No. 05-09-01063-CR
Opinion Filed October 25, 2011. DO NOT PUBLISH. TEX. R. APP. P. 47.
On Appeal from the 282nd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F04-43681-S.
Before Justices MORRIS, O'NEILL, and FILLMORE.
Opinion By Justice FILLMORE.
A jury convicted Domingo Ibarra of indecency with a child by exposure. The trial court followed the State's recommendation on punishment and sentenced Ibarra to three years' imprisonment. In his first three issues, Ibarra contends the evidence is insufficient to support the conviction and he was deprived of a full record on appeal. In his final two issues, Ibarra argues that, if this Court determines the missing portion of the record is not necessary to this appeal, then rule of appellate procedure 34.6(f)(3) violates due process and due course of law and is unconstitutional facially and as applied to Ibarra. The State requests we modify the trial court's judgment to reflect the correct statute under which Ibarra was convicted. As modified, we affirm the trial court's judgment.
Background
C.L., who was eighteen years old at the time of trial, testified that she, her mother, and her two siblings lived in Mission, Texas until she was ten years old. While the family lived in Mission, C.L.'s mother started a romantic relationship with Ibarra. According to C.L., Ibarra was "always there" for the family and was "like a father" to her. Ibarra occasionally assisted the family financially and was there to talk with them and "comfort" them. When C.L. was ten, her family moved to Garland, Texas for a short period of time and then to Richardson, Texas. C.L.'s family's apartment in Richardson had two bedrooms. C.L.'s mother slept in one bedroom, and C.L.'s brother slept in the other bedroom. C.L. and her younger sister slept in the living room and alternated sleeping on the floor and the couch. After C.L. and her family moved to Richardson, Ibarra continued to visit the family for one to two weeks at a time. Ibarra would sleep with C.L.'s mother in her bedroom. C.L. testified that Ibarra changed after her family moved to Richardson. Ibarra said his back was always hurting and asked C.L. to massage him. Typically, Ibarra would lay on C.L.'s mother's bed, and C.L. would massage his lower back. C.L. thought she was helping Ibarra and would massage his back for fifteen or twenty minutes at a time. C.L.'s mother also gave Ibarra massages and was aware that C.L. gave Ibarra massages. C.L.'s mother testified she thought nothing about C.L. giving Ibarra a massage because Ibarra was constantly complaining about back pain and asking for a massage. According to C.L., she was giving Ibarra a massage when he touched her thigh and moved his hand towards her private. C.L. was eleven years old at the time. C.L. felt uncomfortable and moved off the bed. C.L. did not tell her mother about Ibarra putting his hand on her thigh because her mother loved Ibarra. C.L. thought if she told her mother about the incident, her mother "would have nobody." C.L. testified there was another incident during that same visit by Ibarra. C.L. was asleep on the living room floor when Ibarra came out of her mother's bedroom. Ibarra was wearing C.L.'s mother's robe with nothing on underneath it, and C.L. saw Ibarra's private. Ibarra turned on the television and lay on the floor beside C.L. At first, both Ibarra and C.L. were lying on their backs. Then Ibarra turned towards C.L. and started touching her breasts and her private over her clothes. C.L. pretended she was asleep and turned away from Ibarra. Ibarra then returned to C.L.'s mother's bedroom. Although she did not provide a clear time frame for the incident, C.L. testified that on another occasion, she was sitting on the couch with Ibarra when he asked her to massage his legs. Ibarra grabbed her wrist and tried to force her hand toward his private. C.L.'s thumb went inside Ibarra's boxer shorts. C.L. pulled away from Ibarra and got off of the couch. Ibarra told C.L. that she did not have to tell her mother about the incident because she knew "what would happen if [she] did." C.L. knew if she told her mother, her mother's relationship with Ibarra would end. C.L. testified that approximately one month after the first incident, Ibarra visited the family again. She gave Ibarra a massage in her mother's bedroom. As she was getting off the bed, Ibarra grabbed her and placed her on the bed. C.L. testified