No. 04-07-00197-CR
Delivered and Filed: March 12, 2008. DO NOT PUBLISH.
Appealed from the 144th Judicial District Court, Bexar County, Texas, Trial Court No. 2004-CR-7836, Honorable Catherine Torres Stahl, Judge Presiding. Affirmed.
Sitting: CATHERINE STONE, Justice, SANDEE BRYAN MARION, Justice, REBECCA SIMMONS, Justice.
CATHERINE STONE, Justice.
Miguel Montenegro was charged by indictment with the felony offense of indecency with a child. Following a jury trial, he was found guilty and the jury assessed punishment of five years imprisonment in the Texas Department of Criminal Justice — Institutional Division. The sentence was suspended and probated for five years with no fine. Montenegro now appeals, contending the evidence is legally and factually insufficient to support a finding of guilt. We affirm the trial court's judgment.
Standard of Review
When considering a legal sufficiency challenge, we review all the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found all of the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Hernandez v. State, 198 S.W.3d 257, 260 (Tex.App.-San Antonio 2006, pet. ref'd). We must affirm the trial court's judgment if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. McDuff v. State, 939 S.W.2d 607, 614 (Tex.Crim.App. 1997). When considering a factual sufficiency challenge, we view all the evidence in a neutral light and set aside the verdict only if: (1) the evidence is so weak the verdict is clearly wrong and manifestly unjust; or (2) the verdict is against the great weight and preponderance of the evidence. Watson v. State, 204 S.W.3d 404, 414-15 (Tex.Crim.App. 2006). The jury evaluates the credibility and demeanor of witnesses and determines the weight afforded contradicting testimony. Stogiera v. State, 191 S.W.3d 194, 196 (Tex.App.-San Antonio 2005, no pet.). Factual Background
On Friday, February 7, 2003, D.M., a twelve-year-old girl, spent the night at Samantha Wickwire's home. Living in the Wickwire home at that time were eight members of the Wickwire family and Montenegro, who was twenty-three years old and dated Samantha's sister, Laura. Montenegro had lived in the Wickwire house since 1999 and usually slept in Samantha's room, while Samantha slept in her parent's room all but a few nights a year. On the night in question, however, Samantha and D.M. decided to sleep in Samantha's room. According to D.M.'s testimony, sometime between 10:00 p.m. and midnight, Samantha and D.M. were upstairs in Samantha's room talking, and Samantha fell asleep on the bed. Montenegro looked in the room and started talking to D.M. She did not remember the conversation but at some point Montenegro went to get a book about cats. He sat in a chair and read to her while D.M. sat in his lap. While he was reading, D.M. became interested in some remote control cars that she saw on a shelf. They looked for batteries, but never found any. Eventually they decided to go downstairs to watch a movie. D.M. did not remember whether anyone else watched the movie with them, but she did remember they watched "Godzilla." D.M. and Montenegro sat on opposite sides of a couch, and she had her legs on his lap. D.M. fell asleep watching the movie, and the next thing she remembered was being on the floor of Samantha's room. Montenegro was rubbing her private parts with his fingers, mostly inside the lips of her vagina, and his hand was in her underwear. When D.M. moved and turned, he stopped moving his hand but he kept it in her underwear and then started rubbing again. D.M. said he did not stop until she fully woke up and made a sound. He then handed her a pillow, said "Here is your pillow," and left the room. She stated she was able to identify Montenegro because a lamp was on in the room and there was a light on in the bathroom. D.M. said she tried without success to wake Samantha and tell her what happened. She then got in bed with Samantha and eventually fell asleep. When asked about what happened on the following day, D.M. said the only thing she remembered was telling Samantha about Montenegro "fingering" her. She was unable to recall any other details about the day. D.M. remembered telling her mother, Ana, that Montenegro touched her "pee-pee," and that she felt a burning sensation when she went to the bathroom. According to Montenegro's testimony, he and Laura came home from dinner around midnight. Laura went to bed, but Montenegro watched the last ten minutes of a movie in the living room with Samantha's father and two brothers. After the movie finished, he went upstairs with the intention of going to bed. Montenegro looked into Samantha's room, and Samantha asked him to come in. The topic of cats came up in their conversation and he went to get the book about cats. He sat in the chair and read to them. Samantha fell asleep and D.M. walked over and sat on his knee. As he read, D.M. noticed the remote control cars, but they could not find the remote controls. He picked D.M. up by the waist to look on a top shelf, but they never found the controls. It was past midnight but D.M. said she was not tired, so they went downstairs and watched "Godzilla" in the living room. They sat on the couch together and she stretched out her legs and put her feet across his lap. At some point, Samantha's brother Bond came in and watched the movie with them. As D.M. was falling asleep, Montenegro asked her if she wanted to sleep on the couch, or if she wanted him to carry her up to Samantha's room. D.M. told him to carry her up. After she fell asleep, he carried her upstairs, and tried to put her on the bed with Samantha, but the bed was too small. So he put her on the floor, handed her a pillow, said "Here's your pillow," and turned