Nos. 14-06-00209-CR, 14-06-00210-CR
Opinion filed May 17, 2007. DO NOT PUBLISH. TEX. R. APP. P. 47.2(b).
On Appeal from the 262nd District Court Harris County, Texas, Trial Court Cause Nos. 1035824 1035825.
Panel consists of Justices YATES, ANDERSON, and HUDSON.
JOHN S. ANDERSON, Justice.
In a single criminal action, appellant, Ernesto David Cirlos, was found guilty by a jury of aggravated sexual assault of a child and indecency with a child .See TEX. PEN. CODE ANN. §§ 21.11(a)(1) 22.021 (Vernon 2003). Appellant was sentenced by the jury to forty years' confinement in the Institutional Division of the Texas Department of Criminal Justice for the aggravated sexual assault conviction and fifteen years' confinement for the indecency with a child conviction. The trial court ordered the sentences to run consecutively. Appellant now challenges both convictions on appeal. We affirm.
The charges grew out of a single criminal episode that involved two children. The aggravated sexual assault charge was brought in cause number 1035825, while the indecency with a child charge was brought in cause number 1035824.
Appellant was also fined $10,000 in each case.
FACTUAL AND PROCEDURAL BACKGROUND
In the Spring of 2002, A. R. was a quiet, shy eight year old girl. At that time, A. R.'s best friend was N. J., who was a year older. The girls were neighbors in a north Houston trailer park for approximately seven or eight months. Appellant was also a resident of that trailer park. Appellant and A. R.'s mother agreed to swap vehicles. When the vehicle appellant swapped with A. R.'s mother was repossessed, appellant agreed to pay A. R.'s mother money. In the spring of 2002 A.R.'s mother asked A. R. to go to appellant's trailer and ask if appellant had the money he owed her for the vehicle. Both A. R. and N. J. testified regarding the incident. A. R. testified that on the way to appellant's trailer, she saw N. J. and asked N. J. to accompany her on the errand. Both girls knocked on appellant's door, which appellant opened. When A. R. asked about the money, appellant told her he had it, but it was in his room. Appellant had the girls come with him to his bedroom at the far end of the trailer. Once they entered the bedroom, appellant grabbed both girls around their waists and threw them on the bed. Appellant's clothes were off and he told the girls to remove their clothing. A. R. complied because appellant threatened to kill her family if she did not. N. J. also had her pants and underwear off. A. R. saw appellant remove a circular piece of "plastic" from a package, which appellant placed on his "private part," which A. R. described as looking like a "cucumber." Appellant then placed his private part repeatedly in A. R.'s sexual organ, causing her pain. A. R. testified appellant eventually stopped and she noticed a "white liquid" inside the "plastic" as appellant took it off. Appellant also placed his mouth on A. R.'s and N. J.'s "private parts" and his hand on N. J.'s private parts". Appellant then hit A. R. on the cheek. A. R. testified that the blow hurt, but did not cause a bruise. Both girls were crying and appellant told them to "shut up." Someone then knocked on the front door of appellant's trailer and appellant told the girls to get dressed. Appellant then placed the girls in the back yard of his trailer, told them to stay there, and again threatened to kill their families. At N. J.'s urging, the girls fled from appellant's back yard. A. R. went straight home but she wiped her tears before she saw her mother. Once she entered their trailer, she went straight to the restroom and did not discuss the abuse because she believed appellant's threats. In the restroom, A. R. noticed blood in her panties as she continued to cry. A. R. did not disclose the attack until April 2005. A. R.'s sister was teasing A. R. that she might be pregnant because there were "a lot of cats around." A. R., fearing she might be pregnant because of the incident years earlier, finally told her mother about the assault. A. R.'s mother called the police