Opinion
No. 05-04-01707-CR
Opinion issued October 5, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court No. 3, Dallas County, Texas, Trial Court Cause No. F02-31637-TJ. Affirmed.
Before Justices MORRIS, WHITTINGTON, and LANG.
OPINION
Serafin Arellano appeals his conviction for aggravated sexual assault of a child under the age of fourteen. In three issues, appellant contends the evidence is legally and factually insufficient to support his conviction, the trial judge erred in admitting certain evidence, and the prosecutor improperly injected new facts during closing argument. We affirm the trial court's judgment.
Sufficiency of the Evidence
In his third issue, appellant contends the evidence is legally and factually insufficient to support his conviction. Under this issue, appellant claims the evidence is legally and factually insufficient because there is no testimony from a qualified outcry witness to corroborate the victim's testimony. We apply well-known standards when reviewing challenges to the legal sufficiency of the evidence. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Garcia v. State, 57 S.W.3d 436, 441 (Tex.Crim.App. 2001), cert. denied, 537 U.S. 1195 (2003). Viewing the evidence in the light most favorable to the verdict, we determine whether any rational trier of fact could have found the elements of the offense beyond a reasonable doubt. Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex.Crim.App. 2005); Escamilla v. State, 143 S.W.3d 814, 817 (Tex.Crim.App. 2004), cert. denied, 125 S. Ct. 1697 (2005); Simmons v. State, 109 S.W.3d 469, 472 (Tex.Crim.App. 2003); Santellan v. State, 939 S.W.2d 155, 160 (Tex.Crim.App. 1997). The jury, as sole judge of the witnesses' credibility and the weight to be given their testimony, is free to accept or reject any or all of the evidence presented by either side. See Margraves v. State, 34 S.W.3d 912, 919 (Tex.Crim.App. 2000); Wesbrook v. State, 29 S.W.3d 103, 111 (Tex.Crim.App. 2000); Thomas v. State, 3 S.W.3d 89, 92 (Tex.App.-Dallas 1999), aff'd, 65 S.W.3d 38 (Tex.Crim.App. 2001). In a factual sufficiency review, we view all of the evidence in a neutral light and will set the verdict aside only if the evidence is so weak that the verdict is clearly wrong and manifestly unjust, or the contrary evidence is so strong that the standard of proof beyond a reasonable doubt could not have been met. Escamilla, 143 S.W.3d at 817 (citing Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex.Crim.App. 2004)). The question under a factual sufficiency challenge is whether, considering all of the evidence in a neutral light, a jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga, 144 S.W.3d at 484. Evidence can be factually insufficient if (i) the evidence is too weak to support the finding of guilt beyond a reasonable doubt, or (ii) contrary evidence exists that is strong enough that the beyond-a-reasonable-doubt standard could not have been met. Zuniga, 144 S.W.3d at 484-85. In examining a factual sufficiency challenge, we defer to the factfinder's determination of the credibility of the evidence. Swearingen v. State, 101 S.W.3d 89, 97 (Tex.Crim.App. 2003). A person commits the offense of aggravated sexual assault of a child if he intentionally or knowingly causes the penetration of the sexual organ of a child by any means and the child was younger than fourteen years of age. Tex. Pen. Code Ann. § 22.021(a)(1)(B)(i) (a)(2)(B) (Vernon Supp. 2004-05). Testimony of a sexual assault victim is alone sufficient to prove an assault. Empty v. State, 972 S.W.2d 194, 196 (Tex.App.-Dallas 1998, pet. ref'd); Karnes v. State, 873 S.W.2d 92, 96 (Tex.App.-Dallas 1994, no pet.); see Tex. Code Crim. Proc. Ann. art. 38.07 (Vernon 2005) (requirement that victim inform another person of alleged sexual offense does not apply if victim was seventeen years or younger at time of alleged offense); see also Garcia v. State, 563 S.W.2d 925, 928 (Tex.Crim.App. [Panel Op.] 1978) (victim's testimony, standing alone, is sufficient evidence of penetration). Although appellant claims the evidence is legally and factually insufficient to support his conviction, we cannot agree. Appellant was charged with intentionally and knowingly causing the penetration of his daughter's sexual organ with his finger. At trial, J.P. testified her father began touching her when she was very young, maybe two or three years old. She testified the abuse began with appellant rubbing her chest and back, then putting his hand inside her underwear and rubbing her "private area." J.P. testified her "private area" was her vagina. A second incident occurred a year or two later. Appellant was sitting in a recliner and told J.P. to come to him. As she stood next to his chair, appellant put his hand inside