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Mijango v. State

Court of Appeals of Texas, Fifth District, Dallas
Aug 5, 2004
Nos. 05-03-01743-CR, 05-03-01744-CR (Tex. App. Aug. 5, 2004)

Opinion

Nos. 05-03-01743-CR, 05-03-01744-CR

Opinion Issued August 5, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.

On Appeal from the 291st Judicial District Court, Dallas County, Texas, Trial Court Cause Nos. F-0137468-MU, F-0301731-PU. Affirmed.

Before Chief Justice THOMAS and Justices, MOSELEY and MALONEY.

The Honorable Frances J. Maloney, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.


OPINION


The jury convicted Jose Salomon Mijango of two charges of aggravated sexual assault and assessed a twenty-year sentence and $5000 fine in each case. In two points of error, appellant complains the evidence is legally and factually insufficient to support his conviction. We affirm the trial court's judgment.

Appellant was referred to at trial as Jose Mijango-Escobar. He stated his full name was Jose Salomon Mijango-Escobar.

We are aware that this Court now resolves issues or points, but because appellant's brief refers to points of error, we use the term "point of error" in this opinion. See Tex.R.App.P. 38.1(e).

BACKGROUND

The indictments allege that the offenses occurred on or about November 30, 1999 when the complaining witness (B.S.) was younger than fourteen. B.S.'s mother and appellant were married at the time of the offense, and in the months before November 30, they lived in Irving, Texas. The indictments alleged contact and penetration of B.S.'s sexual organ and anus by appellant's sexual organ.

SUFFICIENCY OF THE EVIDENCE

Appellant argues that the State did not present legally or factually sufficient evidence that appellant used his sexual organ to contact B.S.'s sexual organ or anus. The State responds that the testimony supports the conviction. It argues that the law does not require child victims to testify with the same clarity and ability as adults and that the testimony of the sexual assault victim is itself enough to support a conviction.

1. The Evidence a. The Complainant

B.S., who was twelve at the time of trial, had known appellant since she was five. Things were "okay" when appellant first lived with them until he "started doing very ugly things" to her. He would do these things while her mother was at work. Appellant began touching her "in certain places" when she was five years old. Places she did not want him to touch. Using diagrams, B.S. identified three areas where she did not want to be touched-her "breasts," her "private" where she went to the bathroom, and her "butt" where she went to the bathroom "number two." Appellant had rubbed on her under her clothes, with his skin touching her skin. It happened when they lived in the Irving apartment. When she was older, appellant touched her with "his private." That happened somewhere other than Irving or Garland Appellant touched her "private" with his "private" and both of them were unclothed at the time. She had come out of the shower and was wearing only a towel. Appellant had touched her on her "butt." B.S. said, "He was behind me and he started moving back and forth," but she never saw his "private." These sexual encounters happened at different places and more than once. She remembered they had lived in both Irving and Terrell but did not remember living in Garland She was about nine or ten years old when they moved to Terrell, but appellant had been doing things to her the entire time he lived with her family. He touched her "private" with his "private" only when they lived in Terrell. However, on cross-examination, she said the incident that happened when she had been wearing the towel happened when they were living Irving. Appellant had been deported to El Salvador. When he returned, B.S. told her mother that appellant had been touching her, she "didn't want him to do it again," and she was "scared" of appellant. The defense later recalled B.S. and asked about her friend Whitney. B.S. had told Whitney about what appellant had done because Whitney had been abused by her father.

b. B.S.'s Mother

B.S.'s mother testified she met appellant in 1995. They married after knowing each other for about six or eight months. She had been married before and had two children when they married. Appellant told her he had never been married and had no children. She and appellant also had a daughter together who was five years old at the time of the trial. However, she later found out appellant "had been married and . . . had several children with several different women." Her children began calling appellant "Dad" after almost a year. Appellant was "very strict" with her and the children. Appellant worked as a roofer when she first met him, but within three or four months, he no longer had a job. She said that appellant often took care of the children while she was at work. The family lived in Irving for about two years before moving to Garland for six months. They then returned to Irving. In 1999, when B.S. was eight years old, they moved to Terrell without appellant because appellant had been "sent back" to El Salvador. Appellant returned and joined the family in Terrell in February 2000. That August or September, she asked appellant to leave because they "weren't getting along." In January 2001, appellant came to Terrell to see their daughter. While appellant was at the house, B.S. told her mother what appellant had been doing. Although B.S. did not provide much detail, her mother confronted appellant, who denied the accusation. While she and appellant were talking, B.S. came into the room crying. In a raised voice, B.S. said, "Why are you lying, Daddy? You did do that. Why are you lying to her?" B.S.'s statements and the unusual manner in which she made those statements convinced her mother that B.S. was telling the truth. B.S.'s mother made appellant leave. The next day, she called Child Protective Services. Several weeks later, after it was determined where jurisdiction was proper, the Irving Police Department became involved in the case. B.S. and her mother attended an interview at the Dallas Children's Advocacy Center where they met with Allison Medina. B.S.'s mother also took B.S. to see Dr. Dharma for a medical examination and counseling.

c. Carla Dharma.

