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acknowledging that most of the evidence was weak concerning when the sexual abuse had occurred but holding that the record "contain[ed] evidentiary puzzle pieces that the jury could have carefully fit together" to determine that sexual abuse had occurred over a period of thirty or more days
Summary of this case from Bridgefarmer v. StateOpinion
NO. 02-15-00365-CR
07-21-2016
MARIO ALBERTO MACHADO APPELLANT v. THE STATE OF TEXAS STATE
FROM THE 213TH DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 1231116D MEMORANDUM OPINION
See Tex. R. App. P. 47.4.
Appellant Mario Alberto Machado appeals his conviction for continuous sexual abuse of a young child. In four points, he contends that the evidence is insufficient to support his conviction, that the statute supporting his conviction is facially unconstitutional because it allows a jury to reach a verdict that is not unanimous, and that two articles within the code of criminal procedure that authorize the imposition of certain court costs are facially unconstitutional. We affirm.
See Tex. Penal Code Ann. § 21.02(b) (West Supp. 2015).
Background Facts
According to the evidence presented by the State, G.G. (Grace) met appellant, her grandmother's boyfriend, when she was "[a]round eight or nine" years old. On some weekends, Grace slept over at her grandmother's house along with her brother and two cousins. On some early mornings while it was still dark—at least three times—appellant entered the room where Grace, her brother, and her cousins were sleeping and touched her sexual organ and her breast underneath her clothes. Appellant also took Grace's "hand and place[d] it on" his penis on at least one occasion. Neither Grace nor appellant spoke while the touching occurred.
We use an alias to protect the victim's anonymity. See McClendon v. State, 643 S.W.2d 936, 936 n.1 (Tex. Crim. App. [Panel Op.] 1982).
Grace's grandmother and appellant later married.
Grace told one of her cousins about appellant's abuse of her. She resisted returning to her grandmother's house because of the abuse. Eventually, she told her mother about the abuse. Grace's mother spoke to the police and took Grace to a forensic interview and to a medical exam by a sexual assault nurse examiner (SANE). Grace described appellant's abuse to the SANE and told the SANE that the abuse had occurred the prior summer. Grace also told the SANE that appellant had put his mouth on her sexual organ.
A grand jury indicted appellant for continuous sexual abuse of a young child. The indictment alleged that from December 2009 through August 2010, appellant had committed two or more acts of sexual abuse—including aggravated sexual assault of a child and indecency with a child—against Grace. Appellant retained counsel and filed several pretrial motions, including a motion to quash the indictment on the basis that the statute supporting his charge—section 21.02 of the penal code—was unconstitutional because it violated jury unanimity requirements. The trial court denied the motion to quash.
At trial, appellant objected to the jury charge on the grounds that it allowed the jury to return a verdict that was not unanimous and that it violated his right to due process; he asserted that this objection was "consistent with [the] Motion to Quash."
At trial, appellant pled not guilty. After receiving the parties' evidence and arguments, the jury found him guilty. The trial court heard further evidence and arguments on the issue of appellant's punishment, and the court sentenced him to forty-five years' confinement. The trial court's judgment of conviction assessed $659 in court costs against appellant, including $250 for DNA testing and $100 for child abuse prevention. Appellant brought this appeal.
Grace's grandmother testified that she did not believe Grace's allegations about appellant's sexual abuse.
Evidentiary Sufficiency
In his first point, appellant argues that the evidence is insufficient to support his conviction. In our due-process review of the sufficiency of the evidence to support a conviction, we view all of the evidence in the light most favorable to the verdict to 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 (1979). This standard gives full play to the responsibility of the trier of fact to resolve 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; Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App.), cert. denied, 136 S. Ct. 198 (2015).
The trier of fact is the sole judge of the weight and credibility of the evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Dobbs v. State, 434 S.W.3d 166, 170 (Tex. Crim. App. 2014). Thus, when performing an evidentiary sufficiency review, we may not re-evaluate the weight and credibility of the evidence and substitute our judgment for that of the factfinder. See Montgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012). Instead, we determine whether the necessary inferences are reasonable based upon the cumulative force of the evidence when viewed in the light most favorable to the verdict. Murray, 457 S.W.3d at 448. We must presume that the factfinder resolved any conflicting inferences in favor of the verdict and defer to that resolution. Id. at 448-49. In resolving an evidentiary sufficiency point, we must consider that the factfinder may believe or not believe the testimony of any witness, in whole or in part. See Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986) (stating that "a witness may be believed even though some of his testimony may be contradicted and part of his testimony recorded, accepted, and the rest rejected"), cert. denied, 488 U.S. 872 (1988); Bottenfield v. State, 77 S.W.3d 349, 355 (Tex. App.—Fort Worth 2002, pet. ref'd) ("The jury is free to believe or disbelieve the testimony of any witness, to reconcile conflicts in the testimony, and to accept or reject any or all of the evidence of either side."), cert. denied, 539 U.S. 916 (2003).