her shirt and rubbed her back and buttocks. She ran in the kitchen when her mother called her. The third incident occurred when J.P. was approximately seven or eight years old and in the second grade. Appellant, J.P., and her three brothers had finished putting up the Christmas tree when J.P.'s mother arrived home. J.P.'s mother took the boys with her to pick up some food, and appellant asked J.P. to stay at the house with him. After the rest of the family left, appellant lifted J.P. on top of the clothes dryer and started kissing her on her lips and neck. He rubbed her back and buttocks. According to J.P., "the next thing" she knew, he was unzipping her pants. Appellant put his hand under her underwear and rubbed her, penetrating her vaginal area with his finger. J.P. testified this was the first and only time her actually penetrated her vagina. J.P. testified that, in addition to the above incidents, there were at least two other occurrences in which appellant kissed her "[l]ike a man would with his girlfriend or wife." One instance occurred when she was approximately fifteen years old and the other when she was about seventeen years old. In contrast, appellant testified that although he was a mean and strict father, he did not touch his daughter or do anything sexual with her. He claimed she was angry with him for his being so strict. He testified he was never alone with her, that someone else was always present. On J.P.'s testimony alone, there is legally sufficient evidence to support appellant's conviction for intentionally or knowingly causing the penetration of J.P.'s sexual organ with his finger. See Tear v. State, 74 S.W.3d 555, 561 (Tex.App.-Dallas 2002, pet. ref'd), cert. denied, 538 U.S. 963 (2003); Empty, 972 S.W.2d at 196. Regarding the factual sufficiency of the evidence, the jury was the exclusive judge of the facts, the credibility of the witnesses, and the weight to be given to their testimony. A jury decision is not manifestly unjust merely because the jury resolved conflicting views of evidence against appellant. After reviewing all of the evidence in a neutral light and giving due deference to the jury's assessment of the witnesses' credibility and resolution of evidentiary conflicts, we conclude the jury was rationally justified in finding appellant committed aggravated sexual assault by intentionally or knowingly causing the penetration of J.P.'s sexual organ with his finger. See Tex. Pen. Code Ann. § 22.021(a)(1)(B)(i) (a)(2)(B) (Vernon Supp. 2004-05). The State's evidence was not too weak to support these findings of guilt beyond a reasonable doubt. Furthermore, contrary evidence, strong enough that the beyond-a-reasonable-doubt standard could not have been met, does not exist. We therefore conclude the evidence is legally and factually sufficient to support appellant's conviction for aggravated sexual assault of a child younger than fourteen years of age. We overrule appellant's third issue.Admission of Evidence
In his first issue on appeal, appellant claims the trial judge erred in allowing Detective Bragg to testify about appellant's oral statement that he made while in custody. Under this issue, appellant argues his statement was not voluntary and was therefore inadmissible. Appellant further complains that "the record of the sub rosa hearing is couched solely in conclusory terms and is silent as to the facts that would illuminate whether the waiver was voluntary." After reviewing the record, we conclude appellant's objection at trial was not sufficient to preserve the complaint he now raises on appeal. To preserve a complaint for appellate review, a party must have presented to the trial judge a timely request, objection or motion that "stated the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context." Tex.R.App.P. 33.1(a)(1)(A). Thus, an objection must inform the trial judge of the basis of the objection and afford the judge the opportunity to rule. Castillo v. State, 79 S.W.3d 817, 827-28 (Tex.App.-Dallas 2002, pet. ref'd) (citing Purtell v. State, 761 S.W.2d 360, 365 (Tex.Crim.App. 1988)), cert. denied, 538 U.S. 924 (2003). If a party asserts a different complaint on appeal than the objection made at trial, the party waives the issue on appeal. Jones v. State, 111 S.W.3d 600, 604 (Tex.App.