### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-10-00775- CR

Jose Ar turo Alvarado, Appellant

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F WI LLIAM SO N COUNTY , 368TH JUDICI AL DISTRICT

NO. 09- 1881 -C36 8, H ONO RAB LE B URT CARNES, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N A jury found appe llant J ose Artur o Alvara do g uilty of ag g rava ted sexual assault of

a child and assessed punishment at thirty -five y ear s’ imprisonment. See Tex. Penal Code Ann. § 22.021 (West 2011). At trial, the five-y ear -old complainant testified that Alvara do penetr ated her vag ina with his penis. The sexual assault nurse examiner who examined the complainant following 1 her outcry testified that she observe d trauma to the complainant’s g enitals that was consistent with penetr ation. Alvara do’s videotaped confe ssion, in which he acknow ledg ed rubbing his penis on the child’s vag inal are a and the n ejac ulating, w as admitted into evidenc e.

Alvara do’s court-a

ppointed attorney has filed a motion to withdraw suppor ted by a brief c oncluding that this appeal is frivolous and without merit. The brief m eets the r equire ments

At the time of the a ssault, the complainant wa s four y ear s old. 1of An d er

s v. Calif ornia , 386 U.S.738, 744 (1967), by prese nting a profe ssional evalua tion of the

rec ord demonstrating why there are no arg uable g rounds to be advanc ed. See also Penson v. Ohio , 488 U.S. 75, 80 (1988); High v. State , 573 S.W .2d 807, 813 (Tex. Crim. App. 1978); Currie v. State , 516 S.W .2d 684, 684 (Tex. Crim. App. 1974); Jack son v. State , 485 S.W .2d 553, 553 (Tex. Crim. App. 1972); Gainous v. State , 436 S.W .2d 137, 138 (Tex. Crim. App. 1969). Alvara do rec eived a copy of counsel’s brief and was advised of his rig ht to examine the appellate re co rd an d to file a pro se br ief. Alvara do filed his pro se brief contending that (1) the jury was prejudice d during voir dire by the comments of another , disqualified venire person, (2) the State failed to disclose evidenc e pursuant to Brady v. Maryland , 373 U.S. 83 ( 1963), (3) the trial cour t erre d in excluding evidenc e under Rule 412( b) of the T exas Rules of Evidence , (4) the complainant’s testimony was the r esult of witness tamper ing, a

nd (5) his counse l rende red ine ffe ctive assist ance . We will briefly explain why Alvara do’s contentions lack arg uable merit. See Garner v. State , 300 S.W .3d 763, 767 (Tex. Crim. App. 2009); Bledsoe v . State , 178 S.W .3d 824, 826-27 (Te x . Crim. App. 2005).

I n his first arg ument, Alvara do asser ts that one of t h e p ro spective jurors made a comment during voir dire that may have biased the other jurors. I n response to the prosec utor’s inquiry of whether eac h venire person could consider the full rang e of punishment, venire person 48 said: “No, sir, I cannot. I ’ve be en an e lementar y , middle, and hig h school principal. I ’ve w orked with children who have been abused in their families. I t aff ects them their whole life. Ninety -nine is
not enoug h.” Alvara do claims that the trial judge should have instructed the rema ining prospec tive jurors to disreg ard the comment by venire person 48. I n addition, Alvara do contends that the trial

2judge should have made the jurors answ er t h e q uestions in writing or conducte d voir dire

individually

outside the hea

ring of the re maining pr ospective juror s. I t is a well-e stablished principle that the “trial court has broad discretion over the jury selec tion proce ss.” W

oods v. State , 152 S.W .3d 105, 108 (Tex. Crim. App. 2004). The appropr iate standard of

revie w is whether

the trial cour

t abused its discr etion. Boyd v. State , 811 S.W .2d 105, 115-116 (Te x . Crim App. 1991).