A person who is seventeen years old or older commits continuous sexual abuse of a child younger than fourteen if "during a period that is 30 or more days in duration, the person commits two or more acts of sexual abuse, regardless of whether the acts of sexual abuse are committed against one or more victims." Tex. Penal Code Ann. § 21.02(b). Under section 21.02, members of the jury are not required to agree unanimously "on which specific acts of sexual abuse were committed by the defendant or the exact date when those acts were committed. The jury must agree unanimously that the defendant, during a period that is 30 or more days in duration, committed two or more acts of sexual abuse." See id. § 21.02(d).
The penal code defines "act of sexual abuse" as including several penal code offenses, including sexual assault, aggravated sexual assault, and indecency with a child. Tex. Penal Code Ann. § 21.02(c)(2)-(4).
Appellant restricts his evidentiary sufficiency challenge. He does not contest the sufficiency of the evidence to show that he committed two or more acts of sexual abuse against Grace while she was younger than fourteen and while he was seventeen or older. See id. § 21.02(b). Rather, he contends only that the "State failed to prove that the alleged acts of sexual abuse occurred over a time period longer than 30 days." See id. § 21.02(b)(1); see also Price v. State, 434 S.W.3d 601, 606 (Tex. Crim. App. 2014) (recognizing that section 21.02 authorizes a conviction "so long as the jury members agree that at least two acts occurred during a period that is thirty or more days in duration"). He asserts, "Although the exact dates of the abuse need not be proven, the offense of continuous sexual abuse of a child does require proof that the last act of sexual abuse occur on at least the 29th day after the day of the first act." He highlights excerpts from Grace's testimony in which she could not recall how many times appellant had abused her or when the abuse occurred, and he argues that her testimony "fails to support even a modicum of evidence to [show] . . . that the abuse spanned a time period of at least [thirty] days."
But viewing all of the evidence in the light most favorable to the verdict, the record contains evidentiary puzzle pieces that the jury could have carefully fit together to rationally find beyond a reasonable doubt that appellant's sexual abuse of Grace occurred over a period of thirty days or more. See Flowers v. State, 220 S.W.3d 919, 923 (Tex. Crim. App. 2007) ("The trier of fact fits the pieces of the jigsaw puzzle together and weighs the credibility of each piece."). Grace testified that she went to her grandmother's house to spend the night on certain weekends and that on at least three separate occasions while she was there, appellant sexually abused her. Grace's grandmother, while expressing that she did not believe Grace's story of sexual abuse, testified that Grace stayed with her exactly three times in 2010: once approximately in February, once "around April," and once in May. Considering Grace's testimony that the abuse occurred on at least three separate trips to her grandmother's house and her grandmother's testimony that the trips only occurred once around February, once around April, and once in May, the jury could have rationally found that appellant's sexual abuse of Grace covered a period of longer than thirty days.
Other witnesses testified that Grace stayed with her grandmother more often; her mother testified that Grace stayed there "[e]very weekend or every two weekends" on "Friday or Saturday."
Furthermore, Grace testified that "after the first two times" appellant abused her, she began resisting going to her grandmother's house. Grace's mother testified that this resistance occurred in April, May, or June of 2010. She also testified that the last time that she sent Grace to her grandmother's house was in August 2010. A police officer testified that when she spoke to Grace's mother about the abuse on September 24, 2010, Grace's mother explained that the abuse had occurred approximately "a month [or] a month and a half" before then, or in August 2010. Thus, putting this testimony from Grace, her mother, and the officer together, the jury could have rationally found that the sexual abuse covered a period longer than thirty days.
It is true, as appellant argues, that most of the remaining evidence is weak concerning when appellant's abuse of Grace occurred. Even so, we must defer to the jury's implicit resolution of reasonable and competing inferences on the question of whether the abuse occurred over a period of thirty days or more. See Murray, 457 S.W.3d at 448-49; see also Raybon v. State, No. 02-12-00071-CR, 2013 WL 4129126, at *5 (Tex. App.—Fort Worth Aug. 15, 2013, pet. dism'd) (mem. op., not designated for publication) ("[T]he jury was entitled to choose between two reasonable inferences, and we must defer to that choice.").
Grace testified that she could not remember exactly how many times the abuse occurred, the season of the year when the first and last abuse occurred, whether she was in school or on summer vacation when the abuse occurred, or whether the acts of abuse occurred in the same month or were spread out over several months. Grace testified that it "probably wasn't a month" between appellant's first and second acts of sexual abuse; she did not "think it was that long" between the first and second acts.
Viewing all of the evidence in the light most favorable to the verdict, we conclude that the jury could have rationally found beyond a reasonable doubt that appellant's abuse of Grace occurred during a period that spanned thirty days or more. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; see also Tex. Penal Code Ann. § 21.02(b)(1). Therefore, we hold that the evidence is sufficient to support appellant's conviction for continuous sexual abuse of a young child, and we overrule appellant's first point.