and took A. R. to Texas Children's Hospital. Dr. Donna Mendez testified about her examination of A. R. Dr. Mendez testified the physical examination revealed no evidence of sexual trauma. Dr. Mendez also testified such a finding is not unusual when the physical examination is so far removed from the assault. N. J. did not disclose her knowledge about the incident until approached by the Houston Police officer investigating A. R.'s complaint. During the trial, A. R.'s mother, Lydia, testified regarding A. R.'s reactions to viewing a photo array of appellant and seeing appellant in the courtroom the morning the trial started. Lydia testified A. R. appeared upset and she "freaked a little bit" when she viewed the photo array. Over appellant's objection, Lydia testified that when A. R. saw appellant in the courtroom the day the trial commenced, A. R. was scared, did not want to get up from her chair, and refused to look at appellant. In addition to testifying about alleged long term sexual abuse by appellant, N. J. testified regarding the events underlying this appeal. N. J. remembered an incident with A. R. that occurred in appellant's trailer. N. J. testified appellant asked them if they wanted to play hide and seek. The two girls agreed and appellant turned off the lights. The girls then hid in appellant's closet where appellant discovered them. N. J. testified that appellant then "picked [them] up and threw [them] to the bed." N. J. then testified that appellant started tickling them and then got on top of N. J. Appellant then got on top of A. R. N.J. "jumped on [appellant] and told him to get off" of A. R. Appellant then moved and proceeded to touch N. J. on her sexual organ with his hand and then touched both complainants" sexual organs with his mouth. N. J. testified they eventually ran outside. In cause number 1035825, the jury found appellant guilty of aggravated sexual assault of a child and assessed appellant's punishment at forty years' confinement and a $10,000 fine. The jury also found appellant guilty of indecency with a child in cause number 1035824 and assessed punishment at fifteen years' confinement and assessed a fine of $10,000. The State filed a motion for appellant's sentences to run consecutively pursuant to Texas Penal Code Section 3.03(b)(2). Appellant objected to serving the sentences consecutively as it would violate his state and federal constitutional rights to a trial by jury and protection against cruel and unusual punishment. The trial court overruled appellant's objections, granted the State's motion, and ordered that appellant would not begin serving his sentence on cause number 1035825, the aggravated sexual assault charge, until he had completed serving his sentence on cause number 1035824, the indecency with a minor charge. This appeal followed. DISCUSSION
Appellant filed a separate appeal for each conviction. However, the first three issues are identical in both appeals. In appellate cause number 14-06-00210-CR, trial court cause number 1035825, the aggravated sexual assault of a child conviction, appellant raises a fourth issue not found in his other brief. We address the common issues in both appeals together. A. Is the Evidence Legally Sufficient to Support Appellant's Convictions?
In his first issue in both appeals, appellant argues the evidence is legally insufficient as, in appellant's view, the two complainants' testimony incriminating him was not credible. Appellant also asserts this lack of credibility is reinforced by the lack of evidence, including physical evidence, corroborating the girls' testimony regarding the incident. While recognizing the general rule that appellate courts do not review the credibility of witnesses, appellant asks this court to set this well-established rule aside and engage in a re-evaluation of the witnesses' credibility. We decline this invitation. 