No. 05-03-01254-CR
Opinion Filed July 14, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 363Rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F96-32872-W. Affirmed.
Before Chief Justice THOMAS and Justices O'NEILL and MALONEY.
The Honorable Frances J. Maloney, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.
Opinion By Justice MALONEY.
The jury convicted Ramon Gutierrez Gonzales of aggravated sexual assault and assessed a ninety-nine-year sentence. In one issue, appellant complains the evidence is factually insufficient to support his conviction. We affirm the trial court's judgment.
BACKGROUND
This indictment alleges that the offense occurred in August 1995 when the complaining witness (M.S.) was younger than fourteen. M.S.'s mother and appellant were married at the time of the offense. This Court reversed appellant's first conviction and remanded this cause for new trial because the original court reporter never filed a record on appeal. At the time of this second trial, M.S. was twenty years old and married. WAS THE EVIDENCE FACTUALLY SUFFICIENT?
Appellant argues that the examining doctor found no signs of "physical evidence of abuse" and no witness testified that M.S. displayed any "anger, depression, loss of appetite, or sleep disorders." Appellant also argues that many times the alleged abuse occurred while M.S.'s mother and brother were sleeping nearby, and once M.S.'s mother heard of the abuse, she refused to allow the police to pick up the children from school and insisted on bringing them in herself-some three or four hours later. The State responds that M.S.'s testimony alone supports the conviction. It argues that the law does not require medical evidence to convict for aggravated sexual assault and appellant does not identify any contrary evidence that outweighs the evidence of guilt. Rather, all of appellant's other complaints are either minor discrepancies or credibility issues. 1. Standard of Review
In reviewing the factual sufficiency of evidence to support a verdict, we must answer one question-"[c]onsidering all of the evidence in a neutral light, was a jury rationally justified in finding guilt beyond a reasonable doubt." Zuniga v. State, 2004 WL 840786, at *7 (Tex.Crim.App. Apr. 21, 2004). We determine the factual sufficiency of evidence as follows: First, when considered by itself, evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt. Second, there may be both evidence supporting the verdict and evidence contrary to the verdict. Weighing all the evidence under this balancing scale, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met, so the guilty verdict should not stand This standard acknowledges that evidence of guilt can" preponderate" in favor of conviction but still be insufficient to prove the elements of the crime beyond a reasonable doubt. Stated another way, evidence supporting guilt can "outweigh" the contrary proof and still be factually insufficient under a beyond-a-reasonable-doubt standard.
Id. In conducting this review, we must not "substantially intrude upon" the factfinder's role as the sole judge of the evidence's weight and the testimony's credibility. See Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000); see also Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979). We must defer to the jury's decisions on credibility and weight. See Swearingen v. State, 101 S.W.3d 89, 97 (Tex.Crim.App. 2003). 2. Applicable Law
A person commits aggravated sexual assault if his sexual organ penetrates the mouth of a child younger than fourteen. Tex. Pen. Code Ann. § 22.021 (a)(1)(B)(ii) (Vernon Supp. 2004). Medical evidence is not required to prove sexual assault and the victim's testimony alone is sufficient to affirm a conviction for sexual assault. Bottenfield v. State, 77 S.W.3d 349, 356 (Tex.App.-Fort Worth 2002, pet. ref'd), cert. denied, 539 U.S. 916 (2003). 3. The State's Evidence a. The Complaining Witness
M.S. testified that she came to Texas when she was six years old. In Texas, she, her younger brother, her mother, and appellant all lived together in Lancaster. Appellant touched her for the first time while they were watching television. She was seven when appellant first put his hand under her shorts, rubbed her vagina, and felt inside and outside her vagina. After this happened, he would call M.S. into his and her mother's room or come into M.S.'s room to touch her. Appellant often sent M.S.'s mother on errands and would not let the children go with her because they were being punished. Then he would touch M.S. while her mother was away from the house and her brother was outside playing or in his room. As time went by, he not only touched her, but made her suck his breasts and his penis. Somewhere around the time she was eleven, twelve, or thirteen, he began to have intercourse with her. Appellant threatened M.S. that she, her brother, and her mother would be taken back to Mexico if she told her mother or anyone about the sexual abuse. She was always afraid of what would happen to them. M.S. started her menses at eleven and appellant was always asking her when it started and when it ended. Sometimes he would wear a condom, other times he would pull his penis out of her before he ejaculated. Sometimes appellant