she was wearing shorts, a shirt, and underwear and Ibarra was wearing only boxer shorts. Ibarra got on top of C.L. with his legs between her legs. According to C.L., Ibarra pushed down the top of his boxer shorts and took out his private. C.L. testified Ibarra's private was "hard" and erect. Ibarra attempted to push C.L.'s shorts and underwear to one side. C.L. testified she attempted to move away from Ibarra and his private touched her thigh. C.L. rolled off the bed and went outside. According to C.L., this was the last incident with Ibarra. C.L. confirmed the incidents with Ibarra occurred in 2001 and that she was eleven "at the time that this was going on." Following the final incident, C.L. was depressed and not able to do her schoolwork. C.L. testified that in 2004 she was called to the school counselor's office, but did not know what the counselor wanted to discuss with her. On her way to the counselor's office, C.L. decided to tell the counselor about Ibarra's conduct because she "had enough of it." The counselor began questioning C.L. about why her grades were so low and why she was sad all the time. C.L. testified the counselor was not angry with her. C.L. told the counselor that her stepfather was touching her. The counselor then attempted to comfort C.L. According to C.L., she felt relief that her mother would be told about the touching because Ibarra would not come back. C.L. initially testified she had last seen Ibarra a month before her outcry, but then stated it could have been up to a year since she last saw Ibarra. C.L.'s mother initially testified her relationship with Ibarra ended the same year that C.L. made the outcry, but then stated the relationship could have ended more than a year before the outcry. C.L. testified she was having problems with some girls at school around the time of her outcry. She initially said the problems started after her outcry, but then admitted there was tension between her and the girls prior to the outcry. One of the girls ultimately accused C.L. of following the girl into the bathroom, trying to kiss her, and harassing her. C.L. testified the accusation was made after her outcry, she had not harassed any girl prior to the outcry, and she had no knowledge of the accusation at the time she was called to the counselor's office. According to C.L., the accusation was false and the girl ultimately recanted. C.L. received seven days of in-school suspension based on the allegation. However, she only served two days of the suspension. Ibarra was indicted for indecency with a child by contact. The jury convicted him of the lesser included offense of indecency with a child by exposure. The trial court followed the State's recommendation on punishment and sentenced Ibarra to three years' imprisonment. Sufficiency of the Evidence
In his first two issues, Ibarra asserts the evidence is insufficient to support the conviction. Ibarra specifically argues the evidence did not establish he exposed his genitals or acted with the intent to arouse or gratify the sexual desire of any person. We review the sufficiency of the evidence under the standard set out in Jackson v. Virginia, 443 U.S. 307 (1979). Adames v. State, No PD-1126-10, 2011 WL 4577870, at *3 (Tex. Crim. App. Oct. 5, 2011). We examine 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 offense beyond a reasonable doubt. Jackson, 443 U.S. at 319; Adames, 2011 WL 4577870, at *4. This standard recognizes "the responsibility of the trier of fact fairly to resolve conflicts in the evidence, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Jackson, 443 U.S. at 319; see also Adames, 2011 4577870, at *4. The jury, as the fact finder, is entitled to judge the credibility of the witnesses, and can choose to believe all, some, or none of the testimony presented by the parties. Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991); Tear v. State, 74 S.W.3d 555, 560 (Tex. App.