-Dallas, pet. ref'd) (citing Rezac v. State, 782 S.W.2d 869, 870 (Tex.Crim.App. 1990)); see Turner v. State, 87 S.W.3d 111, 117 (Tex.Crim.App. 2002) (if trial objection does not comport with appellant's appellate claim, appellant procedurally defaults appellate claim), cert. denied, 538 U.S. 965 (2003). When the State sought to impeach appellant with Detective Bragg's testimony, the judge removed the jury from the courtroom and held a hearing to determine whether the detective's testimony of appellant's custodial oral statement could be use for impeachment purposes. During the hearing, the prosecutor questioned Detective Bragg about what appellant said to the detective. Defense counsel then cross-examined the detective. Thereafter, the trial judge questioned Detective Bragg, asking whether she had read appellant his Miranda rights, which specific rights had been read to appellant, and whether appellant had voluntarily waived those rights before making the oral statement. The judge concluded the hearing, stating he would admit the testimony regarding appellant's statement for impeachment purposes if it was offered for that reason. Defense counsel then objected on the ground that, under sections 38.22 and 38.23 of the code of criminal procedure,the oral statements of a Defendant that [were] made in custody are inadmissible. The defense would further assert that the door has not been opened because the State-the general principle is that the State may not open the door itself. In other words, the Defendant was asked whether or not he had ever told anyone that he had kissed his daughter on the neck. That put the Defendant in the position of either referring to an inadmissible statement that he had made to the police or to saying, no, and accordingly [we're] asserting that the State is the one who has kicked the door open itself and cannot now claim that the Defendant opened the door when it is in response to the State's own questioning, which was a broad question just simply have you ever told anyone this? And that the Defendant is not obligated to answer, well, yes, I did tell the police officer in a legally inadmissible situation that I kissed my daughter on the neck, so accordingly we believe that the State-the State is not entitled to open the door itself, and thus, the general rule of 3822 [sic] and 3823 [sic] that these statements are inadmissible applies and we object for those reasons.The trial judge overruled appellant's objection and found "the statutory warnings were given and that there was no coercion, verbal or physical, and the statement appeared to be voluntarily made." At no point in the proceedings did defense counsel object that appellant's statement was "involuntary," nor did he articulate or specify why the statement was not voluntary. Appellant did not file a motion to suppress his oral statement or any other motion requesting a Jackson v. Denno hearing. Rather, defense counsel's focus at trial was that the statement was inadmissible because the State had improperly "opened the door." Because appellant's objection below ("State opened the door") does not comport with his objection on appeal ("statement was involuntary"), we conclude he has waived this issue. To the extent appellant complains the trial judge erred because he failed to enter the findings of fact and conclusions of law on the voluntariness of appellant's statement, we cannot agree. Written findings of fact and conclusions of law are only required when a defendant has raised the issue of the voluntariness of his statement. See Tex. Code Crim. Proc. Ann. art. 38.22, § 6 (Vernon 2005) ("In all cases where a question is raised as to the voluntariness of a statement of an accused, the court must make an independent finding in the absence of the jury as to whether the statement was made under voluntary conditions."). Because appellant did not file a motion to suppress his statements and did not raise the issue of voluntariness at trial, the trial judge was not required to make written findings of fact and conclusions of law and did not err in failing to do so. See Lindley v. State, 635 S.W.2d 541, 544-45 (Tex.Crim.App. 1982) (trial court did not err in not making findings of fact and conclusions of law when appellant did not specifically raise issue of voluntariness of his statements, did not object to admissibility of statements on grounds that statements were involuntary, and did not present any evidence on issue of voluntariness); Miller v. State, 666 S.W.2d 269, 273 (Tex.App.-Dallas 1984, pet. ref'd) (reading Lindley as requiring both evidence negating voluntariness and objection to admissibility to require entry of written findings of fact and conclusion of law); Hartfield v. State, 28 S.W.3d 69, 72 (Tex.App.-Texarkana 2000, pet. ref'd.) (holding article 38.22, section six, did not apply because appellant, who complained that he did not have opportunity to read transcription of oral statement, did not challenge voluntariness of statement); Jones v. State, 859 S.W.2d 537, 541 (Tex.App.-Houston [1st Dist.] 1993, pet. ref'd) (trial court not required to make any findings under section six when appellant did not make objection regarding voluntariness of statement). We overrule appellant's first issue.