1. The Standard of Review In a legal sufficiency review, we view all the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Salinas v. State, 163 S.W.3d 734, 737 (Tex.Crim.App. 2005). The jury, as the sole judge of the credibility of the witnesses, is free to believe or disbelieve all or part of a witness's testimony. Jones v. State, 984 S.W.2d 254, 257 (Tex.Crim.App. 1998). This standard gives full play to the responsibility of the trier of fact to resolve any conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319, 99 S.Ct at 2789. Reconciliation of conflicts in the evidence is within the jury's discretion, and such conflicts alone will not call for reversal if there is enough credible evidence to support a conviction. Losada v. State, 721 S.W.2d 305, 309 (Tex.Crim.App. 1986). An appellate court may not re-evaluate the weight and credibility of the evidence produced at trial and in so doing substitute its judgment for that of the fact finder. King v. State, 29 S.W.3d 556, 562 (Tex.Crim.App. 2000). Inconsistencies in the evidence are resolved in favor of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex.Crim.App. 2000). Through a legal sufficiency review, we ensure only that the jury reached a rational decision. Muniz v. State, 851 S.W.2d 238, 246 (Tex.Crim.App. 1993); Harris v. State, 164 S.W.3d 775, 784 (Tex.App.-Houston [14th Dist.] 2005, pet. ref'd). 2. The Evidence is Legally Sufficient Here, appellant was charged with two offenses: aggravated sexual assault of a child and indecency with a child. In a legal sufficiency review, we determine only whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Cardenas v. State, 30 S.W.3d 384, 389 (Tex.Crim.App. 2000). To establish the offense of aggravated sexual assault of a child, the State must prove appellant intentionally or knowingly caused the penetration of the sexual organ of a child by any means, and the victim was younger than fourteen years of age. TEX. PENAL CODE ANN. §§ 22.021(a)(1)(B)(i), 22.021(a)(2)(B) (Vernon 2003). To establish the offense of indecency with a child, the State must prove appellant engaged in sexual contact with a child younger than seventeen years of age and that appellant is not the person's spouse. TEX. PENAL CODE ANN. § 21.11(a)(1). The State presented two complainants who witnessed the same event. A. R. and N. J. experienced appellant's sexual abuse together and their testimony, laid out above, was consistent about the incident. This evidence, the testimony of the complainants describing the event, standing alone, is sufficient to support appellant's convictions.See Lane v. State, 174 S.W.3d 376, 386 (Tex.App.-Houston [14th Dist.] 2005, pet. ref'd) (concluding that, because the complainant was able to describe the sexual contact, the location where the contact occurred, and her statements were consistent with the statements she made at the Children's Assessment Center, her testimony was sufficient to support the conviction); see also Jensen v. State, 66 S.W.3d 528, 534 (Tex.App.-Houston [14th Dist.] 2002, pet. ref'd) ("The testimony of a victim, standing alone, even when the victim is a child is sufficient to support the conviction for sexual assault."). Appellant also argues the lack of physical evidence corroborating A. R.'s allegation makes the evidence supporting the aggravated sexual assault charge legally insufficient. However, physical evidence is not required when the "complainant provided ample testimony to show a sexual assault occurred." Tinker v. State, 148 S.W.3d 666, 669 (Tex.App.-Houston [14th Dist.] 2004, no pet.). Here, as detailed above, A. R. provided ample testimony showing a sexual assault occurred and N. J.'s testimony establishes appellant made sexual contact with her. The jury is the exclusive judge of the credibility of the witnesses and the weight to be given their testimony. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex.Crim.App. 2000). A rational jury could have concluded that the complainants' testimony alone established the essential elements of the two charges. Therefore, we hold the evidence is legally sufficient to establish appellant's guilt. We overrule appellant's first issue. B. Is the Evidence Factually Sufficient to Support Appellant's Convictions?