There was nothing improper about the prosec utor asking prospec tive jurors whether they could consider the fu l l ra n ge of punishment. Standefer v. State , 59 S.W .3d, 177, 181 (Tex. Crim. App. 2001). I n fac t, numerous prospec t i v e j u rors indicated that they could not consider the lower rang e of punishment of tw enty -five y ear s beca use of the nature of the crime and its repr eh en s i b ility ; all of t hose j urors were struck for cause , including venire person 48. Only those jurors who wer e willing to c ommit to consider the full rang e of punishment wer e allowed to sit on the jury

. The trial court g rante d all motions to strike based on cause , and there is nothing in the

2

rec ord that would support a claim that prospec ti v e j u ro rs who wer e objectionable to the defe nse

rema ined on the jury

.

Fur ther, there was no objection or reque st for a limit ing instruction by counsel. See Coble v. State , 330 S.W .3d 283, 292 (Tex. Crim. App. 2010) (noting tha t trial court’s instructions
to disreg ard are g ener ally considere d sufficie nt to cure impropriety of witness outbursts). Nor is

I t was to Alvara do’s benef it to lear n which jurors would only consider the high end of the 2 rang e of punishment so that they could be struck for cause . See Standefer v.State , 59 S.W .3d 177, 181 (Tex. C ri m . Ap p. 2001) (“[A] prospec tive juror must be able to consider the full rang e of punishment provided for a n offe nse or be challeng eable for c ause.” ).

3there any

thing in the rec ord indicatin g that counsel reque sted individualiz ed voir dire outside the prese nce of the other jur ors or the use of a w ritten questionnaire

. See Tex. Code Crim Proc. Ann. art. 35.17 (West 2006) (providing that trial court has discretion to r equire voir dire examination in prese nce of entire panel)

. To prese rve a complaint for appellate revie w, the rec ord must show that the complaint was made known to the trial judge by a timely reque st, objection, or motion that states the g rounds for the complaint with sufficie nt specific ity to make the judge awa re of the complaint, unless the g rounds are appar ent from the context of the reque st, objection, or motion. Tex. R. App. P. 33.1(a) (1); Lovill v. State , 319 S.W .3d 687, 691-92 (Tex. Crim. App. 2009). By failing to prese nt

a re quest, motion, or objection at trial, Alvar ado fa iled to preser ve the issue f

or re view. I n his next arg ument, Alvara do claims that the State failed to turn over Brady materia l rela ting to his interview at the W ill iamson County Police Depa rtment. See Brady , 373 U.S. at 87 (holding that prosec ution h as aff irmative duty to disclose evidenc e in their possession that is favor able and materia l to defe ndant’s case ). Prior to trial, Alvara do filed a moti o n t o s u p p ress the interview on g round s t hat his confe ssion was involuntary and obtained in violation of his constitutional rig hts. Upon deter mining that the interview was non-custodial, the trial court denied Alvara do’s moti o n t o suppress, and the confe ssion was ultimately admitted into evidenc e at trial. Alvara do now arg ues that the State failed to turn over evidenc e that would have shown that his confe ssion was the re sult of custodial interrog ation.

I t is undisputed that Alvara do drove to the police depar tment voluntarily

. He parke d 3 his car in a

parking lot at a nea

rby restaur ant and lef

t his cell phone in the car. Once inside police

The fac ts rec ited here in with reg ard to Alvara do’s interview and confe ssion are taken from 3 the testimony

prese nted at a pr etrial he aring on Alvara do’s motion to suppress. 4headqua

rters, Alvara do was questioned by Ag ent Hicks of the Texas Depa rtment of Public Safety

. 4 After a few hours, Alvara do told Hicks that he neede d to use his cell phone to make a phone call to postpone a job interview

that had bee n schedule d for that a fternoon. Hicks escor ted Alvara do out of the building and stood near by while Alvara do called the prospec tive employ er from his cell phone in the car . After making the call, Alvara do and Hicks returned t o the building and continued the interview. Eve ntually , Alvara do confe ssed to sexually assaulting the four- y ear -old victim. Alvara do claims that the interview chang ed from being non-custodial to custodial when they wer e outside in the parking lot. Alvara do claims that Hicks sat in the driver’ s seat while Alvara do was in the car , in essenc e, blocking him from leaving