-Dallas 2002, pet. ref'd). We must defer to the jury's determinations of credibility, and may not substitute our judgment for that of the fact finder. Jackson, 443 U.S. at 319; Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010) (plurality op.); King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000) (in conducting legal sufficiency analysis, appellate court "may not re-weigh the evidence and substitute our judgment for that of the jury"). A person commits the offense of indecency with a child by exposure if, with the intent to arouse or gratify the sexual desire of any person, he (1) exposes his anus or any part of his genitals knowing a child younger than seventeen years of age and not his spouse is present, or (2) causes the child to expose the child's anus or any part of the child's genitals. Tex. Penal Code Ann. § 21.11(a)(2) (West 2011). The testimony of a child witness alone is sufficient to support a conviction for indecency with a child by exposure. See Tex. Code Crim. Proc. Ann. art. 38.07 (West 2005); Tear, 74 S.W.3d at 560; Proctor v. State, No. 11-09-00327-CR, 2011 WL 4820088, at *2 (Tex. App.-Eastland Oct. 6, 2011, no pet. h.). C.L. testified that, when she was eleven years old, she saw Ibarra's private on two occasions — once when he came into the living room wearing nothing but a robe and once when he pulled his private out of his boxers. On a drawing, C.L. identified Ibarra's "private" as his genitals. This testimony was sufficient to establish that Ibarra exposed his genitals knowing a child under the age of seventeen was present. See Tear, 74 S.W.3d at 560; Proctor, 2011 WL 4820088, at *2. As to Ibarra's intent to arouse or gratify the sexual desire of any person, C.L. testified about Ibarra's touching her leg, attempting to force C.L. to touch his private, and touching C.L.'s breast and private over her clothes. She also testified that when Ibarra pulled his private out of his boxers, it was erect. According to C.L., with his legs between her legs, Ibarra attempted to move her shorts and underwear to one side. This testimony was sufficient to establish that Ibarra had an intent to arouse or gratify his sexual desire. See Tear, 74 S.W.3d at 560; Proctor, 2011 WL 4820088, at *2; see also Dillon v. State, 574 S.W.2d 92, 94 (Tex. Crim. App. [Panel Op.] 1978) (culpable mental state generally inferred from circumstantial evidence); McKenzie v. State, 617 S.W.2d 211, 216 (Tex. Crim. App. [Panel Op.] 1981) (permissible deduction from defendant's conduct that he acted with intent to arouse and gratify his own sexual desire); Navarro v. State, 241 S.W.3d 77, 79 (Tex. App.-Houston [1st Dist.] 2007, pet. ref'd) (intent to commit indecency with child by exposure "may be inferred from the defendant's conduct, his remarks, and all surrounding circumstances"). Ibarra asserts C.L. made the outcry to divert attention from the difficulties she was having at school and that C.L.'s testimony "strains credibility." However, it was the role of the jury to judge the credibility of C.L.'s testimony and we must defer to that determination. See Jackson, 443 U.S. at 319; Brooks, 323 S.W.3d at 899. Reviewing all the record evidence in the light most favorable to the jury's verdict, as well as the reasonable inferences arising from that evidence, we conclude a rational jury could have found Ibarra guilty of all of the elements of the offense beyond a reasonable doubt. See Jackson, 443 U.S. at 319; Adames, 2011 WL 4577870, at *4. We overrule Ibarra's first two issues. Missing Portion of Record
In his third issue, Ibarra contends he was deprived of a complete record on appeal and, therefore, is entitled to a new trial pursuant to rule of appellate procedure 34.6(f). In his fourth and fifth issues, Ibarra asserts that, if this Court determines the missing portion of the record is not necessary to this appeal, then rule 34.6(f)(3) violates due process and due course of law and is unconstitutional facially and as applied to him. After Ibarra complained that a portion of the record was missing, we abated this appeal and ordered the trial court to determine whether a hearing was conducted during the morning of the first day of trial, whether the hearing was recorded, the name of the court reporter who recorded the hearing, and whether notes are available and can be transcribed. At the subsequent hearing, the trial court made an oral finding that the first part of voir dire was conducted on the morning of the first day of trial during which the trial court went "through things" with the jury. Over Ibarra's counsel's objection, the trial court stated its portion of the voir dire generally lasts fifteen minutes and explains the jury process, the fact that everyone brings bias to every part of their lives, and the purpose of voir dire is to eliminate unfair bias. The trial court orally found notes from this voir dire are not available