In his second issue, appellant argues the evidence is factually insufficient because the complainants' testimony incriminating him is not credible. In support of this contention, appellant points to the following evidence: (1) the testimony regarding the lack of screaming or yelling emanating from appellant's trailer; (2) A. R.'s mother's testimony that she did not notice that A. R. had any bruises on her face or that her clothes were messed up when she returned from appellant's trailer after asking about the money; (3) the lack of physical evidence supporting complainants' testimony; and (5) A. R.'s delay in reporting the assault, was, according to appellant, "inherently suspicious." 1. The Standard of Review In a factual sufficiency review, we consider all the evidence in a neutral light. Prible v. State, 175 S.W.3d 724, 730 — 31 (Tex.Crim.App. 2005). The evidence may be factually insufficient in two ways. Id. First, when considered by itself, evidence supporting the verdict may be so weak the verdict is clearly wrong and manifestly unjust. Id. at 731. Second, where the evidence both supports and contradicts the verdict, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met. Id. Our evaluation should not intrude upon the fact finder's role as the sole judge of the weight and credibility given to any witness's testimony. Cain v. State, 958 S.W.2d 404, 408 — 09 (Tex.Crim.App. 1997). In addition, the jury may believe or disbelieve all or part of any witness's testimony. Jones v. State, 984 S.W.2d 254, 257 (Tex.Crim.App. 1998). Reconciliation of any conflicts in the evidence falls within the exclusive province of the jury. Heiselbetz v. State, 906 S.W.2d 500, 504 (Tex.Crim.App. 1995). Finally, our analysis must consider the evidence appellant claims is most important in allegedly undermining the jury's verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App. 2003). 2. The Evidence is Factually Sufficient Appellant argues the evidence is factually insufficient because the complainants' testimony recounting his unlawful acts is not credible. The jury is the exclusive judge of the credibility of the witnesses and the weight to be given their testimony. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000). The jury is free to believe any or all of the testimony of the State's witnesses. Cole v. State, 194 S.W.3d 538, 551 (Tex.App.-Houston [1st Dist.] 2006, pet. ref'd). If there is evidence that establishes guilt beyond a reasonable doubt and the jury believes that evidence, we may not reverse the conviction unless it is manifestly unjust. Prible, 175 S.W.3d at 731. The jury's decision is not manifestly unjust merely because the jury resolved conflicting views of the evidence in favor of the State. Cain, 958 S.W.2d at 410. Here, the jury heard the complainants' testimony recounting appellant's acts, which is detailed above, and determined appellant was guilty of aggravated sexual assault of a child and indecency with a child. The complainants' testimony, when viewed in a neutral light and standing by itself, is sufficient evidence to establish appellant's guilt beyond a reasonable doubt. See Lane, 174 S.W.3d at 386; see also Jensen, 66 S.W.3d at 534. Accordingly, the jury's guilty verdicts are not clearly wrong and manifestly unjust. The allegedly contrary evidence pointed out by appellant does not change this result. Initially, appellant points to the lack of physical evidence of a sexual assault on A. R. Appellant also points to testimony by A. R.'s mother and appellant's brother regarding the lack of screaming and yelling emanating from appellant's trailer. A. R.'s mother testified (1) that her trailer was approximately thirty feet from appellant's trailer; (2) you would be able to hear screaming and yelling coming from inside appellant's trailer in her trailer; and (3) she did not hear any screaming or yelling from appellant's trailer the day she sent A. R. to appellant's trailer. Appellant's brother, Anthony Cirlos, testified (1) he lived approximately twenty feet from appellant's trailer; (2) that he could see appellant's trailer as well as the people coming and going from appellant's trailer from his residence; (3) there were usually people present at his residence both day and night; and (4) if there was screaming and yelling emanating from appellant's trailer it could be heard in his residence. Appellant next points our attention to A. R.'s mother's testimony that she did not notice that A. R. had any bruises on her face or that her clothes were messed up when she returned from appellant's trailer after asking about the money. Finally, appellant emphasizes A. R.'s delay in reporting the sexual assault. The jury heard this evidence, considered the inconsistencies, if any, and still determined that appellant was guilty of aggravated sexual assault of a child and indecency with a child. Considering all of the evidence in the case in a neutral light, and deferring to the jury's role as the sole judge of the weight and credibility given to the witnesses' testimony, we cannot conclude that the contrary evidence pointed out by appellant is strong enough that the beyond-a-reasonable-doubt standard could not have been met. As the evidence is factually sufficient to support appellant's conviction, we overrule appellant's second issue. C. Did the Trial Court Abuse Its Discretion When it Admitted Testimony Regarding A. R.'s Fear of Appellant?
