Opinion
NO. 03-16-00680-CR
02-15-2018
Christopher Adam Alba, Appellant v. The State of Texas, Appellee
FROM THE DISTRICT COURT OF HAYS COUNTY, 22ND JUDICIAL DISTRICT
NO. CR-16-0241 , THE HONORABLE R. BRUCE BOYER, JUDGE PRESIDING MEMORANDUM OPINION
A jury found appellant Christopher Adam Alba guilty of two counts of indecency with a child by sexual contact for sexual conduct perpetrated against his fiancée's seven-year-old daughter, B.G. See Tex. Penal Code § 21.11(a)(1). The jury assessed appellant's punishment at confinement for 20 years in the Texas Department of Criminal Justice and a $10,000 fine for each count, see id. § 12.33, and the trial court sentenced appellant in accordance with the jury's verdicts, ordering the prison sentences to be served consecutively, see id. § 3.03(b)(2)(A). In a single point of error on appeal, appellant challenges the sufficiency of the evidence to support his conviction on Count II. We affirm the judgments of conviction.
BACKGROUND
The jury heard evidence that appellant dated Margaret Falcon for one and a half years. The two were engaged and lived together in a home in Wimberley, Texas, with Falcon's children, her seven-year-old daughter, B.G., and eleven-year-old son, R.G. They lived together for approximately six weeks before Falcon ended the relationship and moved with her children to San Marcos.
Falcon testified that approximately five months later, she and B.G. were "doing makeovers and dressing up and stuff with [Falcon's] friend" when B.G. told her mother that she had to tell her something. B.G. disclosed "that [appellant] made her touch his private and that it was slimy." Later, as they were waiting for the police, B.G. told her mother that she had to tell her something else. B.G. then told her mother that appellant "put his hand in her panties and touched her private." Falcon testified that as B.G. disclosed this, she demonstrated with a gesture of "put[ting] her hand like in the motion of touching her -- touching her private." The record reflects that at trial Falcon stood up to demonstrate this gesture for the jury and "put [her] hand basically covering [her] entire genital area." Falcon further testified that after B.G.'s outcry about the sexual contact, her behavior changed. She became aggressive and at times violent towards her mother. In addition, Falcon indicated that "[B.G.] couldn't see anything or hear anything having to do with sex because she would just -- she would flip [out]." As a result, Falcon began taking B.G. to counseling.
B.G., nine years old at the time of trial, testified that she didn't like thinking or talking about appellant "[b]ecause he hurt [her]." She said that he hurt her when "[h]e touched [her] and he made [her] touch him." B.G. described where the touching incidents occurred. She said that her family was lying on the bunk beds in her and her brother's room watching a movie, Cinderella. She testified that her mother and brother were lying on the bottom bed, and that she and appellant were on the top bunk. She was lying on her side facing the TV, and appellant was lying on his side behind her, "hugging her." B.G. also detailed the touching. She testified that appellant put his hand down "inside" her panties and touched "[t]he tip of [her] private" that "pee" comes out of. She further testified that appellant made her touch "[h]is private," which felt "wet." B.G. explained that "[appellant] touched [her] and [she] took his hand out, and then he made [her] touch him." She indicated that the touching made her feel "uncomfortable." During her testimony, B.G. circled the areas touched on anatomically correct drawings that were admitted into evidence.
DISCUSSION
Count II of the indictment charged appellant with indecency with a child by sexual contact, alleging that he "did then and there, with intent to arouse or gratify the sexual desire of the said defendant, engage in sexual contact with B.G. by touching the genitals of B.G., a child younger than 17 years of age." In his sole point of error, appellant asserts that the evidence is insufficient to support his conviction for this offense because the evidence failed to show genital contact.
Due process requires that the State prove, beyond a reasonable doubt, every element of the crime charged. Jackson v. Virginia, 443 U.S. 307, 313 (1979); Rabb v. State, 434 S.W.3d 613, 616 (Tex. Crim. App. 2014). When reviewing the sufficiency of the evidence to support a conviction, we consider all the evidence in the light most favorable to the verdict to determine whether, based on that evidence and the reasonable inferences therefrom, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319; Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013). In our sufficiency review we consider all the evidence in the record, whether direct or circumstantial, properly or improperly admitted, or submitted by the prosecution or the defense. Thompson v. State, 408 S.W.3d 614, 627 (Tex. App.—Austin 2013, no pet.); see Jenkins v. State, 493 S.W.3d 583, 599 (Tex. Crim. App. 2016); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We assume that the trier of fact resolved conflicts in the testimony, weighed the evidence, and drew reasonable inferences in a manner that supports the verdict. Jackson, 443 U.S. at 318; see Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009). We consider only whether the factfinder reached a rational decision. See Morgan v. State, 501 S.W.3d 84, 89 (Tex. Crim. App. 2016) (observing that reviewing court's role on appeal "is restricted to guarding against the rare occurrence when a fact finder does not act rationally") (quoting Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010)). "The key question is whether 'the evidence presented actually supports a conclusion that the defendant committed the crime that was charged.'" Id. (quoting Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007)).