would give her money afterwards and she would give part of it to her brother and spend the rest. She began to give money to her brother because he walked in on appellant and her one time. She told her brother that appellant was "just checking me down there because I was hurt." M.S. warned her brother not to tell anyone, not even their mother. Later that same day, she told her brother the truth. M.S. turned thirteen on August 18, 1995. Around the end of August or beginning of September 1995, M.S.'s aunt Silvia, uncle, and their two children came to Texas. They all lived together in appellant's house. From that time on, she was never alone with appellant and the sexual abuse stopped. In February 1996, M.S. told Silvia, and subsequently M.S.'s mother, what appellant had been doing. b. The Brother
M.S.'s brother, C.S., testified that the only time he ever saw anything sexual between M.S. and appellant occurred when he was five or six years old. He walked into the bedroom he shared with M.S. and saw her on the bed clothed only in a shirt. Her legs were "spread open" and appellant had his hands and his face between his sister's legs. Appellant's hands were touching his sister's "private parts" and appellant had his mouth on her "private parts." Appellant jumped up and told him to go back to the kitchen. Appellant came into the kitchen and told him that M.S. had "a pain down there and he was just checking it out for her." M.S., however, never told C.S. that appellant was checking her out because she was hurt down there. When C.S. was about eight or nine years old, M.S. told him that appellant had been "messing with [MS]." and "giving her money not to tell." M.S. warned him not to tell because "if we'll tell, we'll get deported [and] sent to Mexico." M.S. frequently split the money with him, so he thought "it" was still going on. He never told because when he got older and thought about telling, he was afraid that he would get in trouble for waiting so long to tell. He "used to get in trouble" for lying or not timely telling. He never told his mother because he was "scared" and thought she would not believe him. The first time he ever told anyone he was eleven years old and testifying in court. c. Donna Persaud
Persaud, a pediatric physician at Parkland Hospital, testified that from September 1993 until February 2003, she evaluated children who were suspected of having been physically or sexually abused. In March 1996, she first examined M.S. M.S. began her menses when she was ten. Although it hurt when appellant tried to put his penis inside her, she never noticed any bleeding. When first examined, M.S. was as physically developed as an adult female and had reached "complete adult maturity." Her hymen tissue was "floppy" and "scanty" with no signs of tearing. By the age of nine, her hymen would have become more elastic to accept penetration. Either she had little hymen tissue to begin with and could have accepted penetration without "any kind of tear or trauma to the hymen" or she had more hymen tissue and repeated penetration "rubbed away to less tissue." The last incident of abuse had occurred six months before the exam-September 1995. This passage of time and M.S.'s development could account for her "normal" genital exam. Persaud explained that she had seen children who, when first examined, had penetrative traumas, semen in collections, sexually transmitted diseases, and even positive pregnancy tests and then later had normal genital exams. On cross examination, Persaud testified that M.S. exhibited no signs of emotional trauma. Nor did M.S. report any signs of eating problems, school problems, sexual acting out, fear, anger, or depression. d. Sherman Williams
Williams, a Lancaster police officer, responded to a call about sexual abuse of a child. When he arrived at the address, he spoke with M.S.'s mother. M.S. was at school. He did not pick up M.S. at school because her mother felt a uniformed police officer at school would embarrass M.S. Williams did not remember what time he first saw M.S.'s mother and was not sure how much time passed between the time he talked to her and when she and M.S. arrived at the station. He thought it was "something like three or four hours . . . according to the report." He did not remember telling her to "immediately" pick up M.S. Unless M.S.'s mother waited for the school day to be over before picking up M.S., a long time elapsed before they arrived at the station. At the station, Williams took statements from both M.S. and her mother. When he spoke with M.S., she appeared apprehensive, nervous, and uncomfortable. In response to her apprehension, he had a female civilian employee take down her statement. While giving the statement, M.S. became physically upset. e. The Mother
