OPINION
I. INTRODUCTION
A jury fоund Appellant Rolando Bazanes guilty of three counts of indecency with a child and assessed his punishment at twelve years’ imprisonment for each count. The trial court sentenced him accordingly, ordering that the sentences run consecutively. In four points, Bazanes argues that the jury charge was erroneous, that the evidence was legally insufficient to support his conviction, and that his defense counsel was ineffective. We will affirm.
II. Factual and Procedural Background
E.C.B., who was twelve years old at the time, and her younger sister B.B. were visiting thеir father, Bazanes, in Denton for two weeks. Bazanes operated an assisted-living business in his home; there was no bedroom for the girls in the home, and he and his daughters slept in a large closet. The night before the girls were to return to their home in McAllen, E.C.B. awoke to Bazanes trying to kiss her and trying to put his tongue in her mouth. Bazanes put his hand under her underwear and touched her genitals and put his hand under her shirt and grabbed her breast. He also pulled down his pajama pants, took E.C.B.’s hand, and placed it on his penis. He asked E.C.B. to kiss him bаck, to which E.C.B. said, “[N]o.” E.C.B. made a movement, and Bazanes stopped touching her.
The next morning B.B. could tell that her sister had been crying. She asked E.C.B. what was wrong, and her sister responded that she would tell her later. On the flight back to McAllen, E.C.B. told B.B. what had happened.
A Sexual Assault Nurse Examiner (“SANE”) examined E.C.B. approximately two months after the incident. The SANE nurse who examined E.C.B. did not testify at Bazanes’s trial, but another SANE nurse testified that the results of the examination showed blunt force trauma to E.C.B.’s hymen. 1 She explained that the injury could have been caused by penetration of a finger, a penis, or another object.
At Bazanes’s trial, E.C.B. testified that when her father touched her, she was uncomfortable and scared. She testified that Bazanes was breathing hard, that his penis felt “hard,” and that he moved her hand “a little” ovеr his penis. She also testified that when she was about five years old, Bazanes had kissed her neck and grabbed her buttocks when they were alone.
III. Jury Charge
In his first and second points, Bazanes complains that the jury charge was erroneous. Bazanes acknowledges that his defense counsel did not object to the jury charge, 2 but he argues that he was egregiously harmed by these errors. We will address each of his complaints separately below.
A. Standard of Review
Appellate review of error in a jury charge involves a two-stеp process.
Abdnor v. State,
If there is error in the court’s charge but the appellant did not preserve it at trial, we must decide whether the error was so egregious and created such harm that the appellant did not have a fair and impartial trial — in short, that “egregious harm” has occurred.
Almanza v. State,
B. Jury Charge on Culpable Mental State
In his first point, Bazanes argues that the jury charge erroneously allowed the jury to convict him of indecency with a child for “intentionally or knowingly” engaging in sexual contact with E.C.B., although the proper mens rea for the offense is the specific intent “to arouse or gratify the sexual desire of any person.” Tex. Penal Code Ann. § 21.11(c) (Vernon Supp. 2009). The State admits error but argues that Bazanеs did not suffer egregious harm as a result of the error.
The elements of indecency with a child are that the accused (1) engaged in “sexual contact,” (2) with a child, (3) younger than seventeen years of age, (4) whether the child is of the same or opposite sex. See id. § 21.11(a)(1). “Sexual contact” means the following acts, if committed with the intent to arouse or gratify the sexual desire of any person: (1) any touching by a person, including touching through clothing, of the anus, breast, or any part of the genitals of a child; or (2) any touching of any part of the body of a child, including touсhing through clothing, with the anus, breast, or any part of the genitals of a person. Id. § 21.11(c).
In this case, the abstract portion of the jury charge provided: “Our law provides that a person commits an offense if, with a child younger than 17 years old and not his spouse, whether the child is the same or opposite sex, he engages in sexual contact with the child.” It also defined “sexual contact” as “any touching of any part of the genitals or breasts of another person with intent to arouse or gratify the sexual desire оf any person." [Emphasis added.] Although the abstract portion of the charge did not use the terms “intentionally” or “knowingly” in defining the applicable substantive law, it included full statutory definitions of “intentionally” and “knowingly.”
The application portion of the jury charge allowed the jury to convict Bazanes of indecency with a child if it found beyond a reasonable doubt that “with the intent to arouse or gratify [his] sexual desire, [he] ... intentionally or knowingly engage[d] in sexual contact with [E.C.B.]” by touching her breasts (Count 1), by touching her genitals (Count 2), or by causing her to tоuch his genitals (Count 3). 3 [Emphasis added.]
We have seen this charge language before — also from a case out of Denton County^ — -and have held that it constituted
Looking at the charge as a whole, the abstract portion accurаtely stated the substantive law on the offense of indecency with a child — including the specific intent to arouse or gratify — thus informing the jury of what the State had and did not have to prove.