and cannot be transcribed. The trial court stated it did not know "why it wasn't taken down" or "who the court reporter was at the time." The trial court found the mistake was not Ibarra's fault. Ibarra argues he is entitled to a new trial pursuant to rule of appellate procedure 34.6(f) because a portion of the record has been lost or destroyed. Rule 34.6(f) entitles an appellant to a new trial if the record shows: (1) the appellant timely requested the reporter's record; (2) the missing portion of the record is significant and its loss or destruction is not the appellant's fault; (3) the lost or destroyed portion of the reporter's record is necessary to the appeal's resolution; and (4) the lost or destroyed portion of the reporter's record cannot be replaced by agreement of the parties. Tex. R. App. P. 34.6(f); Routier v. State, 112 S.W.3d 554, 571 (Tex. Crim. App. 2003). If the record does not support each of these facts, the appellant is not entitled to a new trial. Tex. R. App. P. 34.6(f); see also Banks v. State, 312 S.W.3d 42, 44 (Tex. App.-Dallas 2008, pet. ref'd) (supp. op. on remand) (appellant entitled to new trial if establishes all elements of rule 34.6(f)). A court reporter must generally make a full record of all proceedings. Tex. R. App. P. 13.1. However, to preserve error related to a court reporter's failure to do so, a defendant must object. Tex. R. App. P. 33.1; Davis v. State, 345 S.W.3d 71, 77 (Tex. Crim. App. 2011) (to preserve any error for appeal, defendant has burden to object when official court reporter is not present); Valle v. State, 109 S.W.3d 500, 508-09 (Tex. Crim. App. 2003). Here, the record does not reflect that Ibarra objected to either the absence of a court reporter or, if a court reporter was present, the reporter's failure to record the morning voir dire. Accordingly, he has waived any error on appeal. See Tex. R. App. P. 33.1; Valle, 109 S.W.3d at 508-09; see also Newman v. State, 331 S.W.3d 447, 450 (Tex. Crim. App. 2011) ("This record also does not show whether appellant objected in the event that the court reporter was not present to transcribe the June 26, 2008 hearing."); Schindley v. State, 326 S.W.3d 227, 231 (Tex. App.-Texarkana 2010, pet. ref'd) (op. on reh'g) (defendant waived any error in court reporter's failure to transcribe voir dire by failing to object in trial court). Further, even if he had preserved error, Ibarra cannot satisfy the requirements of rule 34.6(f). The trial court found the morning voir dire was not "taken down," there are no notes available from the morning voir dire, and it could not determine the identity of the court reporter during the morning voir dire. Rule 36.4(f) applies only to situations in which a portion of the proceeding was recorded but was later lost or destroyed. Williams v. State, 937 S.W.2d 479, 486 (Tex. Crim. App. 1996); see also Routier, 112 S.W.3d at 570 (principles underlying former version of rules applicable to rule 34.6(f)). "When the complaining party cannot show that the court reporter ever recorded the missing proceedings, he is not entitled to a new trial" under the rule. Williams, 937 S.W.2d at 486 (emphasis in original) (analyzing former rule 50(e) on lost records). Because Ibarra has failed to show the morning voir dire was recorded by the court reporter, he is not entitled to a new trial pursuant to rule 34.6(f). Id. at 486. We overrule Ibarra's third issue. Based on our disposition of Ibarra's third issue, we need not address Ibarra's fourth and fifth issues in which he asserts rule 34.6(f)(3) violates his right to due process and to due course of law and is unconstitutional facially and as applied to him. Modification of the Judgment
The State contends the judgment should be modified to reflect the correct statute under which Ibarra was convicted. Ibarra was convicted of indecency with a child by exposure under section 21.11 of the penal code. The trial court's judgment erroneously reflects Ibarra was convicted under section 22.11 of the penal code. We may modify a trial court's written judgment to correct a clerical error when we have the necessary information to do so. See Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex. App.-Dallas 1991, pet. ref'd). Accordingly, we modify the trial court's judgment to reflect Ibarra was convicted under section 21.11 of the Texas Penal Code. As modified, we affirm the trial court's judgment.