Appeal from the 338th District Court Harris County, Texas
Trial Court Case No. 1481127
consists of Chief Justice Radack and Justices Keyes and
V. Keyes, Justice
convicted appellant, Johnny Melchor Macias, of the
third-degree felony offense of indecency with a child and,
after appellant pleaded true to the allegations in two
enhancement paragraphs, assessed his punishment at
thirty-five years' confinement. In three issues, appellant
contends that (1) his trial counsel rendered constitutionally
ineffective assistance of counsel when he failed to object to
the forensic interviewer's testimony concerning the
credibility of the child complainant; (2) the record does not
demonstrate that the visiting judge who presided over the
trial took the constitutionally-required oath of office; and
(3) the $80 in court costs assessed against him for
"summoning witness/mileage" is unconstitutional as
applied to him because it violated the confrontation clause
and the right to compulsory process. We affirm.
and L.P. dated for over thirteen years, and they had four
children together, including the complainant, D.M., who was
fourteen years old at the time of trial. By the summer of
2014, appellant and L.P. had ended their relationship, but
their children still saw appellant. On June 16, 2014, when
D.M. was twelve years old, L.P. left her children alone with
her cousin, and when she returned to the house she found D.M.
in tears. D.M. told L.P. that her cousin had said
inappropriate things to her and had made her feel
uncomfortable, but D.M. kept crying and eventually told L.P.
that "two other people . . . were inappropriate with
her." D.M. told L.P. that her eighteen-year-old cousin
was exposing himself to her and that her father, appellant,
"was exposing himself to her and was trying to get her
to touch him." L.P. testified that she had never heard
anything about appellant's touching D.M. inappropriately
other than his attempting to force her to touch him. L.P.
immediately called the police. In September 2014, L.P. took
D.M. to the Children's Assessment Center for a forensic
interview and a medical exam.
the State charged appellant solely with the offense of
indecency with a child by exposure. D.M. met with the
prosecutor in June 2016, and, as a result of this meeting,
the State also charged appellant with the offense of
indecency with a child by contact.
trial was presided over by the Honorable Reagan Clark, a
retired district judge who had taken senior status and was
sitting by assignment. The record does not reflect that
appellant ever objected to Judge Clark's presiding over
his trial, and he never raised any complaint in the trial
court concerning Judge Clark's qualifications.
testified at trial that, in June 2014, she told L.P. that
appellant was touching her and exposing himself to her. D.M.
could not remember the exact age that she was when appellant
began acting inappropriately with her, but she estimated that
she was around seven years old. D.M. testified that she would
be in the living room watching television with her brothers
and sister, and appellant would call her into his bedroom,
close the door, and expose himself to her. She stated that
appellant would grab her hand and try to make her touch his
penis. D.M. also testified that appellant would reach
underneath her shirt and touch her breasts and he would touch
her vagina, both over and underneath her clothes. D.M.
testified that this behavior occurred for years and did not
stop until appellant had begun dating his current girlfriend.
Gomez conducted D.M.'s forensic interview at the
Children's Assessment Center. Gomez testified that D.M.
spoke with her about an incident involving her father. Gomez
and the State then had the following exchange:
[The State]: Again, without going into detail as to what
[D.M.] told you, at some point you end the interview; is that
[The State]: Now, during your interview with her, did you
find her to be credible in what she was telling you?
[The State]: When your interview was over, did you find her
to be consistent with what she told you in the interview
room, with what she had told police officers and what you had
learned during your staffing process?
[Gomez]: I cannot recall the staffing. So, I don't know,
per se, what the law enforcement said. So, I can't
[The State]: That's fair. But you found her to be
credible when you were done; and after you spoke with police
officers, you had no reason to disbelieve she was a credible
counsel did not object to this testimony.
cross-examination, Gomez testified that D.M. did not report
that appellant had touched her inappropriately. Gomez also
testified that "[i]t's not [her] job to say whether
a child is lying or telling the truth" and that she has
had occasions where she believed a child was lying to her
during an interview and occasions where she could not tell if
a child was lying. When asked how she can tell whether a
child is being truthful, Gomez responded: "Consistency.
The details, the sensories. A lot of it goes into the sensory
details. And if more than one time the child is able to
detail more than one time and it is different, you know,
something different was said or something different was
done." Defense counsel asked Gomez how she could
determine if consistency existed when she does not view
police reports before conducting forensic interviews, and
Gomez stated, "Because the child narrates to me
everything that has happened to him or her and they're
able to take me through different times."
Marcella Donaruma, the attending physician at the
Children's Assessment Center, met with D.M. Dr. Donaruma
testified that D.M. disclosed to her that appellant had
exposed himself to her and tried to make her touch his penis.
Dr. Donaruma asked D.M. if appellant had ever touched her
inappropriately, and D.M. responded, "No." Dr.
Donaruma did not conduct a physical exam of D.M.
testified on his own behalf. He testified that he did not
have a good relationship with L.P. after they separated, and
L.P. usually spoke with his girlfriend, instead of him, over
matters concerning their children. Appellant testified that
he first learned about D.M.'s allegations against him in
2015 when Child Protective Services called him for an
interview. He stated that he cooperated with their
investigation and with the police investigation. He testified
that D.M.'s allegations were not truthful, and he denied
exposing himself to D.M., trying to make D.M. touch him, or
the jury found appellant guilty of indecency with a child by
exposure, but it was unable to reach a verdict on the charge
of indecency with a child by contact, and the trial court
declared a mistrial as to that charge. After appellant
pleaded true to the allegations in two enhancement
paragraphs, the jury assessed his punishment at thirty-five
the trial court signed the judgment of conviction, a total of
$759 in court costs was assessed against appellant, which
included $80 for "summoning witness/mileage."
Appellant did not file a motion for new ...