistance c laims to the attention of his appoin ted appellate atto rney or t h a t attorney failed to seek a new trial and obtain a heari ng wher e eviden ce o n theseclai ms could be presented. See Tex. R. App. P. 21.2. The only ev idence in the r ecord relevant to these cla ims appears b efore appellant’s test imony at trial. At that time the trial court-5-

asked appellant, out of

the presence of the jury, i f he was “sat isfied wit h the representati on you recei ved from Mr. Brown i n this case s o far?” Appellan t responded that hewas. Appellant

next arg ue s his tri al counsel’s failure to objec

t to conflicti ng testimony presented by the State wa s ineffective as sistance. H e also alleg es his counsel was deficient in faili ng to object on the basis the testimo ny was perjury. Consideration of this contention requires

a brief factual reci tation. Appell ant is a cousi n of Stephany, the complainant’s mo ther. S tephany is married to Vincent, the complainan t’s father. On November

23, 2001, that

couple, appell ant, and other extend ed family members were at
a relative’s house. Appellan t asked if Stephany and Vincent wanted to go to their house to drink alco hol. They ag reed and appellant brought “bo otleg” beer and gin to the house where they drank

and talked tog ether wit h Stephany’s father and his girlfriend. During t he evening the complainant and two of

her sister

s went to be d in their r

oom. After midnig ht, appellant

decided he could not dr ive safely and wanted to take a nap before leaving. He went to lay on the fl oor in the g irls ’ bedr oom.
Aboutan hour later

Vincent heard a thump in the bedro om and went to i nvestig ate. On ente ring t he ro om, he te stif ied, he sa w the compl ainant lyi ng on the floor n ext to appellant

and she waswearing only her top. Accordi ng to Vincent appellant’s pants were pulled down to his

knees but he was still w earing his

underwear

. Ste phany testifie d that appellant’s “shorts w

as down to hi s knees.” The co mplainant testified while she was as leep appellant

pul led her off

the bed onto the floor

with hi m. In response toleading q uestions the complainant agreed that ap pellant removed her shorts and und erwear and inserted his1 Even if therehad been some basisto object t o the test imony, a deci sion by

counsel could be a reasonable trial strateg y. Conflic ts in the pros ecution’s ev idence may weaken the State’s case and w ork to a defendant’sbenefit.

-6- finger in her “pr ivate.” She testified appel lant got on to p of her and she fel t his “pri vate” press agai nst her “pr ivate.” She did not know if appellant ever removed hi s underwear

. A ppellant

argues his trial counsel should have objected to the conflict in th e testimony

between Vincent and Steph any concernin g h is state of dres s, and that the conflict establishes his conviction was obtaine d t h r o u g h t h e u s e o f f a l s e t e s t i m o n y . We cannotagree. Co nflicting te stimony of tw o witness es to the same event does not establish either statement was

made knowing it was false. Compare Tex. Pen. CodeAnn. § 37.06 (Vernon 2003) (inconsistent statements of same witnes s, both of

which cannot be true, as perjury). Nor do conf licts betwe en witnesse s’ testimony destroy t he sufficiency of the evidence. Jimenez

v. State , 67 S.W.3d 493 , 505 (Tex.App. --Corpus Christi 2 002, pet. ref’d). It is the ex

clusive province of the jury to evaluate the c redibilit y of the witnes ses and
reso lve conflicting testimony. Id. ; see Tex. Code C rim. Proc. Ann. art. 38.04 (Vernon 19 79); Heiselbetz

v. State , 906 S.W.2d 500, 504 (Tex.C rim.App. 1995). The jury may believe one witness and r efu se to belie ve another, and may accept parts of a witness’s testimony an d reject other parts. See Losada v. State , 721 S.W .2d 305, 309 (Tex.Crim.App . 1986). Trial counsel’s failure to rai se an objection to the conflict between Vincen t’s and Stephany’s versions of the events is not evidence of deficient performance. 1 Moreover, the parent’s conflicting testimony di d not establis h any element of the offenses with w hich appellant was charged. See Tex. Pen. Code Ann. §§ 21.1 1, 22.021(a) (Vernon 200 3 & Supp. 2004).-7-

Appellant

also asserts his trial counsel failed to advise him that if he chose to te stif y, the State could use his prior convicti on to enhance his sentence. This alleg ation fails to show deficient performance by counsel beca use i t is no t an a ccura te st atem ent o f th e law. Appellant

was char

ged wit h a first degr

ee felony and a se cond degree felony . Section 12.42 o f the Penal Code author izes the us e of a prior felony convicti on to enhanc e punishment

of a felony conv iction. See Tex. Pen. Code Ann. §12.4 2(b), (c) (Vernon 2003). Those enhancement prov isions apply without regard to whether the defendant testifiesat trial. Id. We find no merit in the issues raised in appellant’s p ro se brief and over rule t hem.
We have also m ade an independent examination of the record to determine whether there are any arguable grounds which might support an appeal. See Stafford v. State , 813 S.W.2d 503, 511 (Tex.C rim.App. 1991 ). It doe s reveal oneissuethat me ritssome discussion. Coun t one of t he in dict men t alle ged a ppe llan t “int enti ona lly o r kn owingly cause[d] the penetration of the female sexual organ” of the v ictim on November 24, 2001. Count two all eged he “engage [d] in sex ual contact by touching the g enital s” of th e same victim on the same date. I ndecency w ith a child by touching the child'sgenitals can be a lesser inc luded offense of aggravated sexual assault of a child by penetrating the child's genitals if the same a ct is used to prove both th e touching and the penetration. Elder v. State , 132 S.W.3d 20, 23 (Tex.Ap p.--Fort Worth 2004, pet. r ef’d). See also Vick

v. State , 991 S.W.2d 830, 834 n.2 (Tex.C rim.App. 1999). Therefore, the face of the i ndictment raises a question whether c onstitutional protections ag ainst double j eopardy are impl icated

.-8-

In Vick , the Court of Cri minal Appeals consi dered a case in which a d efendant was acquitted of aggravated sexual assault based on an allegation of penetration of the victim’s sexual organ. 991 S. W.2d at 831. The defendant was indicted a second time, by a n indictment

alleg ing, i n two c oun ts, t wo different means of committi ng the offense. Id. The court agreed the defenda nt’s prosecution un der the first count, allegi ng contact, li kely was barred. Id

. at 834 n.2. It hel d the second count alleged a di fferent offense than the indictment

from which hewas acq uitted, arosefrom a s eparate act i n the s ame transaction, and was not

barred. Id. at 834. Here, the evidence shows eac h count of the indictment alleged offenses based on indepen dent ph ysical acts and do not i mplicate the r isk of double jeopardy

. Finding no meritorio us issues that could support a n ap peal, we grant counsel’s motion to wi thdraw and affir m the judgment of the t rial court

.

James T. Campbell Justice
Do not publish

.