In his third issue, appellant argues the trial court abused its discretion when it allowed the State to present testimony by A. R.'s mother that A. R. acted afraid of appellant when she saw him in court prior to the start of the trial. Appellant does not argue on appeal that the contested evidence is not relevant, but instead contends it was unfairly prejudicial and should have been excluded under Rule 403 of the Texas Rules of Evidence. TEX. R. EVID. 403. 1. The Standard of Review A trial court's ruling on a Rule 403 objection will not be overturned absent an abuse of discretion. State v. Mechler, 153 S.W.3d 435, 439 (Tex.Crim.App. 2005). The rationale for this broad discretion is twofold. First, Rule 403's language that relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice displays the drafters' intent to vest the trial court with substantial discretion. Id. at 439. Second, the trial court is in a superior position to evaluate the impact of the evidence than an appellate court reviewing only a transcript. See id.; Montgomery v. State, 810 S.W.3d 372, 378 — 79 (Tex.Crim.App. 1990). Unlike the trial court, an appellate court cannot weigh on appeal the intonation and the demeanor of the witnesses preceding the testimony in issue, nor can an appellate court determine the emotional reaction of the jury to other pieces of evidence or judge the success of impeachment by cross-examination through observation of the jurors. Montgomery, 810 S.W.3d at 379. The test for whether a trial court abused its discretion is whether the action was arbitrary or unreasonable, and we must uphold the admissibility decision when it is within the zone of reasonable disagreement. Mechler, 153 S.W.3d at 439 — 40. The opponent of the evidence has the burden to demonstrate that the prejudicial effect substantially outweighs the probative value of the evidence. Montgomery, 810 S.W.2d at 377. 2. Application of Rule 403 Under Texas Rule of Evidence 401, evidence is relevant if it has any tendency to make the existence of any fact of consequence to the determination of the action more or less probable than it would be without the evidence. TEX. R. EVID. 401. There is a presumption of admissibility of relevant evidence. See TEX. R. EVID. 402; Erazo v. State, 144 S.W.3d 487, 499 (Tex.Crim.App. 2004). Relevant evidence may still be excluded by the trial court under Rule 403 "if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence." TEX. R. EVID. 403. When a trial court balances the probative value of the evidence against the danger of unfair prejudice, a presumption exists that favors the evidence's probative value. Feldman v. State, 71 S.W.3d 738, 754 — 55 (Tex.Crim.App. 2002). The relevant criteria for determining whether the prejudice of admitting the evidence substantially outweighs the probative value include the following: (1) the probative value of the evidence; (2) the potential the evidence has to impress the jury in an irrational but nevertheless indelible way; (3) the time needed to develop the evidence; and (4) the proponent's need for the evidence to prove a fact of consequence. Mechler, 153 S.W.3d at 440. If the record reveals one or more of these considerations led to a risk that the probative value of the evidence was substantially outweighed by the danger of unfair prejudice, then an appellate court should conclude the trial court abused its discretion in admitting the evidence. See Reese v. State, 33 S.W.3d 238, 241 (Tex.Crim.App. 2000). a. Probative Value We start with an examination of the probative value of the evidence. The State asserts A. R.'s mother's testimony that A. R. was afraid when she saw appellant the morning the trial began was introduced to rebut appellant's defensive theory that the complainants and A. R.'s mother recently fabricated the allegations of sexual abuse as revenge for appellant's dishonest conduct in the aborted automobile swap, as well as appellant's paying N. J.'s mother for sex. The State argues appellant's opening statement as well as his questioning of Officer Joseph Roscoe, the investigating officer from the Houston Police Department, about A. R.'s lack of understanding of sexual intercourse and her emotional reaction during her examination of a photo array of appellant, all suggesting the complainants were lying, opened the door to admissibility of A. R.'s mother's testimony. Because relevant evidence may be admitted to rebut a defensive theory, we agree with the State that A. R.'s mother's testimony is highly probative. See Moses v. State, 105 S.W.3d 622, 626 (Tex.Crim.App. 2003) (stating that rebuttal of a defensive theory is one of the permissible purposes for which relevant evidence may be admitted under Texas Rule of Evidence 404(b)). b. Indelible