Opinion
NO. 03-14-00317-CR
04-27-2016
Martin Escalante, Appellant v. The State of Texas, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 390TH JUDICIAL DISTRICT
NO. D-1-DC-11-301841, HONORABLE JULIE H. KOCUREK, JUDGE PRESIDINGMEMORANDUM OPINION
The State charged appellant Martin Escalante with indecency with a child by contact, alleging that he intentionally and knowingly engaged in sexual contact with his son, J.E., by causing J.E. to contact the breast of appellant's wife, who is also J.E.'s mother. See Tex. Penal Code § 21.11. A jury found appellant guilty of the offense and also answered "yes" to a special issue alleging that J.E. was younger than fourteen years of age at the time of the offense. The trial court assessed punishment at six years' imprisonment. See id. §§ 12.33, 21.11. In two issues on appeal, appellant challenges the sufficiency of the evidence to support his conviction and alleges error in the jury charge. During the pendency of this appeal, the State filed a motion for judgment nunc pro tunc, requesting that we correct alleged errors in the judgment. We will modify the trial court's judgment of conviction and affirm the judgment as modified.
DISCUSSION
Appellant raises two issues on appeal, arguing that (1) the evidence presented at trial is insufficient to support his conviction because the State failed to prove that appellant engaged in sexual contact with J.E.; and (2) the trial court erred in including language in the jury charge that was not alleged in the indictment. We will consider each issue below and then address our corrections to the language in the judgment.
Sufficiency of the Evidence
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 that can be drawn from it, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013). In our analysis, 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 319; Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010). We consider only whether the jury reached a rational decision. See Isassi, 330 S.W.3d at 638 ("Our role on appeal is restricted to guarding against the rare occurrence when a factfinder does not act rationally." (quoting Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009))).
Legal sufficiency of the evidence is measured by the elements of the offense as defined by a hypothetically correct jury charge. See Thomas v. State, 444 S.W.3d 4, 8 (Tex. Crim. App. 2014) (citing Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)). "A hypothetically correct jury charge is one that 'accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried.'" Id. (quoting Malik, 953 S.W.2d at 240). The law as authorized by the indictment means the statutory elements of the charged offense as modified by the factual details and legal theories contained in the indictment. See Daugherty v. State, 387 S.W.3d 654, 665 (Tex. Crim. App. 2013).
The statute under which appellant was convicted states the following, in relevant part:
(a) A person commits an offense if, with a child younger than 17 years of age, whether the child is of the same or opposite sex, the person:
(1) engages in sexual contact with the child or causes the child to engage in sexual contact[.]
. . . .
(c) In this section, "sexual contact" means the following acts, if committed with the intent to arouse or gratify the sexual desire of any person:
Tex. Penal Code § 21.11.(1) any touching by any person, including touching through clothing, of the anus, breast, or any part of the genitals of the child; or
(2) any touching of any part of the body of a child, including touching through clothing, with the anus, breast, or any part of the genitals of a person.
The indictment in this case alleged that appellant "intentionally and knowingly with the intent to arouse and gratify the sexual desire of [appellant], engage[d] in sexual contact with [J.E.], a child younger than 17 years of age, by causing [J.E.] to contact the breast of [J.E.'s mother]." Appellant argues that the two clauses in section 21.11(a)(1) above are distinct modes of committing the offense because they are separated by an "or" and that the State charged appellant incorrectly by alleging the first mode, that he engaged in sexual contact with J.E., rather than alleging the second mode, that he caused J.E. to engage in sexual contact. Appellant contends that the words "by causing [J.E.] to contact the breast of [J.E.'s mother]" merely alleged the manner and means by which appellant allegedly engaged in direct sexual contact with J.E. and did not allege the second mode of the offense.
However, we need not decide whether the State could have or should have charged the second mode of the offense (causing J.E. to engage in sexual contact) because we find the evidence sufficient to prove the charged mode of the offense (engaging in sexual contact with J.E.). We note at the outset that the trial judge came to the same conclusion in denying appellant's motion for directed verdict after the State rested its case at trial. The trial judge acknowledged that the language in the indictment was "a little awkward" and that it "could have been worded better" but denied the motion, noting that she considered the definition of "sexual contact" in making her ruling. We agree with the trial court's assessment and conclude that, even if the language of the indictment was not ideal, given the definition of "sexual contact" in the statute, the evidence is sufficient to prove the mode of the offense charged in the indictment. Specifically,"sexual contact" is defined in the statute as "any touching of any part of the body of a child, including touching through clothing, with the anus, breast, or any part of the genitals of a person." See id. Thus, based on the law as authorized by the indictment, the State could prove sexual contact between appellant and J.E. by proving that appellant engaged in the "touching of any part of the body of [J.E.], including touching through clothing, with the anus, breast, or any part of the genitals of a person." See id. (emphasis added).