The trier of fact is the sole judge of the weight and credibility of the evidence. See Tex. Code Crim. Proc. art. 38.04; Blea v. State, 483 S.W.3d 29, 33 (Tex. Crim. App. 2016); Dobbs v. State, 434 S.W.3d 166, 170 (Tex. Crim. App. 2014). Thus, when performing an evidentiary sufficiency review, we may not re-evaluate the weight and credibility of the evidence and substitute our judgment for that of the factfinder. See Montgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012). Instead, we must defer to the credibility and weight determinations of the factfinder. Cary v. State, 507 S.W.3d 750, 757 (Tex. Crim. App. 2016); Nowlin v. State, 473 S.W.3d 312, 317 (Tex. Crim. App. 2015). In addition, we must "determine whether the necessary inferences are reasonable based upon the combined and cumulative force of all the evidence when viewed in the light most favorable to the verdict." Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App. 2015) (quoting Clayton, 235 S.W.3d at 778). When the record supports conflicting reasonable inferences, we presume that the factfinder resolved the conflicts in favor of the verdict, and we defer to that resolution. Cary, 507 S.W.3d at 757; Blea, 483 S.W.3d at 33; Murray, 457 S.W.3d at 448-49.
Because factfinders are permitted to make reasonable inferences, "[i]t is not necessary that the evidence directly proves the defendant's guilt; circumstantial evidence is as probative as direct evidence in establishing the guilt of the actor, and circumstantial evidence alone can be sufficient to establish guilt." Carrizales v. State, 414 S.W.3d 737, 742 (Tex. Crim. App. 2013) (citing Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007)); see Tate v. State, 500 S.W.3d 410, 413 (Tex. Crim. App. 2016); Nowlin, 473 S.W.3d at 317. The standard of review is the same for direct and circumstantial evidence cases. Jenkins, 493 S.W.3d at 599; Nowlin, 473 S.W.3d at 317; Dobbs, 434 S.W.3d at 170.
As relevant to the allegation in Count II of the indictment in this case, a person commits indecency with a child by sexual contact if he "engages in sexual contact with the child." Tex. Penal Code § 21.11(a)(1). Sexual contact is "any touching by a person, including touching through clothing, of . . . any part of the genitals of a child." Id. § 21.11(c)(1). The term "genitals" is not statutorily defined. "Jurors may 'freely read [undefined] statutory language to have any meaning which is acceptable in common parlance.'" State v. Bolles, — S.W.3d —, No. PD-0791-16, 2017 WL 4675659, at *7 (Tex. Crim. App. Oct. 18, 2017) (quoting Kirsch v. State, 357 S.W.3d 645, 650 (Tex. Crim. App. 2012)); see Green v. State, 476 S.W.3d 440, 447 (Tex. Crim. App. 2015) (noting that undefined words are "to be understood as ordinary usage allows") (quoting Vernon v. State, 841 S.W.2d 407, 409-10 (Tex. Crim. App. 1992)); Avery v. State, 359 S.W.3d 230, 237 (Tex. Crim. App. 2012) (recognizing "that words not defined in the statute are used in their ordinary and common sense").
In her testimony, B.G. recounted the incident in which appellant engaged in sexual contact with her by touching her genitals. She provided specific facts about when it happened, where it happened, what she and appellant were doing, and how appellant touched her. B.G. described how appellant put his hand "inside" her panties and touched "[t]he tip of [her] private." She further testified that "pee" comes out of her private.
