No. 04-04-00095-CR
Delivered and Filed: May 4, 2005. DO NOT PUBLISH.
Appeal from the 226th Judicial District Court, Bexar County, Texas, Trial Court No. 2000-CR-0547, Honorable Phil Chavarria, Jr., Judge Presiding. Affirmed.
Sitting: Catherine STONE, Justice, Sarah B. DUNCAN, Justice, Sandee Bryan MARION, Justice.
Opinion by: CATHERINE STONE, Justice.
After a bench trial, appellant William Garza was convicted of aggravated sexual assault and indecency with a child. On appeal, Garza argues the evidence presented at trial was both legally and factually insufficient to support the convictions, and that the trial court erred in convicting him for both aggravated sexual assault and indecency with a child in violation of the Fifth Amendment's prohibition against double jeopardy. We affirm the trial court's judgment.
Background
The complainant in this case, M.V., was born on October 14, 1984. M.V. is the daughter of Patsy Vargas, and has two brothers, Ruben and Alex. M.V. was eleven years old when she met the appellant, William Garza. Garza began dating Patsy and would stay at their home two to three nights a week. M.V. testified that she lived with her family in a home located in Bexar County, Texas. M.V. had her own bedroom, and woke up one evening to discover Garza fondling her breasts. When she stirred, Garza hastily exited the room. These incidents occurred on five occasions, in a home located in Bexar County. M.V. did not tell anyone about the incidents because she was afraid. Although Garza did not threaten her, M.V. testified she did not know him very well and feared he was capable of harming her. In 1998, approximately one year after Garza began dating Patsy, M.V., Patsy, Ruben, and Garza moved into a two-bedroom home, also located in Bexar County. Patsy had recently given birth to Alex, who was fathered by Garza. Garza, Patsy, and Alex shared one bedroom while M.V. and Ruben shared the other bedroom. M.V. and Ruben took turns sleeping on the bed located in their bedroom and the couch located in the living room. M.V. testified that Garza's behavior continued upon moving to the new home. Beginning in October or November of 1998, M.V. woke up to discover Garza standing over her, with his hands under her clothes, touching her vagina. M.V. testified these incidents occurred ten to fifteen times while Garza resided with them and that Garza would immediately leave her room when she stirred in her sleep. M.V. did not inform anyone because Garza had recently fathered a child with Patsy and she did not want to tear the family apart. M.V. hoped Garza would simply stop touching her. M.V. ran away for two weeks in November 1998 alleging she just wanted to get away from Garza. Garza's behavior continued to escalate. M.V. woke up on several occasions and discovered Garza had inserted his finger into her vagina. M.V. would stir and tell Garza to leave her alone, and Garza would leave the room hastily. Although M.V. did not remember specific dates when the incidents were occurring toward the end of 1998, she remembered waking up January 1, 1999 and feeling Garza on top of her, having sex with her. M.V. tried to push Garza off herself, but testified she felt very weak and passed out. M.V. believed Garza had slipped something into her soda the evening before to sedate her. Garza discussed the New Year's incident with M.V in February or March of 1999. He offered to pay M.V. $25 a week to have sex with him. M.V. refused and told Garza to get out of her room. Garza entered the room again and offered M.V. $20 if she would permit him to perform oral sex on her. When M.V. refused, Garza told her not to repeat their conversation to anyone and walked out of the room. M.V.'s allegations were corroborated by Ruben. Ruben testified he remembered an incident in April 1999 when he was sleeping in the bedroom with M.V. Ruben was half awake when he witnessed Garza enter the bedroom and slip his hand under M.V.'s blanket. Garza ran out of the room when Ruben sat up. Ruben was disturbed by the incident but did not tell anyone because he did not actually see Garza touching M.V. inappropriately and was not sure Garza did anything wrong. Ruben spoke up in July 1999 when his suspicions were confirmed by a separate incident. Ruben testified he was half asleep in the bedroom and that Garza kept glancing into the room to see if he was awake. After a few minutes, Ruben got up to use the restroom and witnessed Garza leaning over M.V., who was sleeping on her stomach in the living room. Garza had his hands over M.V.'s clothing, touching her vaginal, buttock, and