Opinion
No. 05-14-01400-CR
01-27-2016
JOSE DELAPAZ REYES, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 3 Dallas County, Texas
Trial Court Cause No. F-1358294-J
MEMORANDUM OPINION
Before Chief Justice Wright, Justice Lang, and Justice Brown
Opinion by Justice Lang
A jury found appellant, Jose Reyes, guilty of continuous sexual abuse of a child under the age of fourteen. The trial court sentenced Reyes to thirty-five years imprisonment. In a single issue, Reyes asserts the evidence presented at trial is insufficient for a jury to conclude that at least two of the acts of sexual abuse occurred during a period of thirty or more days. We decide against appellant and affirm the judgment.
I. Factual and Procedural Background
In 2012, J.C. reported being sexually abused by the appellant from the time she was ten years old until around the time she was twelve years old. The appellant is J.C.'s uncle and the brother of J.C.'s mother. The sexual abuse is alleged by J.C. to have occurred at the home of her grandmother. J.C. and her sisters typically would spend the mornings with their grandmother while their mother worked. The appellant lived with the grandmother until he was arrested in 2013, and has never lived anywhere else. Appellant is seven years older than J.C.
J.C.'s mother testified at trial J.C. failed the fourth grade when she was ten. She noticed J.C.'s behavior changing in her teenage years around 2012. Previously, she was a happy peaceful child. In 2012, J.C.'s way of dressing changed, J.C. became very serious, and she rarely talked. J.C.'s grades also declined at this time. J.C.'s mother also testified that J.C. would come home from school and go straight to her room and lie down. In 2012, J.C.'s mother took J.C. to see a doctor because "she thought it was depression." After this visit to the doctor, J.C. was referred to a therapist for reasons that were unclear at that time to J.C.'s mother. The therapist whom they visited asked J.C. whether she had ever been abused. The mother said she was surprised that J.C. responded affirmatively to this question. The record is unclear when J.C. identified the appellant as her abuser. However, J.C.'s mother confronted her brother after J.C. met with the therapist. After J.C.'s mother confronted her brother, she did not allow J.C. to have any relationship with the grandmother or the appellant.
After J.C. reported the abuse, Detective Abel Lopez, a detective in the Sexual Assault Unit of the Dallas Police Department, was assigned to investigate the outcry. Lopez testified at trial that the first step in a sexual abuse case is to make contact with the family and submit the child to an interview by a forensic interviewer. The forensic interviewers are trained to interview such children in non-biased ways. As a result of the outcry against the appellant, a forensic interviewer interviewed J.C. Detective Lopez was not in the same room as J.C. at the time of this interview, but observed the interview of J.C. After this interview, the appellant was arrested and brought to the Dallas Children's Advocacy Center, for an interview. Lopez testified that he read the appellant his Miranda rights, the appellant voluntarily waived those rights, and appellant gave a statement. Lopez testified that the appellant admitted to penetrating the vagina of J.C. with his finger and to touching her breasts. He also admitted that he asked J.C. for oral sex several times, but she refused. Lopez testified that he felt appellant was minimizing his acts. Lopez also testified there was no physical evidence in this case because J.C. waited years after the abuse ended before making any outcry about the sexual abuse.
The record is unclear how Lopez observed this interview. Lopez testified that he was not normally in the room for forensic interviews and he observed them through a closed-circuit TV or a two-way mirror.