The testimony of a child sexual abuse victim alone is sufficient to support a conviction for indecency with a child by sexual contact. See Tex. Code Crim. Proc. art. 38.07(a), (b)(1) (uncorroborated testimony of child victim is sufficient to support conviction for sexual offense if child victim was 17 years of age or younger at time of offense); see also Ryder v. State, 514 S.W.3d 391, 396 (Tex. App.—Amarillo 2017, pet. ref'd); Villarreal v. State, 470 S.W.3d 168, 170-71 (Tex. App.—Austin 2015, no pet.); Johnson v. State, 419 S.W.3d 665, 671 (Tex. App.—Houston [1st Dist.] 2013, pet. ref'd). Courts give wide latitude to testimony given by child victims of sexual abuse. Ryder, 514 S.W.3d at 396; Cantu v. State, 366 S.W.3d 771, 776 (Tex. App.—Amarillo 2012, no pet.); Gonzalez Soto v. State, 267 S.W.3d 327, 332 (Tex. App.—Corpus Christi 2008, no pet.); see Villalon v. State, 791 S.W.2d 130, 134 (Tex. Crim. App. 1990). The child victim's description of what happened to her need not be precise; she is not expected to express herself at the same level of sophistication as an adult. Ryder, 514 S.W.3d at 396; Cantu, 366 S.W.3d at 776; Gonzalez Soto, 267 S.W.3d at 332; see Villalon, 791 S.W.2d at 134 ("The rules set out in [prior opinions of the court] reflect the important public policy that we cannot expect the child victims of violent crimes to testify with the same clarity and ability as is expected of mature and capable adults. To expect such testimonial capabilities of children would be to condone, if not encourage, the searching out of children to be the victims of crimes such as the instant offense in order to evade successful prosecution."); Smith v. State, 459 S.W.3d 707, 710 n.2 (Tex. App.—Texarkana 2015, pet. ref'd) ("It is understood that child sexual assault victims may well describe their relevant body parts without the sophistication, specificity, or anatomical accuracy employed by adults or, for that matter, by the criminal statutes being enforced.").
Accordingly, the jury here could have reasonably concluded that B.G.'s testimony that appellant touched "[t]he tip of her private" meant that appellant touched "any part of [her] genitals." See Jones v. State, 184 S.W.3d 915, 919 (Tex. App.—Austin 2006, no pet.) (recognizing that evidence that child victim was touched on her "privates" or her "private area" or "between her legs" can support finding that child was touched on anus or genitals); see, e.g., Gottlich v. State, 822 S.W.2d 734, 741 (Tex. App.—Fort Worth 1992, pet. ref'd), abrogated on other grounds by Arevalo v. State, 943 S.W.2d 887 (Tex. Crim. App. 1997) (concluding that "evidence was sufficient to show that the touching occurred in a place within the ambit of the [indecency] statute" where child victim described area of her body that defendant touched by using words "my private," "my pee pee" and "down there" as well as stating that defendant had placed "his hand down [her] pants and panties"); Guia v. State, 723 S.W.2d 763, 766 (Tex. App.—Dallas 1986, pet. ref'd) (child victim's testimony that appellant touched her in her "private place," where she "went to the bathroom," and where she "tee-teed," was testimony that "amply communicated to the jury that appellant touched the 'genitals' of [the] child as alleged"). Thus, B.G.'s trial testimony alone is sufficient to support appellant's conviction for indecency with a child by sexual contact as alleged in Count II. See Tex. Code Crim. Proc. art. 38.07(a), (b)(1); see also Ryder, 514 S.W.3d at 396; Villarreal, 470 S.W.3d at 170-71; Johnson, 419 S.W.3d at 671.
However, in addition to B.G.'s testimony, B.G.'s mother, Margaret Falcon, testified pursuant to the outcry statute about B.G.'s disclosure of the sexual contact. Falcon stated that B.G. told her that appellant "put his hand in her panties and touched her private." She described B.G.'s demeanor during the disclosure: "she was just crying real hard" and "was having trouble talking." She also testified about B.G.'s behavioral changes following the outcry. In addition, Falcon demonstrated for the jury the gesture that B.G. made to show her mother where appellant touched her. The record reflects that Falcon stood up to demonstrate the gesture for the jury and "put [her] hand basically covering [her] entire genital area." In conducting a sufficiency review, we presume that undescribed courtroom demonstrations support the jury's verdict. See Morales v. State, 293 S.W.3d 901, 909 (Tex. App.—Texarkana 2009, pet. ref'd) (concluding that, as appellate court, it was "constrained to defer to the jury's findings, based on its observation of the gestures and demonstrations at trial" that were "not transcribed and which we cannot see"); see, e.g., Johnson v. State, No. 14-99-00968-CR, 2001 WL 838079, at *5 (Tex. App.—Houston [14th Dist.] July 26, 2001, no pet.) (not designated for publication) (noting that testimony that knife was "about this long (indicating)" and "about this big, wide (indicating)" undoubtedly had significant impact on jury's assessment of size of knife and whether it constituted deadly weapon); Rogers v. State, 756 S.W.2d 332, 336 (Tex. App.—Houston [14th Dist.] 1988, pet. ref'd) (noting that undescribed testimonial gestures undoubtedly had significant impact on jury's assessment of exactly how appellant held his hand during robbery). Here, we have a brief description of the courtroom demonstration, which reflects that appellant touched B.G.'s genitals. The jury was able to see—as we cannot—the precise area indicated as the place on B.G.'s body that appellant touched.