Dr. Dharma, an obstetrician/gynecologist, testified that she did a complete exam and found nothing other than a mild discharge when she examined B.S. A doctor would not necessarily find anything in an exam if the alleged abuse was contact of the female sexual organ or even if there had been slight penetration.

d. Allison Medina

Medina, a forensic interviewer for the Dallas Children's Advocacy Center, testified that she interviewed B.S. in March 2001. The interview was video-taped, and the video was shown to the jury. After it was played in court, Medina testified about the video-taped interview. Medina explained the circumstances of the interview and her opinion of whether B.S. had been coached for her testimony. She had interviewed children that appeared to have been coached. B.S. did not appear to have been coached. In discussing some difficulty B.S. appeared to have with time and memory, Medina explained that children do not always have an exact concept of time. It was very common for a child to reveal more details after the first time they report abuse. Medina said she would not be surprised to hear that B.S. was currently saying appellant touched her private part with his private part. Medina also stated that when a child is abused over an extended period of time, they often are confused about when and where all of the incidents of abuse have occurred. However, it was clear to Medina that the abuse occurred on many occasions and in many locations but primarily in Irving.

e. The Video

B.S. was nine years old during the interview. Using a diagram provided by Medina, B.S. identified a drawing of a boy and a girl. On the diagrams, she identified the female's breast, "private part," and "booty." She identified the "private part" on the male diagram. B.S. said it was not okay for someone to touch her on her breasts, "private part," or "booty," but that her "Dad," Salomon, had touched her, mostly with his hands. He touched her first when they lived in Irving, but it happened more than once. B.S. referred to her anus when she used the term "booty" and when she referred to appellant's penis she used the term "private part." In describing one of the occurrences, B.S. said appellant had called her into the living room then told her to go to her mother's bedroom. B.S. used stuffed rabbits to show Medina how they lay on the bed. B.S. was on her side, and appellant was on his side behind B.S., facing her. She said appellant pulled down her pants and her panties, and she felt him pull down his shorts. Appellant rubbed his private part against her booty for about five minutes. She knew it was his private part because it felt soft, but she never saw his private part. She later said she felt his private part "standing up" and that it was hard. Appellant had rubbed on her in Irving as well as in other places. It happened while her mother was at work. She stated "mostly" the same thing as she had already described would happen. B.S. told appellant she was going to tell her mother, but he told her not to because he said her mother would not believe her. However, when appellant was going to move in with them again, she told her mother because B.S. was afraid he would do it again. She also was afraid "it would happen" to her younger sister when her sister was older.

g. James Sears

Sears, a child abuse investigator for the Domestic Violence Unit of the Irving Police Department, testified he had watched Medina interview B.S. Nothing in the video indicated to him B.S. had been coached or was making false statements. Usually when a child reports abuse, they provide more information as time passes. He had not had the opportunity to talk to appellant because he was not able to locate him. Therefore, he filed the case "at large."

h. Appellant

Appellant testified that he met B.S.'s mother in Irving when they lived in the same apartment complex. After they became romantically involved, they decided to live together. He was the disciplinarian with the children and there were no problems with the children. Appellant could not remember when he and B.S.'s mother divorced. The appellant said he had been married only once and that he had two additional children. He had not lied to B.S.'s mother about his other children because she had not asked him about whether he had other children. He did not know the year their daughter had been born. He could not provide B.S.'s mother's children's full names because he had been working "all the time." When asked about B.S., appellant said that he did not touch her inappropriately, expose himself to her, or rub his "private part" on her "private part." These allegations made him very sad, and he stated, "I don't know nothing about what they are accusing me of."

