## NO. 12

- 22

- 00212

- CR

IN THE COU R T OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

ROJELIO BARBOZA , APPELLANT

V.

THE STATE OF TEXAS , APPELLEE §
§
§ APPEAL FROM THE 2ND DISTRICT

COURT

CHEROKEE COUNTY, TEXAS

MEMORANDUM OPINION Rojelio Barboza appeals his conviction for c ontinuous sexual abuse of a young child. In two issues, Appellant argues that the evidence is insufficient to support the trial court’s judgmen t and he received ineffective assistance of counsel at trial. We affirm

.

B ACKGROUND Appellant was charged by indictment with continuous sexual abuse of a young child. The indictment later was amended multiple times without objection, including an amend ment which added predicate acts of abuse against another victim . Appellant pleaded “not guilty,” and the matte r proceeded to a jury trial. The jury found Appellant “guilty” as charged and, following a trial on punishment, as se ss ed hi s punishment at impri sonment for sixty years. The trial court sentenced Appellant accordingly, and this a ppeal followed.

E VIDENTIARY S UFFICI E NCY In his first issue, Appellant argues that the evidence is insufficient to support the trial court’s judgment. Specifically, he c ontends that the respective testimonies of the alleged victims

are not specific enoug h to establish that the instances of sexual abuse to which they testified occurred within the time period set forth in the indictment.2

Standard of Review The Jackson v. Virginia 1 legal sufficiency standard is the only standard that a reviewing court should apply in determining whether the e v idence is sufficient to support each element of a criminal offense that the state is required to prove beyond a reasonable doubt. Se e Brooks v

. State , 323 S.W.3d 893, 895 (Tex. Crim. App. 2010). Legal sufficiency is the constitutional minimum required b y the Due Process Clause of the Fourteenth Amendment to sustain a criminal conviction. See Jackson , 443 U.S. at 315

– 16, 99 S. Ct. at 2786

– 87; s ee also Escobedo v. State , 6 S.W.3d 1, 6 (Tex. App.

– San Antonio 1999, pet. ref’d). The standard for reviewing a legal sufficiency challenge is whether any rational trier of fact could have found the essential elements of the offense beyond a rea sonable do ubt. See Jackson , 443 U.S. at 320, 99 S. Ct. at 2789; see also Johnson v. State , 871 S.W.2d 183, 186 (Tex. Crim

. App. 1993). The evidence is examined in the light most favorable to the verdict. See Jackson , 443 U.S. at 320, 99 S. Ct. at 2789; Johnson , 8 71 S.W.2d at 186. A jury is free to believe all or any part of a witness’s testimony or disbelieve all or any p a rt of that testimony. See Lee v. State , 176 S.W.3d 452, 458 (Tex. App.

– Houston [1st Dist.] 2004), aff’d , 206 S.W.3d 620 (Tex. Crim. App. 2006) . A successful legal sufficiency challenge will result in rendition of an acquittal by the reviewing
court. Se e Tibbs v. Florida , 457 U.S. 31, 41

– 42, 102 S. Ct. 2211, 2217

– 18, 72 L. Ed. 2d 652 (1982). Circumstantial evidence is as probative as direct ev idence in establishing guilt, and circumstantial evidence alone can be sufficient to establish guilt. Rodriguez v. State , 521 S.W.3d 822, 827 (Tex. App.

– Houston [1st Dist.] 2017, no pet.) (citing Sorrells v. State , 343 S.W.3d 152, 155 (Tex. Crim . App. 201 1)). Each fact need not point directly and independently to the guilt of the appellant, as long as the cumulati v e force of all the incriminating circumstances is sufficient to support the conviction. See Hooper v. State , 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). Juries are permitted to draw multiple reasonable inferences as long as each inference is supported by t h e evidence presented at trial. Id. at 15. Juries are not permitted
to reach conclusions based on mere speculation or factually unsu pported in ferences or presumptions. Id. An inference is a conclusion reached by considering other facts and deducing a l o gical consequence from them, while speculation is mere theorizing or guessing about the possible meaning of facts and evidence presen ted. Id. at 16.

1 443 U.S. 307, 315

– 16, 99 S. Ct. 2781, 2786

– 87, 61 L. Ed. 2d 560 (1979).3

The sufficiency of the evidence is measured against the offense as defined by a hypothetically correct j u ry charge. See Malik v. State , 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). Such a charge would include one that “accurately sets ou t the law, is authorized by the indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily r e strict the State’s theories of liability, and adequately describes the particular offense for which the defendant is tried.” Id. Dis cussion
T o meet its burden of proof that Appellant committed the charged offense, the State was required to prove that h e , during a period of thirty or more days in duration, committed two or more of the alleged acts of sexual abuse at a time when he was seventeen years of age or older and the victim is a child younger than fourteen years of age

. See T EX

. P ENAL C ODE A NN

. § 2 1.02(b) ( West Supp. 2022 ). The State need not prove the exact dates of the abuse, only that “there were two or more acts of sexual a buse that occurred during a period that was thirty or more days in duration.” Buxton v. State , 526 S.W.3d 666, 676 (Tex. A pp.