. Hicks, on the other hand, testified that he stood near

by on the sidewalk. Alvara do asser ts that there could be video surveillance of the parking lot that would have supported Alvara do’s asser tion that he was blocked and that the State’s failure to turn over such video constitutes a Brady violation. Howeve r, there is nothing in the rec ord

conce rning an alleg ed video. See Hafdahl v. State , 805 S.W .2d 396, 399 n.3 (Tex. Crim. App. 1990) ( Brady does not require disclosure of information that is not in the State’s possession and that is not known t o exis t). There is nothing in the re cord to support Alva rado’ s claim that there was a tape, that the S tate ever knew about a tape, or that the S tate possessed any tape. See Harwood v. Stat e , 961 S.W .2d 531, 545 (Tex. App.—San Antonio1997, no pet.) (noting that Brady does not require State to produce evidenc e o f wh ich it has no knowledg e). Assertions of fac t that are outside the

rec ord ca nnot support a claim that Brady was violated.

Ag ent Hicks was a cer

tified poly g raph examiner and conducte d a poly g raph examination 4 of Alvar ado. 5I n his third arg ument, Alvara do cla i m s t h at h is trial counsel failed to “make clea r compelling arg uments to explain the g oal of introducing evidenc e” under Rule 412(b)( 1)(A) of the Texas Rules of Evidence

. Rule 412(b) allows evidenc e of specific instances of an alleg ed victim’s past sexual behavior to be admitted in a prosec ution for sexual assault or ag g rava ted sexual assault

o r a tt e mp t to c o mm it e it

h e r c r im e if th e e v id e n c e is n e c e s s a r y to r e b u t o r e xp la in s c ie n ti f ic o r me d ic a l evidenc e offe red by the State. Tex. R. Evid. 412(b). Whether evidenc e should be admitted during 5 trial is a matter that lies withi n t h e t ri al co urt’s discretion. Oprean v. State , 201 S.W .3d 724, 726 (Tex. Crim. App. 2006). An ap p el late court will not interfe re with the exercise of that discretion unless there is a

n abuse of

that discretion. An a

buse of discr etion occur s if the trial cour t deviates from applicable g uidelines and principles so that its discr etion falls outside the zone of rea sonable disag ree ment. Zuliani v. State, 97 S.W .3d 589, 595 (Tex. Crim. App. 2003).

I n this case , Alvara do’s counsel informed the trial court that he wanted to introduce evidenc e that the victim had been sexually abused by another family member prior to the acc usation made ag ainst Alvara do and that the evidenc e was nece ssary to explain the testimony from the sexual assault nurse examiner. The trial court allowed Alvara do to make a proff er of the evidenc e outside the prese nce of the jury

. At the conclusion of the hear ing, the trial court specific ally found that there

was no evidenc e of pr ior penetr ation even though there was evidenc e of touching

. Ba sed on these fac ts, combined with the fac t that the sexual assault nurse examiner could not say when the victim’s penetr ating injury occur

red, the trial court ruled that the proff ere d evidenc e did not fall within the

This rule is commonly ref err ed to as the “Te x as Rape Shield L aw.” See, e.g. , Hamme r v. 5 State , 296 S.W .3d 555, 566 (Tex. Crim. App. 2009) (re fer ring to Rule 412(b) of the Texas Rules of Evidence as the “ Texas Rape Shield L aw” ). 6exception of Rule 412 and was inadmissible. Considering the rec ord, it was well within the trial

court’s discr etion to decide tha t the evidenc e wa s inadmissibl e. 6 Next, Alvara do complains g ener ally of “witness tampering ” and cites to a federal statute, 18 U.S.C.A. § 3509, for the propo s i t i o n that defe nse counsel must be prese nt when there

are meeting s betwee n the prosec ution and the complainant. See 18 U.S.C.A. § 3509 (West 2000 & Supp. 2011). This fede ral statute is not applicable to a state court criminal p ro ce ed i n g. See 18 U.S.C.A. § 3001 (West 2001) (codify ing Fe d. R. Crim. P. 1) (fe dera l rules of criminal proce dure g overn proce eding s in United States district court). Fur ther, this statute conce rns child victims’ and child witnesses’ rig hts, and the provision cited by Alvara do perta ins to “compe tency ” examinations. Id . § 3509(c) . This arg ument prese nts no arguable mer it.

