Nos. 05-09-01042-CR, 05-09-01043-CR
Opinion Filed March 15, 2011. DO NOT PUBLISH. Tex. R. App. P. 47.2.
On Appeal from the 219th Judicial District Court, Collin County, Texas, Trial Court Cause Nos. 219-81005-08 and 219-81460-08.
Before Justices RICHTER, LANG and MYERS.
Opinion By Justice LANG.
Appellant Eynel Guzman appeals his convictions for aggravated sexual assault of a child and four counts of indecency with a child. After finding him guilty, the trial court assessed punishment at 25 years imprisonment for the aggravated sexual assault conviction and 15 years imprisonment for each of the indecency counts. All sentences are to run concurrently. Guzman raises two issues on appeal arguing: (1) as to the aggravated sexual assault case, the evidence is legally and factually insufficient to prove Guzman committed aggravated sexual assault due to a fatal variance in the manner and means plead in the indictment and the evidence presented at trial, and (2) the trial court erred by failing to try in a separate hearing the issue of punishment for both cases. We decide against appellant on both issues. The trial court's judgments are affirmed.
I.FACTUAL AND PROCEDURAL BACKGROUND
The indictment for aggravated sexual assault committed against N.D. states "Enynel Guzman . . . on or about the 1st day of February 2008 . . . did then and there . . . intentionally and knowingly cause the penetration of the female sexual organ of [N.D.], a child then younger than fourteen (14) years of age and not the spouse of the defendant, by means of defendant's finger[.]" The record reflects, N.D. was a seven year old child at the time of the alleged incident. At the time of trial, N.D. was nine years old and would soon enter third grade. N.D. testified Guzman touched her on her "bottom" or "privacies" where she goes either "number one or number two." N.D. testified "[Guzman] got his finger and poked me inside of my bottom." She said she started bleeding as a result of that contact. M.P., N.D.'s cousin, testified when they were both in the bathroom, she saw N.D. bleeding. N.D. testified that when Guzman touched her ". . . there was pain." Guzman admitted to police he touched "[M.P.]'s cousin" (whose name he said he cannot remember) on the inside of her panties. During N.D.'s forensic interview and at trial, N.D. demonstrated what Guzman did with his finger by poking her own finger into the opening on the top of a "kleenex box." Also, during her forensic interview, N.D. pointed between her legs to her female sexual organ in response to a question of where Guzman "poke[d]" her. During N.D.'s forensic interview, she marked the vaginal area on a drawing where Guzman touched her and she circled a buttocks indicating where Guzman spanked her. Guzman's brother testified Guzman is "an exemplary brother," "hard-working, honest [and] has a good heart. He's a nice man." Further he said Guzman "has always been a great father" and "has always supported his children." However, he admitted to having no personal knowledge of the incidents alleged in these cases. After the trial court determined guilt, the trial court immediately pronounced the sentences. IILEGAL SUFFICIENCY FATAL VARIANCE
In his first issue, Guzman argues the State failed to provide legally or factually sufficient evidence due to the fatal variance between the allegation in the indictment and the proof at trial. The indictment alleged Guzman "intentionally and knowingly cause[d] the penetration of the female sexual organ" of N.D. According to Guzman, the proof at trial showed Guzman only touched N.D.'s female sexual organ and penetrated N.D.'s anus. Consequently, Guzman asserts he was deprived of adequate notice of the charges against him, and the fact that Guzman was found guilty in this aggravated sexual assault case would not bar later prosecution for the separate offense of aggravated sexual assault committed by penetrating the anus of N.D. The State responds the evidence is legally sufficient, because N.D.'s trial testimony and forensic interview shows Guzman penetrated her female sexual organ with his finger. A.Standard of Review
Guzman argues the insufficiency of the evidence pursuant to Jackson v. Virginia and the allegedly fatal variance under Gollihar. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Gollihar v. State, 46 S.W.3d 243, 246 (Tex. Crim. App. 2001). In reviewing a challenge to the sufficiency of the evidence, we examine all the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319; Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010) (plurality op.). We are required to defer to the jury's credibility and weight determinations because the jury is the sole judge of the witnesses' credibility and the weight to be given their testimony. See Jackson, 443 U.S. at 326. "This standard measures evidentiary sufficiency against the `substantive elements of the criminal offense as defined by state law." Fuller v. State, 73 S.W.3d 250, 252 (Tex. Crim. App. 2002) (citing Jackson, 443 U.S. at 324 n. 16). In evaluating the sufficiency of the evidence under Gollihar, we consider "the elements of the offense as defined by the hypothetically correct jury charge for the case." Gollihar, 46 S.W.3d at 253 (internal quote marks omitted). This charge "would be one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried. . . ." Gollihar, 46 S.W.3d at 253 (emphasis omitted). B. Applicable Law