– Houston [1st Dist.] 20 17, pet. ref’d)

. The Evidence In the instant case, A.Z. , who was twelve

- years

- old at the time of trial , t estified that in 2014, when she was four or five

- years

- old , Appellant , who was her uncle, put his penis in her mouth for t h e first time. She further testified that this o ccurred two or three more times and that more than thirty days passed between the occ urrences

. She testified that in 2018 , 2 when she was around seven years old , Appellant took her into a room in his apartme n t , locked the door, told her to take off her pants and sit on top of him, at which point he rubbed her genitals with his hand for sev eral minutes. Additionally, Appellan t’s daughter, A.B., who was fifteen

- years

- old at the time of trial, testified that A ppellant touched her genitals in 2014 when she was seven

- years

- old. She testified that Appellant later touched her genitals on five different occasions over a time span of a year or two. Moreover, A.B. recounted that, on another occasion when she was ei g ht

- years

- old, she awoke on the floor and discovered that Appellant was using her hand to rub his genitals. A.B. stated that she noti ced a “white

- like goo” on her h and.

2 A.Z. testifi ed that Appellant touched her genitals when she was around seven

- years

- old. She testified that in 20 18, she was approxi mately seven or eight

- years

- old.4

Date Range Stated in the Indictment Appellant acknowledges that the testimony of a c hild victim, standing alone and without corroboration, is sufficient to support a conviction for continuous sexual abuse of a young c hild. See T EX

. C ODE C RIM

. P ROC

. A NN

. art. 38.07(a), (b) (West 2023 ); Garner v. State , 523 S.W.3d 266, 271 (Tex. App.

– Dall a s 2017, no pet.). Appellant contends , however , that A.Z.’s and A.B.’s respective testimo nies are insufficient because they do not su pport that the instances of abuse occurred within the date range set forth in the indictment of August 1, 2014 , t hrough Au g ust 1, 2017. It is a longstanding rule that the s tate is not required to prove that an offense was committed on the date alleged i n the indic tment , regardless of whether the words “on or about” are used , but it may prove that the offense was committed o n any date prior to the return of the indictment and within the period of limitations. 3 See Klein v. State , 273 S.W.3d 297, 304 n.5 (Tex. Crim

. App. 2008) ; Martin v. State , 335 S.W.3d 867, 873 (Tex. App.

– Austin 2011, pet. ref’d)

. Nonetheless , s everal co u rts , including this one, have discussed the necessity of prov ing that the instances of sexual abuse occurred within the date range sp ecified in the indictment , but only under certain circumstances. For instance, c ases prosecuted soon after Section 21. 02’ s
enactment often alleged a date range which began on Septemb er 1, 2007 , the effective date of the
statute

. See , e.g. , Martin , 335 S. W.3d at 873

. In such cases , b ecause sexual abuse which occurred pr ior to the statute’s effective date could not be used t o prove continuous sexual abuse of a young child, it was nece ssary to prove that the underlying instances of abuse occurred after that date

. See id. ; see also Gomez v. State , 459 S.W.3d 651, 660 (Tex. App.

– Tyler 2015 , pet. ref’d) ; Kuhn v. State , 393 S.W.3 d 519, 524 (Tex. App.

–Austin 2013, pet. ref’d). Moreover, because continuous sexual abuse requires proof that the victim is younger t han age fourteen and the actor is older than age seventeen, where the beginning or end of the date range is related to tho s e elements, e.g., where the end date coincides with the date of the victim’s fourteenth birthday, specific proof that the alleged ins tances of sexual abuse occurred within that date range would be necessary. See , e.g. , Martin , 335 S.W.3d at 873. Here , the August 1, 2014 , t hrough August 1, 2017 date range bears no relation to the effective date of the statute or the ages of Appellant , A.Z., or A. B

. , and Appellant has not

3 There is no limitations period for continuous sexual abuse of a child

. See T EX

. C ODE C RIM

. P ROC

. art. 12 .01(1)(D) (West 2005 )

.5

directed this court to any other circumstance that would necessitate proof that the underlying instances of sex ual abuse occurred within that date range. Accordingly, we conclude that whether the evide nce of underlyi ng abuse occurred within the alleged date range has no bearing on the sufficiency of the evidence under the facts of this c ase. Cf