Impression The second criteria used to determine whether the prejudice of admitting the evidence substantially outweighed the probative value is whether the evidence has the potential to impress the jury in an irrational but nevertheless indelible way. Rule 403 does not exclude all prejudicial evidence, if it did, all of the State's evidence would be excluded as that is the purpose behind all of the State's evidence. Instead, Rule 403 focuses only on the danger of unfair prejudice and the tendency to tempt the jury into finding guilt on grounds apart from proof of the offense charged. Mechler, 153 S.W.3d at 440. While the testimony was certainly prejudicial to appellant, it directly rebutted appellant's defensive theory that the charges were recently fabricated for revenge against appellant for his prior actions. In addition, A. R. testified during trial immediately following her mother's testimony. In his brief, appellant asserts that during her testimony, A. R. did not exhibit any fear. As the jury had an opportunity to view A. R. on the witness stand, we find that this contested testimony does not have a great potential to impress the jury in an irrational way and would not tempt the jury into a finding of guilt on improper grounds. c. Time to Develop The third criteria used to determine whether the prejudice of admitting the evidence substantially outweighs the probative value is the amount of time needed to develop the contested evidence, during which the jury will be distracted from the indicted offense. Id. at 441. The time involved in the disputed testimony was short, encompassing just over two pages in the reporter's record of the trial, and was thus unlikely to distract the jury from considering the charged offense. We find that this factor does not weigh against admitting the evidence. d. The Need for the Evidence The last factor used to determine whether the prejudice in admitting the evidence substantially outweighs the probative value focuses on the proponent's need for the evidence to prove a fact of consequence. This factor encompasses whether the proponent has other evidence establishing this fact and whether this fact is related to a disputed issue. Id. The contested testimony was certainly related to a disputed issue: did the complainants and A. R.'s mother recently fabricate the allegations against appellant. The State also demonstrated a need for the evidence: to rebut appellant's recent fabrication allegations. It is a closer call whether the State had other evidence addressing appellant's theory that the allegations were a recent fabrication thus mitigating their need for the contested testimony by A. R.'s mother. A. R.'s mother and appellant both testified that the van transaction situation had been resolved long before the allegations were made against appellant. However, on cross-examination, A. R.'s mother also testified that she was not happy with appellant when the van was repossessed and that she felt she had been taken advantage of by appellant. Faced with this conflicting evidence, we hold that the State needed the contested testimony to rebut appellant's defensive theory that the allegations against appellant had been recently fabricated. Evaluating the above four factors and balancing the prejudicial nature of the evidence against its probative value, we conclude the probative value of the evidence is not substantially outweighed by its prejudicial effect. Accordingly, the trial court did not abuse its discretion by allowing A. R.'s mother to describe A. R.'s emotional reaction to seeing appellant the morning the trial started. Therefore, we overrule appellant's third issue on appeal. D. Did the Trial Court Err When it Cumulated Appellant's Sentences Without Presenting a Special Issue to the Jury?
In his appeal from his aggravated sexual assault of a child conviction, appellate cause number 14-06-00210-CR, appellant raises a fourth issue. Appellant argues the trial court violated his constitutional right to a jury trial when it cumulated his sentence for aggravated sexual assault of a child with his sentence for indecency with a child without submitting the issue to the jury. In Barrow v. State, the Court of Criminal Appeals recently addressed this issue under almost identical facts. Barrow v. State, 207 S.W.3d 377, 379 — 80 (Tex.Crim.App. 2006). The Court of Criminal Appeals held "that placing the decision whether to run multiple sentences concurrently or consecutively with the trial court instead of the jury does not violate the Sixth Amendment right to a jury trial." Id. at 380. Accordingly, we overrule appellant's fourth issue on appeal. CONCLUSION
Having overruled each of appellant's issues on appeal, we affirm the judgment of the trial court.