The record here contains substantial evidence proving that appellant engaged in the touching of J.E.'s hand with the breast of "a person," in this case J.E.'s mother. To begin with, J.E., who was thirteen years old at the time of trial, testified that, on one occasion, appellant grabbed J.E. by the wrist and forced him to touch his mother's breast while she was sleeping. J.E. testified that appellant first forced him to touch her breast over her nightgown and then forced him to go under the nightgown and touch her skin. J.E. further testified that appellant made him touch his mother while she was sleeping on more than one occasion and would sometimes make him touch his mother on her "butt." He testified that appellant would put appellant's hand over his hand to direct it. J.E.'s mother testified that, on one occasion, she was sleeping in her bed and "woke up to [appellant] holding [J.E.'s] hand and guiding him and touching my breast." She testified that her breast was exposed when she awoke, and she saw appellant's hand on top of J.E.'s hand.
An investigator with Child Protective Services ("CPS") who interviewed J.E. after CPS learned of the allegations of abuse testified that J.E. was ten years old at the time of the interview and that J.E. stated that appellant made him touch his mother on her "upper and lower body parts" one to three times a week. The investigator also testified that J.E. told her that he was nine years old when the abuse began and that his father "would make him touch [his mother] under her gown" while she was sleeping. She further testified that J.E. stated that "it was hand over hand" when his father forced him to touch his mother. In addition to the investigator, a CPS forensic interviewer also testified that, during her interview of J.E., he told her that appellant made him touch his mother on her private parts multiple times a week for about a year. She testified that J.E. "identified breasts as private parts."
Considering all the evidence in the light most favorable to the verdict—including the testimony of J.E., the corroborating testimony of J.E.'s mother, and the testimony of the investigator and forensic interviewer—we conclude that a rational jury could determine beyond a reasonable doubt that appellant engaged in the touching of J.E.'s hand with the breast of J.E.'s mother, thus constituting sexual contact with J.E. as alleged in the indictment. See Jackson, 443 U.S. at 319; Temple, 390 S.W.3d at 360; see also Wooten v. State, No. 03-11-00667-CR, 2013 WL 1831571, at *7 (Tex. App.—Austin Apr. 24, 2013, pet. ref'd) (mem. op., not designated for publication) (victim's testimony alone was sufficient to support jury's conclusion that defendant committed indecency with child); Eubanks v. State, 326 S.W.3d 231, 241 (Tex. App.—Houston [1st Dist.] 2010, pet. ref'd) ("Outcry testimony alone can be legally sufficient evidence to support a conviction.").
Because we conclude that the evidence is sufficient to support appellant's conviction, we overrule his first issue.
Jury Charge
In his second issue, appellant contends that the trial court erred in including language regarding the second mode of committing the offense (causing J.E. to engage in sexual contact) in the definition of "indecency with a child" and in the application paragraph of the jury charge because the State did not allege the second mode in the indictment. The definition of "indecency with a child" in the jury charge in this case stated:
A person commits the offense of Indecency with a Child if, with a child younger than 17 years of age, whether the child is of the same or opposite sex, the person engages in sexual contact with the child or causes the child to engage in sexual contact.The application paragraph in the jury charge stated, in relevant part:
[I]f you believe from the evidence beyond a reasonable doubt that on or about the 1st day of June, 2010, and before the presentment of this indictment, in the County of Travis, and State of Texas, [appellant] did then and there intentionally or knowingly, with the intent to arouse or gratify the sexual desire of [appellant], engage in sexual contact with [J.E.], a child younger than 17 years of age, by causing the said [J.E.] to contact the breast of [J.E.'s mother], you will find the defendant guilty of the offense of Indecency with a Child by Contact and so say by your verdict[.]Appellant objected at trial to the inclusion of the phrase "or causes the child to engage in sexual contact" in the definition paragraph and to the phrase "by causing the said [J.E.] to contact the breast of [J.E.'s mother]." The trial court overruled his objections.