2. Standard of Review a. Legal Sufficiency

In evaluating the legal sufficiency of the evidence, we view all 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 offense beyond a reasonable doubt. King v. State, 29 S.W.3d 556, 562 (Tex.Crim.App. 2000). The factfinder is the exclusive judge of the witnesses' credibility and of their testimony's weight, and it is within the factfinder's exclusive province to resolve any evidentiary conflicts. See Wesbrook v. State, 29 S.W.3d 103, 111 (Tex.Crim. App. 2000). A claim of legal insufficiency is, in effect, an argument that the case should never have even been presented. Id.

b. Factual Insufficiency

In reviewing the factual sufficiency of evidence to support a verdict, we must answer one question-"[c]onsidering all of the evidence in a neutral light, was a jury rationally justified in finding guilt beyond a reasonable doubt." Zuniga v. State, No. 539-02, 2004 WL 840786, at *7 (Tex.Crim.App. Apr. 21, 2004). We determine the factual sufficiency of evidence by (1) considering if the evidence supporting the verdict is by itself too weak to support the conviction beyond a reasonable doubt and (2) weighing the evidence supporting and contrary to the verdict to determine if the beyond-a-reasonable-doubt standard could not have been met. Id. In conducting this review, we must not "substantially intrude upon" the factfinder's role as the sole judge of the evidence's weight and the testimony's credibility. See Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000); see also Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979). We must defer to the jury's decisions on credibility and weight. See Swearingen v. State, 101 S.W.3d 89, 97 (Tex.Crim.App. 2003).

3. Applicable Law

A person commits aggravated sexual assault if he causes the sexual organ or the anus of a child to contact the sexual organ of another, including the actor. Tex. Pen. Code Ann. § 22.021 (a)(1)(B)(iii), (a)(1)(B)(iv), (a)(2)(B) (Vernon Supp. 2004). A child may testify using language appropriate for her age to describe the sexual assault. See Villalon v. State, 791 S.W.2d 130, 134 (Tex.Crim.App. 1990). We do not sit as a thirteenth juror to evaluate the weight given a witness's testimony because of unsophisticated language or limited vocabulary. See id. It is well established that the testimony of a sexual assault victim alone is sufficient evidence of contact or penetration to support a conviction, even if the victim is a child. Karnes v. State, 873 S.W.2d 92, 96 (Tex. App.-Dallas 1994, no pet.); see also Garcia v. State, 563 S.W.2d 925, 928 (Tex.Crim.App. [Panel Op.] 1978).

4. Application of Law to the Facts

Appellant relies on B.S. not having seen appellant's sexual organ and her statements in the video that when appellant was rubbing her with his private part, it was soft. He states that "not a single piece of evidence submitted by the State supports the finding that appellant's sexual organ made any contact" with B.S. We disagree. B.S.'s testimony alone supplied every essential element of the offenses charged. B.S. testified that appellant first rubbed her "private part" after she came out of the shower. Later, she testified the incident after the shower occurred in Irving. B.S. testified that appellant rubbed her "butt" with his "private part." On the video, B.S. stated appellant rubbed her "booty" with his "private part" and that appellant had rubbed on her in Irving. Medina's and Sears's testimony supported B.S.'s testimony. Both Medina and Sears testified that a child victim often provides more information about the abuse incidents as time passes. Medina told the jury it was not uncommon for a child to confuse the many acts of abuse when there are many occurrences, and Medina believed most of the abuse occurred in Irving. Viewing the evidence in the light most favorable to the verdict, we conclude any reasonable factfinder could have found the essential elements of the offense beyond a reasonable doubt. Although appellant denied the allegations, the jury was the exclusive judge of the credibility and it was within the jury's exclusive province to resolve any evidentiary conflicts. We conclude that legally sufficient evidence exists to support the verdict. We overrule appellant's first point of error. Under the Zuniga standard, after reviewing and weighing the evidence supporting the judgment and the evidence contrary to the judgment, we cannot conclude that the contrary proof is so strong that the State did not meet the beyond-a-reasonable doubt standard. Nor do we conclude that the contrary proof outweighed the proof of guilt. We conclude the evidence was factually sufficient. We overrule appellant's second point of error. We affirm the trial court's judgment.


Summaries of

Mijango v. State

Court of Appeals of Texas, Fifth District, Dallas
Aug 5, 2004
Nos. 05-03-01743-CR, 05-03-01744-CR (Tex. App. Aug. 5, 2004)
Case details for

Mijango v. State

Case Details

Full title:JOSE SALOMON MIJANGO, Appellant v. THE STATE OF TEXAS, Appellee

Court:Court of Appeals of Texas, Fifth District, Dallas

Date published: Aug 5, 2004

Citations

Nos. 05-03-01743-CR, 05-03-01744-CR (Tex. App. Aug. 5, 2004)