A videotape of this interview was published in the presence of the jury; however, this video was not preserved in the record on appeal. As a result, the only evidence before this court regarding the video is Lopez's testimony at trial summarizing the contents of the video. --------
Nakisha Biglow, a forensic interviewer for the Dallas Children's Advocacy Center, conducted the forensic interview of J.C on August 7th, 2012. She testified at trial that a child is referred to the center through law enforcement or Child Protective Services after a child has made an outcry to law enforcement of sexual abuse or serious physical abuse. She stated, "The purpose of conducting a forensic interview is one, to gather those details and facts and find out if something has or has not happened to that child. It also makes it so that the child doesn't have to repeat their story over and over again because our interview . . . is video recorded." Biglow testified that J.C. made a "disclosure of abuse" on August 7th, 2012. Biglow stated that J.C. "was able to talk about how it felt to her body . . . She was also able to talk about different body positioning and kind of act out what was told-what was made of her to do." Biglow indicated that J.C. described in graphic detail three instances of sexual abuse involving oral, vaginal, and anal sex. Biglow testified that J.C. said this happened "from ages ten to twelve." Biglow stated that J.C. said the abuse "would happen at least once a month." J.C. was 15 years old at the time she was interviewed by Biglow.
J.C. testified at trial as well, stating that she went to her grandmother's house "a lot" between the ages of ten to twelve. She stated that the first instance of abuse occurred when she was ten, testifying that her uncle came out of his room and told J.C. to go into his room. Then, appellant started touching J.C. on her thighs with his hands. She did not tell anyone about this incident because she "[f]elt like he was gonna hurt [her] sisters" and because the appellant told her not to tell anyone this happened. J.C. testified that on another occasion, when she was eleven years old, the appellant again called her into his room and began to touch her "over the clothes" and touched her breast under her clothes.
J.C. continued her testimony, stating that on other occasions, he touched her "private area." Also, she testified that he touched "the outside" of the private part both over and underneath her clothes. She stated he used his penis to touch the "outside" of her private part "where the poop comes from." At first, J.C. did not remember how many times the appellant used his penis to touch her anus or how old she was at the times this conduct occurred. Later in her testimony, J.C. remembered how many times this happened, and she stated "five to six times." J.C. testified that this happened when she was twelve and thirteen. When asked, "What's the first place he touched with his penis, that you can remember?" J.C. responded "my butt," and stated that she was twelve years old the first time this happened.
J.C. also testified that on other occasions, the appellant put his penis in her mouth. J.C. did not remember how old she was or what grade she was in when this happened However, J.C. testified that she was ten when this conduct started and twelve when this conduct stopped and this type of conduct occurred two to three times.
J.C. described another incident after the appellant picked her up from school one day, and testified that he stopped at a gas station where he told her to "lay down . . . in front of the steering wheel but, like, kind of bent in a way." She testified that her legs were stretched out across the seat and that the appellant was "right in front of [her]." She testified that both of them had their clothes on, and that "he just started touching" her legs with his hands over her clothes.
J.C. testified that between ages ten and twelve, her grandmother lived in four houses and that the conduct she described happened in "two or three" of those houses. She remembered that the appellant put his penis in her mouth at the second house "one or two times." She also remembered that she used her hand to hold the appellant's penis in the second house more than once on different days. She also testified that he "put his penis in her butt" at the second house "five or six times" on different days that were "far apart." She stated that her grandmother lived in the second house for "more than six months," and that she remembered spending the summer between seventh and eighth grade at the second house, and that her grandmother lived there until "like the end of eighth grade." Finally, J.C. testified that "he touched [her] with his body parts, whether it be his hand or his penis," and that this conduct occurred "two or three times a week," from when J.C. was ten years old until she was twelve years old.
After the close of evidence, the court read the jury a charge instructing the jury on the law of continuous sexual abuse, stating that "a person commits the offense of continuous sexual abuse of a child under 14 if he intentionally or knowingly, during a period of 30 days or more in duration, commits two or more acts of sexual abuse and at the time of the commission of each of the acts of sexual abuse, the actor is 17 years of age or older and the victim is a child younger than 14 years of age." The jury returned a verdict of guilty for the offense of continuous sexual abuse of a child under fourteen. The appellant was sentenced by the trial court to thirty-five years imprisonment without parole.