See Chiodo,
Regarding the state of the evidence, the primary contested issue at trial was whether E.C.B.’s testimony was credible. As we explain more fully in addressing Bazanes’s third point below, the specific intent required for the offense of indecency -with a child may be inferred from Ba-zanes’s conduct, his remarks, and all of the surrounding circumstances — specifically from E.C.B.’s testimony in this regard.
See McKenzie v. State,
In conducting our egregious harm analysis, we next address the arguments of counsel. During its closing argument, the State did not refer to any requirement that Bazanes act intentionally or knowingly.
See Jones,
The next thing was the intent to arouse or gratify. We talked about, well, how is ... evidence of that shown? There’s not going to be an expert to come in here and tell you he acted with intent. You’re gong to have to look at the facts and circumstances surrounding the event.
Is this an individual changing a child’s diaper? Is this an individual giving a child a bath? No. This is in the closet at night with kissing, underneath the clothes, on the vagina. There’s the intent to arouse or gratify.
The defendant can say as many times as he wants that it was accidental, but we all know that you don’t touch a child in that manner after kissing in a closet in the middle of the night without it being intent to arouse and gratify.
Those are the elements. We have to prove those beyond a reasonable doubt, and we’ve done that.
Defense counsel then argued in his closing argument that the State had “to prove to each of you beyond a reasonable doubt not just that [Bazanes] touched her, but that hе touched her ... intentionally for a sexual purpose,” that he “did it intentionally to gratify sexual desires.” Finally, the State addressed the specific intent again in its rebuttal:
[Y]ou’ve got to prove that this was for sexual gratification. Ladies and gentleman, you don’t kiss someone with your tongue and feel their breasts and stick your finger on their vagina without it being for sexual gratification. A grown man doesn’t make a person, much less a child, touch his erect penis unless it is for the purpose of sexual gratification.
Consequently, the jury was not misled by the arguments of counsel and, instead, was repeatedly and correctly advised that the State had to prove that Bazanes possessed the requisite specific intent to arouse or gratify his sexual desire.
In light of our review of the charge, the evidence, the arguments of counsel, and other relevant information, we conclude that the complained-of error in the jury charge did not cause egregious harm to Bazanes.
See Almanza,
C. Jury Charge on Definition of Sexual Contact
In his second point, Bazanes argues that the definition of sexual contact in the jury charge erroneously failed to include the subsection (2) definition of sexual contact — “any touching of any part of the body of a child, including touching through clothing, of the anus, breast, or any part of the genitals of a child.” Tex. Penal Code Ann. § 21.11(c)(2). He argues that because the jury charge did not include this definition, the jury could not have properly convicted him of the offense alleged in Count 3 of the indictment (indecency with a child by causing E.C.B. to touch his genitals). The State argues that the dеfinition of sexual contact was correct and simply “combined the definitions [of sexual contact] into one sentence” and that, alternatively, any error did not result in egregious harm to Bazanes.
The charge used the general definition of “sexual contact” from penal code section 21.01, rather than the definition provided in section 21.11 that is applicable to the offense of indecency with a child.
Compare id.
§ 21.01(2) (Vernon Supp. 2009) (“ ‘Sexual contact’ means,
except as provided by section 21.11,
any touching of the anus, breast, or any part of the genitals of another person with intent to arouse or gratify the sexual desire of any person.”)
Assuming, without deciding, that the definition of “sexual contact” in the abstract portion of the jury charge erroneously omitted the definition of the type of contact alleged in Count 3 of the indictment, we note that the application portion of the jury charge properly applied the subsection (2) definition of sexual contact to the facts:
Now if you find from the evidence beyond a reasonable doubt that ... Ba-zanes, did then and there, with the intent to arouse or gratify the sexual desire of said defendant, intentionally or knowingly cause [E.C.B.], a child younger than 17 years and not the spouse of the defendant, to engage in sexual contact by causing the said child, [E.C.B.] to touch the genitals of the defendant ..., then you will find the defendant guilty of Indecency with a Child, as charged in Count III of the indictment.
Although such a proper application paragraph does not curе any error in the instruction, it does factor into the harm analysis.
See Cook v. State,
Because the application paragraph correctly instructed the jury on the elements of the offense of sexual contact as charged in Count 3 of the indictment, we hold that Bazanes was not egregiously harmed by any error in the definition of sexual contact.
See Medina,
IY. Legal Sufficiency of the Evidence
In his third point, Bazanes argues that legally insufficient evidence existed to show that he acted with the specific intent to arouse or gratify his sexual desires.
A. Standard of Review
In reviewing the legal sufficiency of the evidence to support a conviction, we view all of the evidence in the light most favorable to the prosecution in order to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.
Jackson v. Virginia,
This standard gives full play to the responsibility of the trier of fact to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.
Jackson,
The sufficiency of the evidence should be measured by the elements of the offense as defined by the hypothetically correct jury chаrge for the case, not the charge actually given.