In reviewing claims of jury-charge error, we first determine if there was error, and, if there was error, we then decide whether the error caused sufficient harm to warrant a reversal. Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005); Kuhn v. State, 393 S.W.3d 519, 524 (Tex. App.—Austin 2013, pet. ref'd). The amount of harm necessary to warrant a reversal depends on whether the defendant objected to the jury charge. Ngo, 175 S.W.3d at 743; Kuhn, 393 S.W.3d at 524. If the defendant preserved error with a timely objection in the trial court, as appellant did here, the record need only show "some harm" to warrant a reversal. See Ngo, 175 S.W.3d at 743; Kuhn, 393 S.W.3d at 524. "Some harm" is shown when the error was "calculated to injure the rights of the defendant." See Barrios v. State, 283 S.W.3d 348, 350 (Tex. Crim. App. 2009) (quoting Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh'g)). In demonstrating that "some harm" occurred, a defendant must show that he suffered some actual, rather than merely theoretical, harm from the error. See Reeves v. State, 420 S.W.3d 812, 816 (Tex. Crim. App. 2013). In assessing harm, we consider (1) the entire jury charge; (2) the state of the evidence, including contested issues and the weight of probative evidence; (3) the argument of counsel; and (4) any other relevant information revealed by the record as a whole. Taylor v. State, 332 S.W.3d 483, 489 (Tex. Crim. App. 2011); Almanza, 686 S.W.2d at 171.
Here, we need not decide whether the trial court erred in including the challenged provisions in the jury charge because even assuming there was error, we conclude that the error would be harmless. In arguing that the inclusion of the challenged provisions was harmful, appellant contends that the provisions "improperly expanded the indictment allegations and basis of conviction" and further argues that, "[i]ndeed, given the lack of proof that appellant had sexual contact with [J.E.], this provided the only basis for conviction." However, we have already determined that the evidence is sufficient to prove the charged conduct: that appellant engaged in sexual contact with J.E. Thus, the challenged provisions did not provide the only basis for conviction. In a jury charge alleging alternative theories, harm must at least in part be measured against the likelihood that the jury's verdict was based upon an alternative available theory of culpability not affected by erroneous portions of the charge. Sanchez v. State, 376 S.W.3d 767, 775 (Tex. Crim. App. 2012). "When a jury returns a general guilty verdict on an indictment charging alternate methods of committing the same offense, the verdict stands if the evidence is sufficient to support a finding under any of the theories submitted." Id.
Further, there was considerable circumstantial evidence of appellant's guilt, including evidence that he had a fascination with incest and that, in addition to forcing J.E. to touch J.E.'s mother, he also made J.E. watch him engage in sexual acts with J.E.'s mother while she was sleeping and showed J.E. photos of appellant and J.E.'s mother involved in sexual acts. See id. (when assessing whether jury-charge error caused harm, presence of overwhelming evidence of guilt plays determinative role); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (circumstantial evidence is as probative as direct evidence in establishing guilt of defendant). Here, J.E. testified that on two occasions, appellant showed him photos of appellant and J.E.'s mother "sleeping together," some of which showed his mother's breasts outside of her nightgown. J.E. also testified that appellant made him watch as appellant touched J.E.'s mother "in the breast" and then "under the blanket" while she slept. The forensic interviewer testified that J.E. told her that appellant showed him photographs of appellant and J.E.'s mother having sex and that J.E. told her that appellant made J.E. watch while appellant and J.E's mother had sex. J.E.'s mother testified that, on one occasion, she and appellant were having sex in their bedroom when she noticed J.E. standing at the door of the bedroom and then saw him walk away. She further testified that, in the last two years of her relationship with appellant, he made comments to her "about incest and how it was something that he was highly interested in." She testified that appellant brought home magazines and books on the topic of incest and wanted her to read them. In addition, she testified that J.E. came into the bathroom "a couple times" while she was taking a shower, and he told her appellant sent him in to "help [her] take a shower." She testified that appellant would also tell J.E. to help her pick out nightgowns and "short skirt[s]." Further, she testified that appellant showed her photographs he had taken of her when she was sleeping, and the photographs showed her genitals and breasts. She also testified that photographs existed showing her and appellant engaged in sexual acts.