M.S.'s mother testified through an interpreter that she began working outside the home either in 1995 or 1996. She worked part time at the Family Dollar Store and on call as a waitress at a hotel, sometimes morning, afternoon, or evenings. Appellant arranged with his friend, Jorge Arias (also known as Ruben), to get her the hotel job and to drive her to and from work while appellant would watch the children. When M.S.'s mother asked M.S. about what appellant did to her, they both cried. After talking to M.S. and looking back, she remembered things that were strange. Appellant worked at home. Before MG. started working, appellant would send her on errands. She would try to take the children with her, but appellant would make the children stay at home telling her that "they were being punished because they either didn't clean their room or didn't obey or didn't do their homework." Once, when M.S. was eight, appellant sent M.S.'s mother to get a tool so he could work at home. She was not gone very long, and her son was outside when she got home, M.S. was on her mother's bed, and appellant was caressing her back. Appellant would not answer as to what he was doing and M.S. would not tell her anything. Another time when she woke up in the middle of the night, appellant was not in bed-he was peeking through the door. M.S.'s mother thought this was suspicious so she pretended to be asleep. Appellant came up close to see if she was asleep and then left the room. When M.S.'s mother noticed M.S. and her brother had extra money, she asked both of them where they got the money. Both told her that appellant gave them the money for good grades or behaving well. She then asked appellant about the money and he told her the same thing. M.S.'s mother did not call the police immediately because she had no papers and was afraid. Appellant had told her she couldn't go anywhere or sign any papers because immigration and the police were very hard and she didn't have papers. After appellant was arrested, he called M.S.'s mother from the jail and told her to tell M.S. to help him. He wrote M.S.'s mother letters asking for her forgiveness and wrote that he was guilty "of all the bad I have done." f. M.S.'s Aunt
Silvia testified through an interpreter that she, her husband, and their two children came to live with M.S., her mother, her brother, and appellant the first of September 1995. Silvia's husband worked with appellant and Silvia stayed home with the children. In February 1996, M.S. told Silvia that appellant had been abusing her since they first came to the United States. In response to the State's questioning, Silvia first answered she knew no details about the "touching," but later admitted that M.S. told her that appellant's penis had penetrated both her mouth and her vagina. As M.S. told Silvia about the "touching," M.S. began to cry. She asked Silvia not to tell because they would be deported. 4. The Defense's Evidence a. Ramon Gutierrez Jr.
Gutierrez, appellant's son from his first marriage, testified that he spent weekends and the summer months with appellant from the time he was very little until he was thirteen or fourteen years old. He slept in the room with M.S. and her brother. He attended summer school while at his father's house. Appellant would leave for work at the shop early in the morning and come home late at night. He also worked at the house. Ramon never saw appellant "do anything out of the ordinary." b. Appellant's Sister
Appellant's sister (Martha) testified that she came to visit her brother "many times" before he was arrested. She would stay at appellant's house with him, M.S., her mother, and her brother for a month or two at a time. Appellant worked ten or eleven hours a day "fixing cars." When Martha first came to visit, appellant worked in his shop in the yard. Later, he would go to the "place out of the house." When M.S. tried to talk to Martha about the abuse, Martha changed the subject because she thought M.S. was referring to appellant's "being an alcoholic guy, and we knew about that." The conversation embarrassed her. When questioned about what M.S. told her, she remembered M.S. said appellant was a good father. However, when questioned about her earlier testimony, she admitted that M.S. told her appellant was a good father, but he made a mistake. 5. Application of law to the Facts
Appellant relies on the absence of physical evidence or behavioral signs of abuse, inconsistencies in witnesses' testimony, M.S.'s mother's refusal to allow the police to pick up the M.S. from school, and that other people were nearby when some of the supposed abuse occurred to show that factually insufficient evidence exists to support the conviction. He argues the proof of guilt is outweighed by contrary proof. We disagree. Under the Zuniga standard, after reviewing and weighing the evidence supporting the judgment and the evidence contrary to the judgment, we cannot conclude that the contrary proof, if any, is so strong that the State did not meet the beyond-a-reasonable doubt standard. M.S.'s testimony alone supplied every essential element of the offenses charged. Persaud's testimony confirmed that medical evidence of penetration is not always present. Even when examining children that are pregnant, that pregnancy can be the only proof of penetration. Our review of the record revealed that the only behavioral manifestations were her crying when describing the abuse to others. The minor inconsistencies in testimony would go the credibility of the witnesses and the factfinder decided those issues for themselves. We cannot conclude that the contrary proof outweighed the proof of guilt. We resolve appellant's issue against him. We affirm the trial court's judgment.