A person commits aggravated sexual assault, "(1) if the person: . . . (B) intentionally or knowingly: (i) causes the penetration of the anus or sexual organ of a child by any means; . . . and (2) if: . . . (B) the victim is younger than 14 years of age;" Tex. Penal Code Ann. § 22.021(a)(1)(B)(i)-(a)(2)(B) (West 2010). In context of another statute, we have defined anus as "the posterior opening of the alimentary canal. . . ." Wright v. State, 693 S.W.2d 734, 734 (Tex. App.-Dallas 1985, pet. ref'd); see also Martinez v. State, Nos. 14-03-00596-CR, 14-03-00597-CR, 2004 WL 1153682, at *2 (Tex. App.-Houston [14th Dist.] May 25, 2004, pet. ref'd) (mem. op.) ("`Anus' is defined as the `posterior opening of the alimentary canal.'"). "Female sexual organ is a more general term than vagina and refers to the entire female genitalia, including both vagina and the vulva." Karnes v. State, 873 S.W.2d 92, 96 (Tex. App.-Dallas 1994, no pet.) (internal quote marks omitted). The Court of Criminal Appeals has relied on expert testimony describing "the female sexual organ as being comprised of an external and an internal part. The external part consists of outer vaginal lips, or labia majora, which enfold an opening to the internal organ or vaginal canal." Vernon v. State, 841 S.W.2d 407, 409 (Tex. Crim. App. 1992). Penetration for aggravated sexual assault "may mean `to enter into' or `pass through'" and does not require proof of penetration of the vaginal canal. Id. at 409-10. "[M]ere contact with the outside of an object does not amount to penetration [b]ut pushing aside and reaching beneath a natural fold of skin into an area of the body not usually exposed to view, even in nakedness, is a significant intrusion beyond mere external contact." Id. at 409. "Penetration, within the meaning of section 22.021 of the penal code, occurs so long as contact with the female sexual organ could reasonably be regarded by ordinary English speakers as more intrusive than contact with outer vaginal lips." Karnes, 873 S.W.2d at 96. Thus, "[t]ouching beneath the fold of the external genitalia amounts to penetration within the meaning of the aggravated sexual assault statute." Id. "[W]e cannot expect the child victims of violent crimes to testify with the same clarity and ability as is expected of mature and capable adults." Villalon v. State, 791 S.W.2d 130, 134 (Tex. Crim. App. 1990). "[A] child may testify using language appropriate for her age to describe the sexual assault, including the element of penetration." Karnes, 873 S.W.2d at 96. "We do not sit as a thirteenth juror to evaluate the weight to be given a witness' testimony based on her use of unsophisticated language or limited vocabulary." Id. Instead, we "may keep in mind a child-witness' lack of technical knowledge in accurately describing the parts of the body when reviewing the child's testimony." Id. The testimony of the victim, even if a child, need not be corroborated. See Johnson v. State, 449 S.W.2d 65, 67 (Tex. Crim. App. 1969) ("The general rule is well established that the testimony of a prosecutrix in a rape case even under the age of 15 years need not be corroborated."); Karnes, 873 S.W.2d at 96 ("the testimony of a sexual assault victim alone is sufficient evidence of penetration to support a conviction, even if the victim is a child."). "A `variance' occurs when there is a discrepancy between the allegations in the indictment and the proof presented at trial. Gollihar, 46 S.W.3d at 246. Variances between indictment and proof have been held to constitute legal sufficiency issues. In a case where a variance is raised, "the State has proven the defendant guilty of a crime, but has proven its commission in a manner that varies from the allegations in the [indictment]." Id. Such a variance may render the evidence insufficient to sustain the conviction. Id. at 247. When the reviewing court is faced with a sufficiency of the evidence claim based upon a variance between the indictment and the proof, only a material variance will render the evidence insufficient and require reversal. Id. at 257. In Gollihar, the court adopted the materiality test applied in the Fifth Circuit. Id. Under that test, a variance between the wording of an indictment and the evidence presented at trial constitutes a "fatal variance" mandating reversal only if it is material and prejudices the defendant's substantial rights. Id. When reviewing such a variance, we must determine whether the indictment, as written, informed the defendant of the charge against him sufficiently to allow him to prepare an adequate defense at trial, and whether prosecution under the deficiently drafted indictment would subject the defendant to the risk of being prosecuted later for the same crime. Id.C.Application of Law to Facts