Hardy v. State,
In determining the legal sufficiency of the evidence to show an appellant’s intent, and faced with a record that supports conflicting inferences, we “must presume— even if it does not affirmatively appear in the record — that the trier of fact resolved any such conflict in favor of the prosecution, and must defer to that resolution.”
Matson v. State,
B. Legally Sufficient Evidence of Specific Intent
The specific intent required for the offense of indecency with a child may be inferred from a defendant’s conduct, his remarks, and all of the surrounding circumstances.
See McKenzie,
Here, E.C.B. testified that she awoke to Bazanes trying to kiss her and trying to put his tongue in her mouth, that he put his hand under hеr underwear and touched her genitals, that he put his hand under her shirt and touched or grabbed her breast, and that he took her hand and placed it on his penis. She said that his penis felt “hard.” She further testified that Bazanes had told her to kiss him back, was breathing hard, and would move her hand a little over his penis. The jury, as the sole judge of the credibility of the witnesses and the weight to be given their testimony, could have inferred Bazanes acted with the intent to arouse or gratify
Viewing all of the evidence in the light most favorable to thе prosecution and deferring, as we must, to the jury’s determination and evaluation of the witnesses’ credibility and demeanor, we hold that there was evidence and reasonable inferences therefrom upon which a rational trier of fact could have found beyond a reasonable doubt that Bazanes acted with the intent to arouse or gratify his sexual desire.
See Jackson,
V. Effective Assistance of Counsel
In his fourth point, Bazanes argues that his counsel was ineffective for not objecting to the jury charge and not objecting to Nurse Fornara’s testimony on grounds of hearsay and improper bolstering.
A. Standard of Review
We apply a two-pronged test to ineffective assistance of counsel claims.
Strickland v. Washington,
To establish ineffective assistance of counsel, the appellant must show by a preponderance of the evidence that his counsel’s representation fell below the standard of prevailing professional norms and that there is a reasonable probability that, but for counsel’s deficiency, the result of the trial would have been different.
Strickland,
In evaluating the effectiveness of counsel under the first prong, we look to the totality of the representation and the particular circumstances of each case.
Thompson,
The second prong of
Strickland
requires a showing that counsel’s errors were so serious that they deprived the defendant of a fair trial, i.e., a trial with a reliable result.
Strickland,
B. Failure to Object to Jury Charge
Here, Bazanes first argues that his counsel was ineffective for not objecting to the “intentionally or knowingly” language in the jury charge. Had defense counsel objected to this error and the trial court overruled the objection, Bazanes would need to show some harm on appeal.
See
Tex.Code Crim. Proc. Ann. art. 36.19 (Vernon 2006);
Abdnor,
After a careful review of the record, we conсlude that Bazanes has failed to demonstrate a reasonable probability that the result of the proceeding would have been different had defense counsel objected to the jury charge.
See Strickland,
C. Failure to Object to Nurse Fornara’s Testimony
Bazanes next argues that his counsel was ineffective by failing to object to Nurse Fornara’s testimony. Bazanes did not file a motion for new trial; therefore, the record is silent as to defense counsel’s reasons for not objecting to this testimony. Generally, a silent record that provides no explanation for counsel’s actions will not overcome the strong presumption of reasonable assistance.
See Rylander v. State,
Based on the record before us, in light of the strong presumption of reasonable professional assistance by defense counsel, and in the absence of any opportunity for defense counsel to explain his motives for not objecting to Nurse Fornara’s testimony, we cannot say that Bazanes has met his burden of showing by a preponderance of the evidence that his trial counsel’s rep
Moreover, the entirety of Bazanes’s argument regarding his counsel’s ineffective assistance in this regard is that “[without Nurse Fornara’s unnecessary testimony, the jury could have focused entirely on the occurrence witnesses’ testimony.” This assertion is not proof that a reasonable probability exists that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.
See Strickland,
Having disposed of Bazanes’s ineffective assistance arguments, we overrule his fourth point.
VI. Conclusion
Having оverruled all of Bazanes’s four points, we affirm the trial court’s judgment.
Notes
. Photographs taken during the examination were also admitted into evidence.
. At trial, Bazanes’s defense attorney stated that he had 'Tnjo objections” to the proposed charge.
. The indictment also used the phrase "intentionally or knowingly”; Count 1 of the indictment alleged that Bazanes "with the intent to arouse or gratify [his] sexual desire ... intentionally or knowingly engage[d] in sexual contact with [E.C.B.], by touching the breasts of [E.C.B.], a child younger than 17 years of аge and not the spouse of [Bazanes].” Counts 2 and 3 were the same, except that Count 2 alleged the conduct as "touching the genitals of [E.C.B.],” and Count 3 alleged the conduct as "causing I E.C.B.] to touch the genitals of [Bazanes].”
. The majority of Bazanes’s argument in his third point is that we should not consider certain other testimony and evidence admitted at trial. We need not address his specific complaints because, under the appropriate standard of review and substantive law, E.C.B.’s testimony is sufficient to support the conviction.
See Connell,