Finally , Alvara do arg ues that counsel was inef fe ct ive for the following rea sons: (1) counsel failed to make clea r, compelli n g ar gu m en t s to explain the g oal of introducing the evi d en ce u n d er Rule 412; (2) he advised Alvara do not to testify ; (3) he stated that he was more comforta ble play ing the part of prosec utor; and (4) he fail ed to ask rele vant questions and trea ted Al v ar ad o wi t h hostili ty during the hear ing on the motion to suppress. Alvara do also complains 7 about his appellate counsel’s failure to contac t him to explain her preliminary finding s in her brief.

Ev en i f t h e ev i dence fell within one of the exceptions in the rule, the trial court could 6 have d et er m i n ed t h at the probative value did not outweig h the dang er of unfair prejudice

. See De l a paz v. State , 297 S.W .3d 824, 827 (Tex. App.—Eastland 2009, no pet.) (evide nce that ch i l d victim had been previously assaulted by another rela tive did not fa l l within any exception to the Texas Rape Shield L aw)

. Alvara do makes a statement that “ther e wer e many compelling arg uments whi ch could 7 have been made, but for some unknown rea son . . . trial counsel chose not to make any of them.” This fails to present a

specific complaint. See Tex. R. App. P . 33.1(a) (1). 7To preva il on an ineffe ctive-a ssistance-of -counse l claim, Alvara do must prove by a preponde ranc e of the evidenc e that counsel was ineffe ctive. See Perez v. State, 310 S.W .3d 890, 893 (Tex. Crim. App. 2010) (citing Strickland v. W ashington , 466 U.S. 668 (1984))

. There are two require d components of an ineffe ctiveness claim: perf ormanc e and prejudice

. Id

. at 892. First, Alvara do must prove tha t counsel’s pe rfor mance was deficient. See Strickland , 466 U.S. at 687; Perez , 310 S.W .3d
at 893. To satisfy this prong of the analy sis, Alvara do “must show that counsel’s repr esenta tion fell below an objective standard of rea sonablene ss” based upon “pre vailing profe ssiona l norms.” See Strickland , 466 U.S. at 688; Perez , 310 S.W .3d at 893. For this performa

nce inquiry

we c onsider all of the circ umstances with “a strong presumption that counsel’s conduct falls within the wide rang e of

rea sonable prof

essional assistance .” Strickland , 466 U.S. at 689; Perez , 310 S.W .3d at 893. “Second, the defe nd an t m u s t show that the defic ient perf ormanc e prejudice d the defe nse. This requir es showing that counsel’s e rror s were so serious as to deprive the def endant of a fair trial, a trial whose result is reliable .” Strickland , 466 U.S. at 687. To succe ed under the prejudice component, Alvara do “mus t show that there is a rea sonable probability that, but for counsel’s unprofe ssional err ors, the result of the proce eding would have been differ en t

. ” S ee id

. at 694. A

rea sonable probability is “a probability sufficie nt to undermine confide nce in the outcome.” Id

. “I t is
not enoug h for the defe ndant to show that the err ors had some conce ivable eff ect on the outcome of the proce eding .” Id . at 693. Rather, he must show that “ther e is a rea sonable proba

bility that, absent the

err ors, the fac tfinder would have had a rea sonable doubt respe cting g uilt.” Id

. at 695. “I n making this deter mination, a court hear ing an ineffe ctiveness claim must consider the totality of the evidenc e befor e the judg e or jury .” Id