Appellant testified and denied the allegations of abuse but admitted that he had done online research about incest. He testified that he did so "for informational purposes" because his cousin contacted him about the possibility of her daughter being molested by another family member and asked him what the "signs of the outcries" were. He testified that he went online to try to find an answer. Appellant also testified that he took photographs of his wife and himself involved in sexual acts but denied that he did so without her consent and denied that he showed them to J.E.
We further note that the theory propounded by the defense during trial was that the touching never occurred, not that it was a particular kind of touching that was not sexual in nature. Thus, the way in which the alleged offense occurred was not a contested issue at trial. Rather, the defense elicited testimony throughout trial and argued during closing arguments that J.E.'s mother engaged in parental alienation after her separation from appellant and that she convinced J.E. to lie about the abuse allegations in order to keep appellant from seeing his children. Both the State's and the defense's closing arguments focused almost entirely on this issue and the credibility of J.E. Finally, we also note that the jury received the same definition of "sexual contact" that is set forth in the statute and that supports the guilty verdict based on sexual contact with J.E.
Given the entire record—including extensive evidence, both direct and circumstantial, that appellant engaged in the charged offense as supported by the definition of "sexual contact" in the statute and as set forth in the jury charge, and including the theories and contested issues presented at trial and set forth in closing arguments—we conclude that, even if the inclusion of language in the jury charge regarding the second mode of committing the offense was error, the error was harmless. See Sanchez, 376 S.W.3d at 775-76; Hooper, 214 S.W.3d at 13. Accordingly, we overrule appellant's second issue.
Corrections to Judgment
While this appeal has been pending, the State filed a motion for judgment nunc pro tunc, asserting that the judgment of conviction in this case contains errors and requesting that we modify the judgment accordingly. While it is the trial court that has the authority to enter a nunc pro tunc judgment pursuant to Rule 23.1 of the Texas Rules of Appellate Procedure, we have the authority to correct a trial court's judgment when we have the necessary information to do so. See Tex. R. App. P. 23.1, 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993); Figueroa v. State, 250 S.W.3d 490, 518 (Tex. App.—Austin 2008, pet. ref'd). After reviewing the record and judgment, we agree with the State that the judgment contains errors in need of correction.
Specifically, the record shows that appellant entered a plea of "not guilty" to the charged offense, that his guilt was determined by a jury, and that his punishment was assessed by the trial court. The record also shows that the trial court submitted a special issue alleging that J.E. was a child younger than fourteen years of age at the time of the offense, and the jury answered in the affirmative. A review of the judgment of conviction shows that the judgment incorrectly states that appellant entered a plea of guilty to the charged offense, does not indicate that he had a jury trial, does not indicate that the trial court assessed punishment, and does not mention the jury's affirmative finding on the special issue.
Accordingly, we modify the judgment as follows: (1) we delete the title of the judgment stating, "JUDGMENT OF CONVICTION BY COURT—WAIVER OF JURY TRIAL," and we substitute "JUDGMENT OF CONVICTION BY JURY" in its place; (2) under the portion of the judgment stating "Plea to the Offense," we delete the term "GUILTY," and we substitute the term "NOT GUILTY" in its place; (3) we delete the portion of the judgment stating "Terms of Plea Bargain: SIX (6) YEARS TEXAS DEPARTMENT OF CRIMINAL JUSTICE; TDCJ," and we substitute "Verdict of Jury: GUILTY" in its place; (4) before the phrase "Date Sentence Imposed," we add the following: "Punishment Assessed by: COURT"; (5) we add language to the judgment reflecting that the jury made an affirmative finding on the special issue alleging that the child victim was under the age of fourteen years; and (6) on the second page of the judgment under the heading "Punishment Assessed by Jury / Court / No election (select one)," we delete the "X" next to "Jury" and add an "X" next to "Court." As modified, the judgment of conviction is affirmed.
CONCLUSION
Having overruled both of appellant's issues, and having modified the judgment to correct errors, we affirm the trial court's judgment of conviction as modified, and we dismiss the State's motion for judgment nunc pro tunc as moot.
/s/_________
Cindy Olson Bourland, Justice Before Justices Puryear, Pemberton, and Bourland Modified and, as Modified, Affirmed Filed: April 27, 2016 Do Not Publish