Unanimity
In his second point, appellant argues that the trial court erred by denying his motion to quash the indictment because section 21.02 of the penal code is facially unconstitutional. Specifically, he argues that section 21.02 is unconstitutional because it does not require a unanimous verdict "about who was sexually assaulted or when, or which penal law or laws the defendant violated."
But Texas courts, including this court, have authoritatively ruled against appellant's position and have upheld section 21.02's federal and state constitutionality.See Holton v. State, 487 S.W.3d 600, 606-08 (Tex. App.—El Paso 2015, no pet.); Pollock v. State, 405 S.W.3d 396, 405 (Tex. App.—Fort Worth 2013, no pet.); Reckart v. State, 323 S.W.3d 588, 601 (Tex. App.—Corpus Christi 2010, pet. ref'd); Render v. State, 316 S.W.3d 846, 857-58 (Tex. App.—Dallas 2010, pet. ref'd), cert. denied, 562 U.S. 1243 (2011); see also Macintosh v. State, No. 02-13-00059-CR, 2014 WL 1087926, at *2 (Tex. App.—Fort Worth Mar. 20, 2014, pet. ref'd) (mem. op., not designated for publication) (collecting other cases). Appellant's argument does not persuade us to abandon our precedent or to differ from these persuasive decisions from other intermediate appellate courts. Thus, based on the rationale in the cases cited above, we hold that appellant's prosecution under section 21.02 did not violate his constitutional right to a unanimous verdict, and we conclude that the trial court did not err by denying his motion to quash. We overrule appellant's second point.
Appellant states in his brief that he is "aware that this [c]ourt has previously held section 21.02 does not violate the requirement of jury unanimity. . . . The issue is raised here to preserve it for further review."
Court Costs
In his third and fourth points, appellant contends that two articles within the code of criminal procedure that authorize the imposition of court costs are facially unconstitutional. He challenges article 102.0186, which concerns costs related to certain sex-related convictions, and article 102.020, which concerns costs related to DNA testing. See Tex. Code Crim. Proc. Ann. arts. 102.0186(a), (c) (requiring the payment of $100 upon certain convictions and stating that the cost must be used to pay for child abuse prevention programs), 102.020(a)(1) (requiring the payment of $250 upon certain convictions) (West Supp. 2015). He argues that the costs are unconstitutional because they are not necessary or incidental to the trial of a criminal case.
Appellant recognizes, however, that the court of criminal appeals recently rejected the "necessary or incidental" standard as governing the constitutionality of court costs.See Peraza v. State, 467 S.W.3d 508, 517, 521 (Tex. Crim. App. 2015), cert. denied, 136 S. Ct. 1188 (2016). Furthermore, in Peraza, the court of criminal appeals rejected the very argument appellant makes in his third point, which is that article 102.020 is facially unconstitutional. Id. at 510, 521 ("Because Peraza has not demonstrated that every application of the statute assigning DNA Record Fee revenue to the state highway fund would be unconstitutional, he has not met his burden to show that the portion of the DNA Record Fee that benefits the state highway fund is facially unconstitutional."). The court rejected its prior opinion in Ex parte Carson—the case upon which appellant principally relies in his third and fourth points—as governing the constitutionality of court costs. 143 Tex. Crim. 498, 506, 159 S.W.2d 126, 130 (1942) (op. on reh'g), overruled by Peraza, 467 S.W.3d at 517.
With respect to appellant's third point, in which he challenges the constitutionality of article 102.020, he states, "Undersigned counsel is aware that the Court of Criminal Appeals recently held contrary to Appellant's argument. . . . The issue is presented here to preserve the matter for further review." --------
Appellant contends that Peraza was wrongly decided for several reasons, but we do not have discretion to reject the holdings of the court of criminal appeals. See State ex rel. Vance v. Clawson, 465 S.W.2d 164, 168 (Tex. Crim. App.), cert. denied, 404 U.S. 910 (1971); Crenshaw v. State, 424 S.W.3d 753, 755 (Tex. App.—Fort Worth 2014, no pet.). Because the holding in Peraza explicitly forecloses appellant's facial challenge to the constitutionality of article 102.020, we overrule appellant's third point. Peraza, 467 S.W.3d at 510, 521. And because Peraza rejected Carson's "necessary or incidental" standard upon which appellant solely bases his challenge to the constitutionality of article 102.0186, we overrule his fourth point. Id. at 517.
Conclusion
Having overruled appellant's four points, we affirm the trial court's judgment.
/s/ Terrie Livingston
TERRIE LIVINGSTON
CHIEF JUSTICE PANEL: LIVINGSTON, C.J.; MEIER and GABRIEL, JJ. DO NOT PUBLISH
Tex. R. App. P. 47.2(b) DELIVERED: July 21, 2016