Article 38.072 of the Texas Code of Criminal Procedure, the outcry statute, governs the admissibility of certain hearsay evidence in specified crimes against a child younger than 14 years old or a person with disabilities. See Tex. Code Crim. Proc. art. 38.072. The Legislature enacted article 38.072 to make admissible the testimony of the first adult in whom a child or disabled person confides regarding sexual or physical abuse. Martinez v. State, 178 S.W.3d 806, 810-11 (Tex. Crim. App. 2005). The statement of the child or disabled person to the adult is commonly known as the "outcry," and the adult who testifies about the outcry is commonly known as the "outcry witness." Sanchez v. State, 354 S.W.3d 476, 484 (Tex. Crim. App. 2011).
The demonstration occurred when the prosecutor asked Falcon about B.G.'s outcry:
Q. I want you to tell the jury what you remember about the words she used and if she was acting out what he had done.
A. Yeah. She said, "He -- he put his hand in my panties, Mommy, and touched my private," and put her hand like in the motion of touching her -- touching her private.
Q. When she was demonstrating for you where he had touched her, was she placing her hand in the area on State's Exhibit Number 13 that's circled in red and below circled in red?
A. I mean, it's like a -- can I stand up?
Q. Yes, ma'am.
A. She just said, "He put his hand in my panties and touched my private." She put it like this on her (indicating).
So -- I mean, I don't know what actual -- you know, the specific area, but she just
Q. And you didn't ask her anything
A. No, I didn't -- I didn't really -- you know, want to question her and make it worse. You know, she was crying and hysterical and I was just trying to console her.
Q. And -- and just so the record is clear, when you stood up to demonstrate for the jury, you put your hand basically covering your entire genital area.
As with B.G.'s testimony, Falcon's outcry testimony—including the demonstration of B.G.'s gesture showing where appellant had touched B.G.—was substantive evidence of the crime. See Bays v. State, 396 S.W.3d 580, 582 n.1 (Tex. Crim. App. 2013); see also Martinez v. State, 178 S.W.3d 806, 811 (Tex. Crim. App. 2005) ("[The first adult a child confides in regarding the abuse] may recite the child's out-of-court statements concerning the offense, and that testimony is substantive evidence of the crime."); Rodriguez v. State, 819 S.W.2d 871, 873 (Tex. Crim. App. 1991) ("Under Art. 38.072, by both the terms of the statute and by the legislative history, outcry testimony admitted in compliance with Art. 38.072 is admitted as an exception to the hearsay rule, meaning it is considered substantive evidence, admissible for the truth of the matter asserted in the testimony.").
The record reflects that after B.G. recounted the incident of appellant touching her "private," the prosecutor showed B.G. an anatomically correct drawing of a girl, admitted as State's Exhibit 13, and had her "circle on picture 13 the area where [appellant] touched [her] on [her] privates." Appellant later cross examined B.G. about her mark on the drawing:
Q. [B.G.], I'm going to show you what has been admitted into evidence. This is Number 13.
A. Yes.
Q. And this is a picture of -- is this a picture of a girl?
A. Yes.
Q. Okay. And is that little red mark your red mark?
A. Yes.
Q. Okay. Now you testified that [appellant] had put his fingers under your panties. Correct?
A. Yes.
Q. Okay. And you said that the tips -- let me go back to the picture.
You said that the tip of his finger would have been, is it fair to say, right at the bottom of where that red mark is?
A. About. Yes.
Q. Okay. So -- so at any time did his fingers -- when you say "touched your privates," it really didn't touch your private, did it?
A. It -- kind of, yes. Kind of did.
Q. Well, according to this drawing, it was really above your private.
A. Yes.
Q. Okay.
. . .
Q. [B.G.], I hate to ask you this. This is kind of embarrassing. Okay? But do you see that little line below there?
A. Yes.
Q. Is that where the pee-pee comes out?
A. Uh-huh.
Q. Okay. So are you telling the Court, the ladies and gentlemen of the jury, that where the pee-pee comes out, he didn't touch you there?
A. He didn't touch me there.Based on B.G.'s responses in this exchange and her mark on State's Exhibit 13, appellant argues that the evidence is insufficient to show contact with B.G.'s genitals because, according to appellant, the evidence—particularly her mark on the anatomically correct drawing—reflects that appellant touched B.G. above her genitals. We disagree.