thigh region. Ruben told Patsy what he had witnessed, and Patsy questioned M.V. when picking her up from school. M.V. told her mother Garza had been sexually assaulting her, and Patsy contacted the authorities. Officer Rudy Leal of the San Antonio Police Department was dispatched to M.V.'s residence to investigate the sexual assault allegations. Leal testified M.V. had been crying and looked very upset. She was cooperative, but also seemed embarrassed and shy discussing the incidents. M.V. testified she felt nervous and "ashamed." M.V. identified the perpetrator as Garza and informed Leal the sexual assault had been going on for a few years. Leal advised M.V. to seek medical treatment, and she underwent a sexual assault examination at Alamo Advocacy Children's Center. The exam was consistent with the conduct described by M.V., but due to the time lapse between the date of the exam and the date the sexual assault stopped (approximately four months), the practitioner on duty, Patty Villareal, could not identify Garza as the perpetrator. At the time of the exam, M.V. told Villareal she was suffering from sleep disturbances and nightmares about Garza. After a bench trial, Garza was convicted of aggravated sexual assault and indecency with a child. The trial court assessed punishment at fifteen years imprisonment for each offense and ordered the sentences to run concurrently. Sufficiency of the Evidence
In two issues, Garza contends the evidence is legally and factually insufficient to support his convictions. A. Standard of Review
In reviewing a legal sufficiency challenge, we view the evidence in the light most favorable to the verdict, and determine whether any rational trier of fact could have found the essential elements beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Wilson v. State, 7 S.W.3d 136, 141 (Tex.Crim.App. 1999). In contrast, when conducting a factual sufficiency review, we view all the evidence in a neutral light and will set aside the verdict 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 v. State, 143 S.W.3d 814, 817 (Tex.Crim.App. 2004) (citing Zuniga v. State, 144 S.W.3d 477, 483 (Tex.Crim.App. 2004)). When conducting a legal and factual sufficiency review, we recognize that the trial court, as the trier of fact, may draw reasonable inferences from the evidence before it. Jones v. State, 944 S.W.2d 642, 647-48 (Tex.Crim.App. 1995), cert. denied, 522 U.S. 832 (1997). In a bench trial, the trial court is the exclusive judge of witness credibility and the weight afforded testimony. Id. It is within the discretion of the trial court to accept or reject any or all of the testimony of any witness. Williams v. State, 692 S.W.2d 671, 676 (Tex.Crim.App. 1984). We do not substitute our own judgment for that of the trial court. Jones, 944 S.W.2d at 648. B. Analysis
With respect to each offense, Garza complains that the evidence is not tied to the date alleged in the indictment, and that no evidence established that the conduct occurred in Bexar County. We disagree. The date alleged in the indictment is January 1, 1999. The "on or about" language in an indictment allows the State to prove a date other than the one alleged in the indictment as long as the date is anterior to the presentment of the indictment and within the statutory limitation period. Tex. Code Crim. Proc. Ann. art. 21.02(6) (Vernon 1989); Sledge v. State, 953 S.W.2d 253, 256 (Tex.Crim.App. 1997). The evidence at trial shows that the offenses occurred at a residence in Bexar County, Texas, anterior to the presentment of the indictment. In addition, the statute of limitations does not run until ten years from M.V.'s eighteenth birthday. Tex. Code Crim. Proc. Ann. art. 12.01(5) (Vernon Supp. 2004-05). The evidence is both legally and factually sufficient to support the trial court's conclusion the offenses occurred on or about January 1, 1999. This portion of Garza's argument is overruled. Under his sufficiency challenge, Garza argues the evidence is "too weak" to support his convictions and "a rational trier of fact could not have found the essential elements of the crime beyond a reasonable doubt." A person commits aggravated sexual assault when he intentionally or knowingly causes the penetration of the sexual organ of a child by any means. Tex. Pen. Code Ann. § 22.021(a)(1)(B) (Vernon 2003). A person commits indecency with a child by engaging in sexual contact with a child under the age of seventeen. Id. § 21.11. "Sexual contact" is defined as any touching of any part of the genitals of another person with intent to arouse or