No. 05-07-01134-CR
Opinion Filed December 9, 2008. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the 204th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F04-72096-UQ.
Before Justices WRIGHT, O'NEILL, and LANG.
Opinion By Justice O'NEILL.
A jury convicted Eduardo Alberto Rivera of indecency with a child and assessed punishment at five years' imprisonment, probated for ten years. In two issues, appellant contends the evidence is legally and factually insufficient to sustain the jury's verdict. We affirm the trial court's judgment.
Background
S.L., the complainant, testified her mother and father are divorced, and appellant is her mother's boyfriend. On a Thursday evening in April 2004, S.L. went to appellant's apartment with her mother, who was helping appellant move. S.L. was ten years old. While Mother helped appellant pack, S.L. sat on a futon mattress in the living room watching television. S.L. fell asleep. She awoke during the night when she felt appellant's hand inside her shirt rubbing her chest. Appellant was laying next to S.L. on the futon, and Mother was laying on the other side of appellant. S.L. did not say anything at the time because she went back to sleep. When she awoke in the morning, S.L. did not say anything to Mother because she did not think Mother would believe her. S.L. went to school that Friday morning. After Mother picked S.L. up from school, she again took S.L. with her to appellant's apartment. While en route, S.L. told Mother that appellant touched her chest, and asked Mother not to talk with appellant about it while S.L. was there. S.L. also asked Mother that if they stayed overnight again, could Mother sleep in the middle between S.L. and appellant. At appellant's apartment, S.L. sat on the futon mattress while Mother helped appellant, and again fell asleep. S.L. woke up in the early morning hours and found appellant had his hand inside her underwear touching her vagina. Appellant was laying in the middle of the futon next to S.L. Mother was on the other side of appellant. S.L. said appellant's hand touched her vagina. She thought appellant might be asleep because when she tried to move, appellant also moved with her. S.L. again went back to sleep without saying anything. S.L. testified she did not say anything to anyone the next morning because she was too embarrassed and afraid Mother would not believe her. One week later, S.L. told her sister J.L. about appellant touching her vagina. After Father found out, he took custody of both S.L. and J.L. Father did not allow S.L. to visit Mother, who continued dating appellant. S.L. thought Mother did not believe her allegations because Mother never stopped dating appellant. Eventually, Father allowed S.L. to visit Mother, assuming Mother was no longer seeing appellant. Appellant was usually at Mother's house when S.L. visited. Sometime after Christmas in 2004, S.L. visited Mother. Appellant was also there. During her visit, S.L. watched television while sitting on Mother's bed. The television was located in Mother's bedroom. Mother and appellant were also watching television with S.L. When Mother went into the kitchen to cook, appellant put his hands "in the front and back" of S.L.'s pants and touched S.L.'s vagina. S.L. did not tell Mother. S.L. said she did not recall how many times appellant touched her vagina, but she visited Mother every other weekend and appellant was usually there. Mother was always out of the room when appellant touched S.L.'s vagina. S.L. never told anyone that appellant had started touching her again because she was afraid Father would no longer let her visit Mother. But, in September 2006, at the beginning of her seventh-grade school year, S.L. told her sister that appellant was touching her again. S.L. also told Father, who contacted the police. On cross-examination, S.L. testified she talked with someone at the Dallas Children's Advocacy Center (DCAC) on two occasions. The first interview occurred on April 7, 2004, after the initial incidents, and the second occurred on September 13, 2005, after she disclosed the touching had started again. S.L. could not recall exactly what she said in those interviews, but admitted her memory would have been better at that time rather than two years later at trial. J.L. testified she and S.L. lived with Mother after her parents divorced, but also stayed with Father every other weekend. J.L. knew appellant was Mother's boyfriend. S.L. said appellant had "touched" her in April 2004. J.L., who was alone at home with S.L., called one of Mother's friends for advice because she wanted to talk to an unbiased person outside of the family, and the friend was a child psychologist. The friend called Father, who immediately went to Mother's house and picked up J.L. and S.L. J.L. testified she did not know Mother was still dating appellant because she did not visit Mother with S.L. due to after school activities and wanting to see her friends. Later, right before S.L. entered the seventh grade, J.L. learned that appellant had been touching S.L. again. S.L. was hesitant to talk about the incidents because she did not want to jeopardize her visits with Mother. After talking with S.L. about the new allegations, J.L. immediately told Father. J.L. said she never talked to Mother about the allegations because Mother did not want to talk about it. Father testified he had never met appellant, but knew appellant's name and that appellant was dating Mother. In 2004, Mother and Father had shared custody of their daughters, who lived with Mother during the week and spent every other weekend with Father. In April 2004, Father found out that appellant had been molesting S.L. Father contacted child protective services (CPS) and took S.L. to the DCAC for an interview. Father restricted his daughters' contact with Mother, but eventually relaxed it because S.L. wanted to see Mother. At the time S.L. began visiting Mother, Father was not aware Mother had not stopped dating appellant. In September 2005, Father found out appellant was molesting S.L. again. Father talked with S.L., who said appellant was still "touching her." Father contacted the police, and took S.L. to the DCAC for another interview. Mother testified she is still dating appellant, and has been since