. “[A] ver dict or conclusion only wea kly supported by the rec ord is more likely to have be en af

fec ted by err ors than one w ith overwhe lming re cord suppor t.” Id . at 696. 8A Strickland claim must be “firmly founded in the rec ord, and the rec ord must

aff irmatively demonstrate” the meritorious nature of the claim. Thompson v

. State , 9 S.W .3d 808, 813 (Tex. Crim. App. 1999). For this rea son, direc t appea l is usually an inadequa te vehicle for raising ineffe ctive assistanc e cla ims. Goodspee d v. Stat e , 187 S.W .3d 390, 392 (Tex. Crim. App. 2005 ). “This is true with reg ard to the question of defic ient perf ormanc e—in which counsel’s conduct is revie we d wi t h g rea t defe renc e, without the distorting eff ects of hindsight—whe re counsel’s rea sons for failing to do something do not appea r in the rec ord.” Id

. Trial counsel should ordinarily be aff

orded an opportunity to e x plain his actions befor e being denounce d as ineffe ctive. Id

. “Abse nt such an opportunity , an appellate court should not find defic ient perf ormanc e unless the challeng ed conduct was ‘so outrag eous that no competent attorney would have eng ag ed in it.’” Id

. (quoting Garcia v. State , 57 S.W .3d 436, 440 (Tex. Crim. App. 2001)).

None o f t h e cl aim s made by Alvara do are firmly founded in the rec ord. We have alre ady explained that counsel proper ly objected to the Rule 412 evidenc e and that the trial court did

n o t abuse its discretion by ruling that the evidenc e was inadmissible. Wit h reg ard to Al v ar ad o ’s complaint that his attorney “strong ly advised” him not to testify , the rec ord shows that he was g iven the opportunity

to testify but chose not to:

DEF ENSE COUNSEL : Mr. Alvara do, we’ re in the def en s e ca s e ri ght now. A n d t h i s i s y o u r o p p o r t u n i t y d u r i n g t h e g uilt/i nnocenc e phase to testify

. And I think, based on our discussions, y ou’ve made a decision about t h at. You understand that y ou have a constitutional rig ht to testify in this case in y o u r o wn defe nse. You also understand that if y ou choose not t o testify that y our decision not to testify , y our decision to rema in silent in court here , cannot be considere d by the jury as any evidenc e of g uilt in y our ca se?

9MR. AL VARADO: I understand.

DEF ENSE COUNSEL : Okay

. An d so what is y our decision this afternoon? What would y ou like to do? MR. AL VARADO: I choose not to testify

. DEF ENSE COUNSEL : Okay . You’d like to re main silent in court? MR. AL VARADO: Yes.

There is nothing in the rec ord that supports Alvara do’s claim that he wanted to testify but chose not to beca use of his counsel’s advice or what he would have said that would have been favor able in his defe nse. Thus, we could not conclude that there was a rea sonable probability that the result of the proce eding would have be en diffe rent if Alva rado ha d testified. To the extent Alvara do claims that his counsel failed to ask rele vant questions duri n g t h e hear ing on the motion to suppress and trea ted Alvara do as a hostile witness, there i s n o rec ord of what questi o n s Al v ar ado claims should have been asked or that counsel trea ted his client in an inappropria te manner . L ikewise, there is nothing in the rec o rd t o support any complaint ag ainst his appe l l at e counsel. I n fac t, attache d to counsel’s Anders brief is a thoroug h letter to Alvara do enclosing her brief and explaining the proce dures for him to file a pro se brief and for obtaining the

rec ord. On the limit ed rec ord b ef o re u s , t h ere is no basis in law or fac t for concluding on direc t appea l that counsel re ndere d ineffe ctive assistanc e. Ac cording ly , this iss ue lac ks arg uable mer it.

Having revie wed the rec ord, counsel’s brief, and Alvarado’s pro se brief, w e ag ree

w it h c o u n s e l th a t th e a p p e a l is w h o ll y f

r iv o lo u s . S

e e G a r n e r , 3 0 0 S. W. 3 d a

t 7 6 6 ; B le d

s o e , 1 7 8 S. W. 3 d at 826-27. Counsel’s motion to withdraw is g rante d.

10We affir m the judgme nt of conviction.

__________________________________________ Diane M. H enson, Jus tice Be fore Chief J ustice Jones, J ustices Pemberton a nd Henson Affir med Filed: F ebrua

ry 24, 2012 Do Not Publish

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