II. Standard of Review
"When reviewing the sufficiency of the evidence, an appellate court considers all of the evidence in the light most favorable to the verdict to determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt." Prechtl v. State, 2015 WL 6751100, at *3 (Tex. App.-Dallas November 5, 2015, no pet.) (citing Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)).We must determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (citing Jackson, 443 U.S. at 319). An appellate court must "defer to the jury's credibility and weight determinations because the jury is the sole judge of the witness' credibility and the weight to be given to their testimony." Prechtl, 2015 WL 6751100, at *3 (citing Jackson, 443 U.S. at 319; Brooks, 323 S.W.3d at 899). We consider all evidence, whether properly or improperly admitted, when reviewing the sufficiency of the evidence. Id.
III. Applicable Law
"A person commits the offense of continuous sexual abuse of a child if the person commits two or more acts of sexual abuse during a period that is thirty or more days in duration and the victim is a child younger than age fourteen and the actor is age seventeen or older." Vasquez v. State, 2013 WL 5614300, at *4 (Tex. App.-Dallas October 14, 2013, no pet.) (mem. op) (summarizing TEX. PENAL CODE ANN. § 21.02(a)). The statute defines "acts of sexual abuse" as including:
(2) indecency with a child under Section 21.11(a)(1), if the actor committed the offense in a manner other than by touching, including touching through clothing, the breast of a child;TEX. PENAL CODE ANN § 21.02(c)(2)(4). In a jury trial, "members of the jury are not required to agree unanimously on which specific acts of sexual abuse were committed by the appellant or the exact date when those acts were committed." Id. at § 21.02(d). Instead, the "jury must agree unanimously that the appellant, during a period that is 30 or more days in duration, committed two or more acts of sexual assault." Id.
(3) sexual assault under Section 22.011;
(4) aggravated sexual assault under Section 22.021[.]
The testimony of a child victim alone is sufficient to support a conviction for continuous sexual abuse of a child. TEX. CODE CRIM. PROC. ANN. art. 38.07 (West Supp. 2012). Further, the penal code does not require that a child victim be specific about the dates the abuse occurred. Vasquez, 2013 WL 5614300 at *5 (citing Dixon v. State, 201 S.W.3d 731, 736 (Tex. Crim. App. 2006)). This is because "it is not often that a child knows, even within a few days, the date that she was sexually assaulted." Williams v. State, 305 S.W.3d 886, 890 (Tex. App.-Texarkana 2010, no pet.).
IV. Application of the Law to the Facts
J.C. testified that she went to stay with her grandmother "a lot" and that most of the abuse occurred in the second house where her grandmother lived for at least nine months. J.C. said acts of sexual abuse occurred up to two or three times a week from the time that J.C. was ten years old to the time she was twelve years old. Also, J.C. identified specific instances of sexual conduct and stated that these instances occurred more than once on days that were "far apart." Texas law does not require J.C. to identify the exact dates on which this conduct occurred, nor is she required to identify how many days passed between instances of sexual abuse. Williams, 305 S.W.3d at 890 (evidence sufficient to sustain conviction where child victim testified that abuse occurred "more than twice," and "just about every time that I went out there to stay with grandmother," which evidence showed happened regularly); Vasquez, 2013 WL 5614300, at *4 (evidence sufficient to sustain conviction where child victim testified "the abuse happened 'a lot,' happened more often after the family moved to Allen in 2003, and continued into her ninth grade year, which was after she turned fourteen.").
Having reviewed all the evidence in the light most favorable to the verdict, we conclude that the jury was rationally justified in deciding that two or more instances of sexual abuse occurred over a period that was thirty days or longer and the evidence is legally sufficient to support appellant's conviction.
V. Conclusion
The judgment of the trial court is affirmed.
/Douglas S. Lang/
DOUGLAS S. LANG
JUSTICE Do Not Publish
TEX. R. APP. P. 47
141400F.U05
JUDGMENT
On Appeal from the Criminal District Court No. 3, Dallas County, Texas
Trial Court Cause No. F-1358294-J.
Opinion delivered by Justice Lang. Chief Justice Wright and Justice Brown participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered this 27th day of January, 2016.