January 2004. At the end of March 2004, Mother helped appellant move from his apartment. She took S.L. with her because S.L. was too young to be home alone, and J.L. had other activities or was staying with a friend. Mother went to appellant's apartment after work on Thursday and Friday and stayed overnight both times. Each night, the events were the same: S.L. sat on a futon mattress placed on the floor in front of the television while Mother helped appellant. S.L. eventually fell asleep. After Mother and appellant finished packing for the evening, they also slept on the futon mattress. Mother laid in the middle of the futon, S.L. laid to her right, and appellant laid to her left. No one got up during the night, and everyone was still in the same position when Mother awoke in the morning. Mother said S.L. never acted like she was scared of appellant, was always friendly towards him, and never indicated she did not want to go to appellant's apartment with Mother. S.L. even gave appellant a hug goodbye when they left appellant's apartment early Saturday morning. The next day, on Sunday, Father called Mother about the allegations S.L. made against appellant. Father would not let Mother talk to S.L. Mother testified S.L. was not telling the truth about appellant due to jealousy issues and wanting Mother's attention. Mother believes S.L. made up the entire story about appellant touching her because S.L. read a similar story in a book. Appellant denied touching S.L.'s vagina or ever being alone in a room with S.L. In April 2004, Mother helped him pack up his apartment. S.L. came with Mother on two evenings, a Thursday and Friday. Because the bedroom furniture was already packed, appellant had a futon mattress on the living room floor. S.L. sat on the futon watching television while appellant and Mother packed. S.L. fell asleep. After they finished packing each night, Mother and appellant also slept on the futon. Mother slept in between S.L. and appellant. Appellant did not get up at any time during the night, and was in the same spot when he awoke the next morning. Mother and S.L. were still in their same positions on the futon. Appellant said he did not touch S.L.'s "breasts, vaginal area, or bottom" on either night. On Sunday, appellant learned about the allegations S.L. made against him from Mother. Appellant turned himself in to the police soon thereafter. After he was released from jail, appellant moved to another city. Appellant and Mother continued dating, and appellant visited Mother's house often. Appellant testified he and Mother often watched television in Mother's bedroom with S.L., but appellant was never alone in the room with S.L. There were two occasions when S.L. visited Mother unexpectedly while appellant was also there. Each time, appellant stayed about ten minutes after S.L. arrived and then left. Applicable Law
In reviewing a challenge to the legal sufficiency of the evidence, we examine the evidence in the light most favorable to the judgment and determine whether 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); Lane v. State, 151 S.W.3d 188, 191-92 (Tex.Crim.App. 2004). The fact-finder is the exclusive judge of the witnesses' credibility and the weight to be given to their testimony. Harvey v. State, 135 S.W.3d 712, 717 (Tex.App.-Dallas 2003, no pet.). In a factual sufficiency review, we view all of the evidence in a neutral light to determine whether the fact-finder's verdict of guilt was rationally justified. See Roberts v. State, 220 S.W.3d 521, 524 (Tex.Crim.App.); Watson v. State, 204 S.W.3d 404, 415 (Tex.Crim.App. 2006); see also Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App. 2006). Unless the record clearly reveals a different result is appropriate, we must defer to the fact-finder's determination concerning what weight to be given to contradictory testimony. Lancon v. State, 253 S.W.3d 699, 705 (Tex.Crim.App. 2008). To obtain a conviction for indecency with a child, the State was required to prove beyond a reasonable doubt that appellant intentionally and knowingly engaged in sexual contact with S.L., a child younger than seventeen years and not appellant's spouse, by contact between appellant's hand and S.L.'s genitals, with the intent to arouse and gratify his sexual desires. See Tex. Penal Code Ann. § 21.11(a) (Vernon 2003). The testimony of a child victim alone is sufficient to support a conviction. See Tear v. State, 74 S.W.3d 555, 560 (Tex.App.-Dallas 2002, pet. ref'd). Discussion
Appellant contends the evidence is legally and factually insufficient because S.L.'s testimony conflicted with S.L.'s prior statements, it was physically impossible for him to have committed the offense because Mother testified she never left him alone with S.L., and his testimony was more credible than S.L.'s testimony. Appellant points out the jury chose to acquit him in a second case involving S.L. The State responds that the evidence is legally and factually sufficient to support the conviction. Courts give wide latitude to the testimony of child victims of sexual abuse. See Villalon v. State, 791 S.W.2d 130, 133 (Tex.Crim.App. 1990) (en banc). The jury heard S.L.'s testimony describing appellant touching her vagina. See id. The jury also heard the testimony of Mother and appellant denying S.L.'s allegations. The jury is best positioned to evaluate the credibility of the conflicting testimony, and we must afford due deference to its determination. See Marshall, 210 S.W.3d at 625. Appellant essentially argues that because S.L. could not recall her prior statements contained in the forensic interviews, and Mother testified appellant was never alone with S.L., the jury should have believed appellant's testimony over that of S.L. It was the jury's function to resolve any conflicts in the evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Johnson, 23 S.W.3d at 9. The jury may choose to believe some witnesses and disbelieve others. See Margraves v. State, 34 S.W.3d 912, 919 (Tex.Crim.App. 2000). Viewed under the proper standards, we conclude the evidence is legally and factually sufficient to support the jury's verdict. See Roberts, 220 S.W.3d at 524; Tear, 74 S.W.3d at 560. We resolve appellant's two issues against him. We affirm the trial court's judgment.