. Klein , 273 S.W.3d at 304 n.5. We have reviewed the record in the instant case in the light most favorable to the jury’s verdict. See Jackson , 443 U.S. at 320, 99 S. Ct. at 2789. Having done so, we remain mindful that a jury is free to beli e ve all or any part of a wit ness’s testimony or disbelieve all or any part of that testimony. See Lee , 176 S.W.3d at 458. Moreover, we reiterate that the testimony of a child victim alone is sufficient to support a conviction for continuous sexual abuse o f a child. Garner , 523 S.W .3d at 271

. Based upon our review of the record, we conclude that based on A. Z. ’s and A.B.’s testimonies , the jury reasonably could have found that Appellant , during a period of thirty or more days in duration, committed two or more acts of sexual abuse at a time when he was seventeen years of age or older and A. Z

. and A.B. each were younger than fourteen
yea rs of age

. See T EX

. P ENAL C ODE A NN

. § § 21.02(b), (c)

. Appellant’s first issue is overruled.

I NEFFECTIVE A SSISTANCE OF C O UNSEL In his second issue, Appellant argues that his trial counsel was ineffective because he did not object to the State’s several requests to amend the indictment

. Standard of Review and Governing Law Claims of ineffective assistance of counsel are ev a luated under the two

- step analysis articulated in Strickland v. Washington , 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 674 (1984). The first step requires the appellant to demonstrate that trial counsel’s representation fell below an objective standard of r easonableness under prevailing professional norms. See Strickland , 466 U.S. at 688, 104 S. Ct. at 2065. To satisfy this step, the a ppellant must identify the acts or omissions of counsel alleged to be ineffective assistance and affirmatively prove that t hey fell below the professional norm of reasonableness. See McFarland v. State , 928 S.W.2d 482, 5 00 (Tex. Crim. App. 1996). The rev iewing court will not find ineffectiveness by isolating any portion of trial counsel’s representation but will judge the c l aim based on the totality of the representation. See Strickland , 466 U.S. at 695, 104 S. Ct. at 2 069. In any case considering the i ssue of ineffective assistance of counsel, we begin with the strong presumption that counsel was effective. See Jackson v

. State , 877 S.W.2d 768, 771 (Tex.6

Crim. App. 1994). We must presume counsel’s actions and decisio ns were reasonably professional and were motivated by sound trial strategy. See id. Appellant has the burden of rebutting this presumption by presenting ev i dence illustrating why his trial counsel did what he did. See id. Appellant cannot meet this bur den if the record does not affirmat ively support the claim. See Menefield v. State , 363 S.W.3d 591, 592 (Tex. Crim. App. 2012). A record that specifically f

ocuses on the conduct of trial counsel is necessary for a proper evaluation of an ineffectiveness claim. See Kemp v. State , 892 S.W. 2d 112, 115 (Tex. App.

– Houston [1st Dist.] 1994, pet. ref’d). Before being condemned as unprofessional and incompetent, d efense counsel should be given an opportunity to explain his or her actions. See Bone v. State , 7 7 S.W.3d 828, 836 (Tex. Crim. App. 2002). Thus, absent a properly developed record, an ineffective assistance claim usually must be denied as speculative, a n d, further, such a claim cannot be built upon retrospective speculation. Id. at 835. Moreover, after proving error, the appellant affirmatively must prove prejudice from the deficient performance of his attorney. See Hernandez v. State , 988 S.W.2d 77 0 , 772 (Tex. Crim. App. 1999); Burruss v. State , 20 S.W.3d 179, 186 (Tex. App.

– Texarkana 2000, pet. ref’d). The appellant must prove that his attorney’s errors, judged by the totality of the representation and not by isolated instances of error, denied hi m a fair trial. Burruss , 20 S.W.3d at 186. It is not enough for the appellant to show that the er rors had some conceivable effect on the outcome of the proceedings. Id. He must show that there is a reasonable probability that, but for his attorney’s er r ors, the jury would have had a reasonable doubt about his guilt or that the extent of his punishme nt would have been less. See id. ; see also Bone , 77 S.W.3d at 837. Discussion Here, Appellant sets forth in his brief that his attorney’s performance at t r ial fell below the professional norm because he did not object to the State’s several requests to amend the indictment , one of which added the allegations of predicate acts of abuse against A.B

. 4 Yet, the record before us is silent about trial counsel’s s trategy or why he chose the course he did. Indeed, Appellant acknowledges in his bri ef , “ The record is absent as to any mention abou t the

4 As Appellant notes in his brief, he was represented by two different attorneys during the course of proceedings, each of which declined to object to the S tate’s motions to amend the indictment. We refer to “counsel” singularly fo r ease of reference.7

indictments or a reason why a challenge to the indictment or its amendments [was] not made. Counsel cannot discern a ny trial strategy to failing to object [.]” Normally, a silent record cannot defeat the strong presumption of effective assistance of counsel. See Garza , 213 S.W.3d at 348; Thompson v. State , 9 S.W.3d 808, 813