At trial, N.D. testified Guzman touched her on her "bottom" or "privacies" where she goes either "number one or number two." N.D. stated "[Guzman] got his finger and poked me inside of my bottom." During N.D.'s forensic interview and at trial, N.D. demonstrated what Guzman did with his finger by poking her own finger into the slot on top of a "kleenex box." During her forensic interview, N.D. pointed between her legs to her female sexual organ in response to a question about where Guzman "poke[d]" her. N.D. testified Guzman touched N.D. with his finger and she started bleeding. M.P., N.D.'s cousin, also testified she saw N.D. bleeding when she saw N.D. in the restroom. N.D. testified when Guzman touched her ". . . there was pain." During N.D.'s forensic interview, she marked the vaginal area on a drawing where Guzman touched her and she circled a buttocks indicating where Guzman spanked her. N.D. was seven years old when the incident occurred. Guzman admitted to police he touched "[M.P.]'s cousin" on the inside of her panties. N.D. is M.P.'s cousin. On this record, we conclude the evidence satisfies the Jackson v. Virginia standard. The record includes proof of every fact necessary to constitute aggravated sexual assault, including intentionally and knowingly causing the penetration of the female sexual organ of N.D. Viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found Guzman penetrated N.D.'s female sexual organ . Accordingly, we resolve Guzman's first issue against him as to the sufficiency of the evidence under the Jackson v. Virginia standard of review. Also, we conclude no fatal variance exists in this case as argued by Guzman. As described above, the proof at trial shows Guzman penetrated N.D.'s female sexual organ. Accordingly, we decide the second part of issue one against Guzman. III. SEPARATE PUNISHMENT HEARING
In his second issue, Guzman argues "the trial court committed reversible error by sentencing [Guzman] without affording [Guzman] a separate hearing regarding punishment." Guzman argues he was not required to object at trial, because "[a] defendant is not required to object at trial to a trial court's failure to grant a separate punishment hearing in order to preserve error since an opportunity to object would not exist until after the objectionable action has occurred" and relies on Issa v. State for this proposition. Issa v. State, 826 S.W.2d 159 (Tex. Crim. App. 1992). The State responds Guzman did not preserve error for review, because Guzman "did not object at trial" and "[n]o motion for new trial appears in the clerk's records." A.Standard of Review
"To preserve an issue for appellate review, the defendant must make a timely request, objection or motion stating specific grounds for the ruling he desires the trial judge to make; the objection must be made at the earliest opportunity." King v. State, 953 S.W.2d 266, 268 (Tex. Crim. App. 1997); see also Tex. R. App. P. 33.1 ("As a prerequisite to presenting a complaint for appellate review, the record must show that: (1) the complaint was made to the trial court by a timely request, objection, or motion. . . ."). The standard for reversible error in criminal cases is articulated in Texas Rule of Appellate Procedure 44.2(a) and (b). Tex. R. App. P. 44.2(a)-(b). Rule 44.2 provides: (a) Constitutional error. If the appellate record in a criminal case reveals constitutional error that is subject to harmless error review, the court of appeals must reverse a judgment of conviction or punishment unless the court determines beyond a reasonable doubt that the error did not contribute to the conviction or punishment. (b) Other errors. Any other error, defect, irregularity, or variance that does not affect substantial rights must be disregarded. Tex. R. App. P. 44.2(a)-(b). B.Application of Law to Facts
We cannot agree with Guzman that Issa supports his argument that he need not object at trial to preserve this issue. Issa is distinguishable in that while there was no objection lodged, Issa timely filed a motion for new trial to preserve error. Issa, 826 S.W.2d at 161. In the case before us, Appellant neither objected at trial nor filed a motion for new trial. Also, in Issa, the defendant was not offered the opportunity to present mitigating evidence. However, Guzman had an opportunity to present mitigating evidence, and he did so. The record reflects, Guzman's brother testified among other things, Guzman is "an exemplary brother." However, such testimony does not address whether Guzman committed the alleged acts. Cf. Hardeman v. State, 1 S.W.3d 689, 691 (Tex. Crim. App. 1999) (reasoning "[t]hese matters have nothing to do with whether he used cocaine or paid his fines during probation" and holding "Hardeman had the opportunity to present evidence during the proceedings, and that is all that is required."). Finally, in the case before us, the record reflects after closing statements, the trial court asked if there was anything further "[f]rom the Defense?" Guzman's attorney responded "No, Your Honor." Cf. Srader v. State, No. 05-01-01526-CR, 2002 WL 485419, at *1 (Tex. App.-Dallas April 2, 2002, no pet.) (concluding "the trial court did not deny appellant a separate punishment hearing" where "[t]he trial judge specifically asked appellant if he had any questions or anything further he wanted to say. Appellant replied no."). We decide Appellant's second issue against him. V. CONCLUSION
Having decided both issues against Appellant, the judgments of the trial court are affirmed.