First, we note that when B.G. was specifically asked whether appellant had "really" touched her privates, she indicated that he had: "[K]ind of, yes. Kind of did." Further, while appellant construes B.G.'s affirmative response to the comment that followed—"Well, according to this drawing, it was really above your private."—as indicating that appellant touched her above her privates and not on her privates, such construction is not the only way to interpret her response. B.G.'s response could also be construed as agreeing that the mark on the drawing reflects that appellant touched above her genitals but not necessarily as indicating that appellant actually touched above her genitals. That is, B.G.'s response could be addressing the drawing rather than the touching that occurred. She could have been agreeing that her mark on the drawing was inaccurate as to where she testified that appellant touched her. Similarly, appellant's focus on B.G.'s testimony indicating that appellant did not touch her "where the pee-pee comes out" fails to appreciate conflicting interpretations that can be made of that statement. Appellant construes the statement to mean that B.G. was saying that appellant did not touch her privates. However, this testimony could also be construed to mean that B.G. was saying that appellant did not touch that part of her privates where the pee comes out. Such an interpretation would be consistent with B.G.'s testimony that appellant touched "[t]he tip of [her] private," which would not be the internal or middle part of her privates where the pee comes out.
Appellant's interpretations of the evidence and testimony simply reflect possible inconsistences or conflicts in the evidence. Any inconsistencies or conflicts between B.G.'s testimony and her mark on the exhibit or within her testimony were before the jury. Reconciliation of any conflicts or contradictions in the evidence is within the exclusive province of the jury. Bowden v. State, 628 S.W.2d 782, 784 (Tex. Crim. App. 1982); Jimenez v. State, 240 S.W.3d 384, 402 (Tex. App.—Austin 2007, pet. ref'd); see Tex. Code Crim. Proc. arts. 36.13, 38.04. The jury was free to accept or reject any or all of the evidence presented by either side. See Lancon v. State, 253 S.W.3d 699, 707 (Tex. Crim. App. 2008); Wesbrook v. State, 29 S.W.3d 103, 111-12 (Tex. Crim. App. 2000). Here, the jury, as the exclusive judge of the facts and sole judge of witness credibility, was entitled to weigh the evidence and resolve evidentiary conflicts. See Jackson, 443 U.S. at 326; Blea, 483 S.W.3d at 33; Dobbs, 434 S.W.3d at 170; Clayton, 235 S.W.3d at 778. We find no flaw in the jury's resolution of any alleged conflicts or inconsistencies against appellant.
In assessing the legal sufficiency of the evidence, the reviewing court must "give deference to 'the responsibility of the trier of fact to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.'" Jenkins, 493 S.W.3d at 599 (quoting Hooper, 214 S.W.3d at 13); see Jackson, 443 U.S. at 318-19. Furthermore, we must be mindful that jurors are free to use their common sense and apply common knowledge, observation, and experience gained in the ordinary affairs of life when giving effect to the inferences that may reasonably be drawn from the evidence. Boston v. State, 373 S.W.3d 832, 837 (Tex. App.—Austin 2012), aff'd, 410 S.W.3d 321 (Tex. Crim. App. 2013); Eustis v. State, 191 S.W.3d 879, 884 (Tex. App.—Houston [14th Dist.] 2006, pet. ref'd). That said, from the evidence presented in this case—B.G.'s testimony and her mother's outcry testimony and accompanying courtroom demonstration—and the reasonable inferences drawn from it, the jury could have reasonably found beyond a reasonable doubt that there was evidence that appellant touched "any part of the genitals" of B.G. Therefore, the evidence is sufficient to establish the requisite elements of indecency with a child by sexual contact. Accordingly, we overrule appellant's sole point of error.
Because the parties are familiar with the evidence adduced at trial, and appellant limits his sufficiency challenge, we do not recite all of the evidence supporting appellant's conviction in our analysis. Rather, we limit our recitation to the evidence that is relevant to appellant's particular sufficiency challenge.
CONCLUSION
Viewing the evidence in the light most favorable to the verdict, a rational jury could have found beyond a reasonable doubt that appellant engaged in sexual contact by touching B.G.'s genitals. Therefore, the evidence is sufficient to support appellant's conviction for indecency with a child by sexual contact as alleged in Count II of the indictment. We affirm the trial court's judgments of conviction.
Appellant does not challenge the sufficiency of the evidence supporting his conviction for indecency with a child by sexual contact as alleged in Count I of the indictment. Nor does he raise any other issue challenging the judgment of conviction for Count I.
/s/_________
Melissa Goodwin, Justice Before Chief Justice Rose, Justices Pemberton and Goodwin Affirmed Filed: February 15, 2018 Do Not Publish