GUADALUPE RIVERA, Justice.
C.E.S., a juvenile, appeals from an order adjudicating him for delinquent conduct of aggravated sexual assault of a child. On appeal, C.E.S. raises three issues for review. For the reasons that follow, we affirm.
The State filed an original petition based on delinquent conduct on March 11, 2008. The State subsequently filed a first amended petition on March 18, 2009. In three counts, the amended petition alleged that on or about January 1, 2007, C.E.S. had engaged in delinquent conduct by: (1) committing aggravated sexual assault of a child, A.S., by contact of the sexual organ of C.E.S. to the sexual organ of A.S. (Count I); (2) committing aggravated sexual assault of a child, A.S., by contact of the sexual organ of C.E.S. to the anus of A.S. (Count II); and (3) committing indecency with a child, A. S., by exposure (Count III). See TEX. PENAL CODE ANN. §§ 22.021, 21.11 (West 2011). An outcry hearing took place on May 13, 2010.
At the beginning of the jury trial, on July 6, 2010, the trial court dismissed Count I and C.E.S. entered a plea of not true to Counts II and III.
In January 2007, C.E.S. and his cousin, A.S., resided in the home of their grandfather
At trial, Veronica Casillas, A.S.'s aunt, testified that she was the sister of A.S.'s mother, Martha Montez, and C.E.S.'s mother, Margie Santos. Casillas explained that A.S. stopped living with her mother at a young age because her mother was having a hard time. A.S. was in the second grade when she went to live with Santos, at the home of A.S.'s grandfather. C.E.S. also lived at that home during that time. A.S. lived with Santos for about six months. In the middle of January 2007, A.S. moved from her grandfather's house to Casillas' home.
In the summer of 2007, Casillas called the police after A.S. made statements to her about C.E.S. abusing her. A.S. had told Casillas that C.E.S. took her to Nichole's bedroom,
At trial, El Paso Police Officer John Paul Valles testified that on July 16, 2007, he responded to a phone call made by Casillas. Officer Valles went to Casillas' home and spoke with A.S. Officer Valles testified that A.S. reported that C.E.S. "had done nasty things to her" and that she further explained that C.E.S. "had put his private or penis into her butt." During her conversation with Office Valles, A.S. drew a picture of that one particular incident of abuse.
Laura M. Frescas, who was employed as a bilingual forensic interviewer with the Advocacy Center for the Children of El Paso in July 2007, testified that she interviewed A.S. on July 25, 2007. A.S. told her that C.E.S. had thrown her on the top bunk bed in his room, pulled down her underwear and pants, and that while she was facing down on the bed, he got on top of her.
On cross-examination, Frescas testified that when she asked A.S. if anyone else had ever touched her, A.S. indicated that three other individuals had touched her. On redirect, Frescas explained that it was common to have more than one offender when a child had an unstable environment and no one to protect her.
At trial, A.S. testified that she had lived in the same house as C.E.S. when she was eight years old, and that at that time, she was in the second or third grade. After
A.S. testified that C.E.S. would open his legs and sit on her legs. A.S. explained that C.E.S.'s private part would touch the inside of her butt and that C.E.S. would go up and down and would breathe hard. A.S. did not know what would make him stop. She testified that the abuse happened more than once and that it occurred in Nichole's room, C.E.S.'s brother's room, and his mom's room.
On cross-examination, A.S. admitted that prior to going to live at her grandfather's house with C.E.S. and his family, she had previously made three outcries against three different people for inappropriate touching. A.S. testified that no one has touched her since moving in with her aunt Veronica.
In three issues on appeal, C.E.S. contends that the trial court erred by permitting three outcry witnesses to testify at trial, that his trial counsel was ineffective, and that the evidence is legally and factually insufficient to support the jury's verdict.
In Issue One, C.E.S. asserts that the trial court erred in allowing Casillas, Officer Valles, and Frescas to testify as outcry witnesses over his objections. We review a trial court's designation of an outcry witness under an abuse-of-discretion standard, and we will not disturb the exercise of that discretion unless the record clearly establishes an abuse of discretion. Garcia v. State, 792 S.W.2d 88, 92 (Tex.Crim.App.1990). A trial court abuses its discretion when its ruling is outside the zone of reasonable disagreement. Chapman v. State, 150 S.W.3d 809, 813 (Tex. App.-Houston [14th Dist.] 2004, pet. ref'd).
On appeal, C.E.S. does not argue that Casillas was an improper outcry witness, but rather, contends that the trial court improperly allowed Officer Valles and Frescas to testify as additional outcry witnesses. C.E.S. further maintains that a new trial is required because the improper outcry testimony had a substantial and injurious effect or influence on the jury's determination of the verdict. Therefore, we must determine whether the trial court abused its discretion in admitting the testimony of the three individual outcry witnesses.
The record establishes that the outcry A.S. made to Casillas was C.E.S. took A.S. to Nichole's bedroom, undressed her, got on top of her, and would "grind" on her body. Nothing in the record establishes that A.S. told Casillas that C.E.S. had placed his penis in her anus or that his penis had made any contact with her anus. However, it was during A.S.'s conversation with Officer Valles that A.S. first expressed "how, when, and where" C.E.S. had abused her. See Reyes v. State, 274 S.W.3d 724, 727 (Tex.App.-San Antonio 2008, pet. ref'd) (stating that the proper outcry witness is the first adult to whom the child shares the "how, when, and where" of the assault). Similarly, the record reflects that A.S. did not tell Casillas or Officer Valles that the abuse by C.E.S. occurred more than once or that it took place in different bedrooms of their grandfather's house.