– 14 (Tex. Crim. App. 1999); but see Menefie l d , 363 S.W.3d at 593 (holding if trial counsel is not given opportunity to explain al legedly deficient actions, appellate court shoul d not find deficient performance absent challenged conduct “so outrageous that no competent attorney would have engaged in it”); Andrews v. State , 159 S.W.3d 98, 102

– 03 (Tex. Crim. App. 2005) (reversing a

con viction “in a rare case” on the basis of ineffec tive assistance of counsel when trial counsel did not object to a misstatement of law by the prosecutor during argument). Thus, due to the silent record before us, we must presume that Appellant’s counsel ac ted in accordance with sound trial strategy unle ss his failure to object could be considered so outrageous that no competent attorney would have engaged in it. See Menef i eld , 363 S.W.3d at 593. Here, based on our review of the record, we conclude that t he “extremely unusual circumstances” present in A ndrews are not present in the case at hand. Counsel’s reasons in Andrews , if any, were unnecessary to resolve the ineffec t ive assistance of counsel claim. See Berry v. State , No. 05

- 04

- 01 161

- CR, 2005 WL 1515512, at *3 (Tex. App.

– Dallas June 28, 2005,

no pet.) (op., not designated for publication). But counsel’s failing to object to a misstatement of the law that is detrime n tal to one’s client when the harm is so clearly presented on appea l is quite different from determining whether to object to the Stat e’s request to amend an indictment potentially as a matter of trial strategy. See Scales v. State , 601 S.W.3d 380, 388 (T e x. App.

– Amarillo 2020, no pet.) (counsel’s failure to object to am endment of indictment is matter that lies within wide range of reas onable professional assistance , and because there is nothing in record to show why counsel chose not to object to amendmen t of indictment, court cannot say with certainty that counsel’s per formance was deficient or fell below objective standard of reasonab leness); cf. Jefferson v. State , 663 S.W.3d 758 , 764 (Tex. Crim. App. 2022) ( discussing possibility of sound trial strateg y for not objecting to request to amend indictment )

. Having reviewed the record in the instant case, we conclude that the facts be fore us are distinguishable from the facts in Andrews and that Appellant’s trial counse l’s alleged deficient conduct is no t “so outrageous that no competent attorney would have engaged in it.” See Menefield , 363 S.W.3d at 593 ; see also Scales , 601 S.W.3d at 388; cf. Jefferson , 663 S.W.3d at8

764

. Therefore, we hold that Appellant has not me t the first prong of Strickland bec a use the record does not contain evidence concerning Appellant’s trial counsel’s reasons for choosing the course he did. As a result, Appellant cannot overcome the strong presumption that his counsel performed effectivel y. Appellant also attempts to a d d ress the second prong of Strickland , ar guing that without the State ’s ability to use A.B. ’s testi mony under the amended indictment, t he jury “ conceivably ” could have found Appellant “ not guilty. ” However, we are mindful that to satisfy the second
prong o f Stri ckland , i t is not enough for the appellant to show that th e alleged errors had some conceivable effect on the outcome of the pro ceedings ; instead, h e must show that there is a reasonable probability that, but for his attorney’s supposed errors, the j u ry would have had a reasonable doubt about his guilt. See Burruss , 20 S.W.3d at 186

. Even so , we cannot conclude
t hat had the State not presented evidence that Appellant sexual ly abused his daughter , A.B., on several occasions over th e c ourse of years, the jury would ignore A.Z. ’s testimony that Appellant put his penis in her mouth on multiple occasions when she was f our or five

- years

- old and that he , on another occasion, rubbed her genitals for several minutes when she was around seven

- y ear s

old. Accordingly, we hold that Appellant has not met his burden under the second prong of Strickland. See id. In sum, Appella nt cannot overcome the strong presumption that his counsel performed effectivel y and has not met his burden of pro ving tha t there is a reasonable probability that, but for his attorney’s supposed errors, the jury would have had a reasonable doubt about his guilt. Accord ingly, Appellant’s second issue is overruled. D ISPOSITION Having overruled Appellant’s first and second i ssues, we affirm the trial court’s judgment

.

G REG N EELEY Justice Opinion delivered June 30 2023. Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

( DO NOT PUBLISH )

## COURT OF APPEALS

T WELFT H COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

JUNE 30 2023

NO. 12

- 22

- 00212

- CR

ROJELIO BARBOZA , Appellant V. THE STATE OF TEXAS , Appellee

Appeal from the 2nd Distr ict Court of Cherokee County, Texas (Tr.Ct.No. 21254 )
THIS CAUSE came to be hear d on the appellate record and briefs f iled herein, and the same be ing considered, it is th e opinion of this Court that t here was no error in the judgment

. It is therefore ORDERED, ADJU DGED, and DECREED that t he judgment of the co urt below be in all things affi rmed , and that this decision be c ertified to the court below for observance.

Greg Neele y , Justice

. Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.