gratify the sexual desire of any person. Id. § 21.01. The evidence presented at trial showed that Garza entered M.V.'s bedroom on various occasions and touched her vagina. M.V. did not report Garza's conduct, and Garza eventually began placing his finger inside M.V.'s vagina while she was sleeping. The testimony of a child victim is sufficient to support a conviction for aggravated sexual assault. See Tex. Code Crim. Proc. Ann. art. 38.07 (Vernon Supp. 2004-05). Further, the trial court heard testimony from Ruben that he witnessed Garza slip his hand under M.V.'s blanket on one occasion and touch her inappropriately over her clothed vaginal, buttock, and thigh region while she slept in the living room on a separate occasion. The trial court reasoned Ruben was a credible witness because he testified he got along well with Garza and considered him a father figure. The nurse who conducted the exam also testified about the outcry statements of M.V.M.V. told the nurse she was having difficulty sleeping and detailed the sexual assault incidents. M.V.'s exam was consistent with the conduct she described. Although the nurse could not identify Garza as the perpetrator of the offense due to the lapse of time, there is no requirement that properly admitted outcry testimony be corroborated or substantiated by independent evidence. See Rodriguez v. State, 819 S.W.2d 871, 874 (Tex.Crim.App. 1991). Garza contends M.V. and Ruben did not provide credible testimony. Garza contends the children were upset they were having to share a bedroom in their new home and had motivation to fabricate stories about him. The trial judge, however, has discretion to assess the credibility of the witnesses, and we defer to the trial court's evaluation in finding the evidence sufficient to support Garza's convictions. Viewing the evidence presented at trial in a light most favorable to the judgment, we conclude that a rational trier of fact could have found the essential elements of aggravated sexual assault and indecency with a child beyond a reasonable doubt. Further, after viewing the evidence in a neutral light, we do not find the evidence supporting the judgment to be too weak to support Garza's convictions. Garza's second and third issues are overruled. Double Jeopardy
In his first issue, Garza contends that the trial court violated his double jeopardy rights by convicting him of both aggravated sexual assault of a child by penetrating the child's female sexual organ with his finger, and indecency with a child by touching the child's female sexual organ. Garza did not raise the double jeopardy claim at trial. Generally, a double jeopardy claim must be raised in the trial court to preserve the error for appellate review. Gonzalez v. State, 8 S.W.3d 640, 643-646 (Tex.Crim.App. 2000); Honeycutt v. State, 82 S.W.3d 545, 547 (Tex.App.-San Antonio 2002, pet. ref'd). There is an exception to the rule. The Texas Court of Criminal Appeals permits an appellant to raise a double jeopardy claim for the first time on appeal when the undisputed facts show that any double jeopardy violation is clearly apparent from the face of the record, and enforcement of the usual rules of procedural default serves no legitimate purpose. Gonzalez, 8 S.W.3d at 643. In this case, a double jeopardy violation is not clearly apparent on the face of the record. A violation of the double jeopardy clause occurs when the evidence establishes the defendant committed only one offense but he is convicted of both indecency with a child and aggravated sexual assault. See Ochoa v. State, 982 S.W.2d 904, 908 (Tex.Crim.App. 1998). Evidence of separate and distinct acts, even if committed in close temporal proximity, may lawfully give rise to two convictions. Hutchins v. State, 992 S.W.2d 629, 633 (Tex.App.-Austin 1999, pet. ref'd). Garza argues that "the alleged `penetration' of the sexual organ overlaps an allegation of `contact' of the sexual organ." The evidence adduced at trial, however, established that Garza touched M.V.'s vagina on several occasions and that his conduct later escalated to actual penetration on numerous occasions. The evidence presented by the State establishes separate and distinct acts that support his convictions. Because the record shows evidence of at least two distinct acts that support the two convictions, no double jeopardy violation is apparent on the face of the record. Therefore, Garza cannot raise this claim for the first time on appeal. We overrule Garza's first issue. Having overruled each of Garza's appellate issues, we affirm the trial court's judgment.