Even if we assume that error occurred in this case, we have a reasonable assurance that any error was harmless because A.S. testified about the abuse inflicted upon her by C.E.S. in the same manner as the three outcry witnesses, however, with more detail, and without objection. See Duncan v. State, 95 S.W.3d 669, 672 (Tex. App.-Houston [1st Dist.] 2002, pet. ref'd) (trial court's admission of outcry witness's testimony was harmless where the same facts were admitted into evidence without objection). Issue One is overruled.
In Issue Two, C.E.S. complains that his trial counsel rendered ineffective assistance of counsel because "[i]n a case which relied heavily on a child's testimony"
To prevail on a claim of ineffective assistance of counsel, Appellant must satisfy a two-prong test by a preponderance of evidence showing that: (1) his attorney's performance was deficient; and that (2) his attorney's deficient performance deprived him of a fair trial. Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Ex parte Chandler, 182 S.W.3d 350, 353 (Tex. Crim.App.2005). If the two-pronged test is not satisfied the ineffective assistance of counsel claim is defeated. Rylander v. State, 101 S.W.3d 107, 110-11 (Tex.Crim. App.2003).
On review, we presume that the attorney's representation fell within the wide range of reasonable and professional assistance. Mallett v. State, 65 S.W.3d 59, 63 (Tex.Crim.App.2001) (quoting Tong v. State, 25 S.W.3d 707, 712 (Tex.Crim.App. 2000)). Accordingly, ineffective assistance claims must be firmly found in the record, and the record must affirmatively show the alleged ineffectiveness. Mallett, 65 S.W.3d at 63 (quoting Thompson v. State, 9 S.W.3d 808, 814 (Tex.Crim.App.1999)). When the record is silent and does not provide an explanation for the attorney's conduct, the strong presumption of reasonable assistance is not overcome. Rylander, 101 S.W.3d at 110-11. We do not engage in speculation to find ineffective assistance when the record is silent as to an attorney's strategy at trial. Robinson v. State, 16 S.W.3d 808, 813 n. 7 (Tex.Crim. App.2000).
The record before us on appeal shows that C.E.S.'s ineffective assistance claim is not firmly founded in the record. First, the record is silent as to C.E.S.'s trial counsel's strategy. While it is conceivable that the offering of expert testimony in this case may have provided a more effective defense, due to the absence of an explanation as to why trial counsel decided not to call an expert witness, we will not speculate that trial counsel's decision did not constitute reasonable trial strategy. See id.
Second, although C.E.S. argues that his trial counsel was ineffective for not calling him to testify and asserts that he was not allowed to testify, the record does not support his allegations.
In Issue Three, C.E.S. challenges the legal and factual sufficiency of the evidence to support the jury's verdict that he committed delinquent conduct by committing the offense of aggravated sexual assault of a child.
While a juvenile proceeding is civil, we apply the criminal sufficiency standard. In re A.O., 342 S.W.3d 236, 239 (Tex.App.-Amarillo 2011, pet. denied). We reject C.E.S.'s factual insufficiency claim because Texas no longer recognizes factual-insufficiency claims. Brooks v. State, 323 S.W.3d 893, 895 (Tex.Crim.App.2010) (stating that the legal sufficiency standard is the sole standard that a reviewing court should use to evaluate whether the evidence is sufficient to support each element of a criminal offense).
In reviewing the legal sufficiency of the evidence, we consider all the evidence in the light most favorable to the verdict, and determine whether a rational juror could have found the essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Hooper v. State, 214 S.W.3d 9, 13 (Tex.Crim.App.2007). It is the responsibility of the jury to resolve conflicts in the testimony, to weigh the evidence, and to make reasonable inferences from the evidence. Hooper, 214 S.W.3d at 13; Brooks, 323 S.W.3d at 899. The jury can accept or reject all or part of the evidence presented. Margraves v. State, 34 S.W.3d 912, 919 (Tex.Crim.App.2000), overruled on other grounds, Laster v. State, 275 S.W.3d 512 (Tex.Crim.App.2009). On appeal, we do not reweigh the evidence and we do not substitute our own judgment for that of the jury. King v. State, 29 S.W.3d 556, 562 (Tex.Crim.App.2000). Any evidentiary inconsistencies are resolved in favor of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex.Crim.App.2000).
Specifically, C.E.S. argues that the evidence is legally insufficient to support his conviction because no credible evidence showed that C.E.S.'s penis penetrated the anus of A.S. On appeal, C.E.S. asserts that A.S.'s testimony about penetration was equivocal and unbelievable because there was no evidence of rectal tearing, or evidence that A.S. cried or screamed while she was being abused by C.E.S. A person commits aggravated sexual assault if he intentionally or knowingly causes the anus of a child to contact the mouth, anus, or sexual organ of another person, including the actor. See TEX. PENAL CODE ANN. § 22.021 (West 2011). C.E.S. was charged by petition for "intentionally or knowingly caus[ing] the anus of A.S., a child who was then and there younger than 14 years of age, to contact the sexual organ of C.E.S...." Because the allegation against C.E.S. was for contact, and not penetration, we examine the record, in the light most favorable to the verdict to determine whether any evidence exists that A.S.'s anus contacted C.E.S.'s sexual organ.
At trial, in recounting the abuse by C.E.S., A.S. testified that C.E.S.'s private part would touch the inside of her butt and explained that he would go up and down and that he would breathe hard. Additionally, the jury heard testimony from Officer Valles stating that A.S. had told him that C.E.S. had put his private into her butt.
Accordingly, we conclude that the evidence is sufficient to support the jury's finding that C.E.S. engaged in delinquent conduct by committing the aggravated sexual assault of a child under the age of fourteen. See TEX. PENAL CODE ANN. § 22.021 (West 2011). Issue Three is overruled.
Having overruled C.E.S.'s three issues, we affirm the judgment of the trial court.
ANTCLIFF, J., not participating.