off the lamp as he left the room. Samantha testified that D.M. acted normally on Saturday morning. However, her prior statement to the police investigator reflected that Samantha asked D.M. what was wrong at breakfast. Samantha also testified that D.M. was uncertain about whether she had been molested, and that D.M. said Montenegro may have "fingered" her; however, this testimony was also inconsistent with her prior statement. Samantha said that on Saturday D.M. had asked to spend another night with the Wickwires. Samantha also testified that D.M. had a bad reputation for truthfulness. D.M.'s mother, Ana, testified that D.M. was very quiet when she saw her on Saturday. On Saturday night, D.M. had a headache, so Ana gave her Tylenol and put her to bed early. Sunday morning D.M. told Ana that Montenegro had touched her private parts, and that her "pee-pee" burned. Ana called Mrs. Wickwire on the phone. The next day, Mrs. Wickwire, Ana, and D.M. went to the hospital together where D.M. was examined by Sexual Assault Nurse Examiner Rebecca Pena. Pena testified that she collected four genital swabs and that although there was no indication of injuries, there are rarely injuries in touching cases. She also diagnosed D.M.'s vaginal burning sensation as dysuria, which is usually associated with an infection of the urinary tract. Pena said dysuria could be a result of the kind of rubbing D.M. described. As part of her testimony, Pena repeated D.M.'s account of the touching "word-for-word" from the notes she took at the exam. Janelle Silva, a classmate of D.M. and Samantha, testified that D.M. had spoken to her three times about the incident with Montenegro. The first time was in the Spring of 2004, when they first met. D.M. told Silva she had been raped by Montenegro in Samantha's room. A month later, D.M. said Montenegro had "fingered" her in Bond's room. Finally, Silva testified that in December of 2004 D.M. said she had made up the incident with Montenegro. Silva also testified that D.M. had a bad reputation for truthfulness. Throughout the trial, the State argued that many of the defense witnesses were biased for Montenegro. The State elicited testimony that the Wickwires had helped Montenegro with his legal fees, that although Montenegro moved out of the house, they had continued to support him financially after the incident, and that they had traveled with Montenegro to court in their vehicle each day of the trial. Additionally, Silva admitted that her family was close to the Wickwire family, and that the Wickwires had also brought her to court in the same car as Montenegro. Sufficiency of the Evidence
The offense of indecency with a child involves (1) a person; (2) who engages in sexual contact; (3) with a child who is younger than 17 years; and (4) is not his or her spouse. Tex. Penal Code Ann. § 21.11(a) (Vernon 2003). "Sexual contact" includes any touching by a person, including touching through clothing, of the anus, breast, or any part of the genitals of a child, if committed with the intent to arouse or gratify the sexual desire of any person. Id. § 21.11(c)(1). Accordingly, in this case, the State was required to prove that Montenegro touched the genitals of D.M. with the intent to arouse or gratify sexual desire. On appeal, Montenegro contends the evidence was legally and factually insufficient to support his conviction because (1) D.M. never saw Montenegro when he was touching her; (2) there was no other corroborating physical evidence; and (3) D.M.'s testimony, which was undermined by inconsistencies and her bad reputation for truthfulness, was the only evidence to support his conviction. Montenegro's first argument is that D.M. did not reliably identify him as the person who touched her because she identified him by the size of his hands and because she testified that she never looked at him while he had his hand in her underwear. However, D.M. testified that she saw Montenegro as he handed her a pillow, and that she saw his face because a lamp was on in Samantha's room and light came in from the bathroom. Montenegro corroborated her testimony that he gave her a pillow and turned off the lamp as he left the room. Even if the jury had not been persuaded that D.M. had a sufficient opportunity to see his face and identify him, circumstantial evidence indicated that Montenegro was the only person who could have touched her. Montenegro testified that: (1) Montenegro, Samantha, and D.M. were the only persons in the room at the relevant time; (2) Samantha was asleep on the bed; (3) and Montenegro gave D.M. a pillow as she was waking up. It was rational for the jury to believe that Montenegro was in the room at the time D.M. was touched. Montenegro also contends that the evidence was insufficient because there was no direct evidence of physical trauma, nor any other physical evidence to corroborate D.M.'s testimony. However, the testimony of a child victim alone may be sufficient to support a sexual assault conviction. Tex. Code Crim. Proc. Ann. art. 38.07 (Vernon 2005); Ruiz v. State, 891 S.W.2d 302, 304 (Tex.App.-San Antonio 1994, pet. ref'd). Reconciliation of conflicts in the evidence is within the sole discretion of the jury. Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim.App. 1986). In this case, the jury determined that the State's evidence was sufficiently credible, even in the absence of conclusive medical proof. Montenegro also argues that the evidence is insufficient because D.M. was an unreliable witness and had a bad reputation for truthfulness. Weighing the evidence and determining the credibility of witnesses is the sole province of the jury. Id. Although some witnesses testified that D.M. had a bad reputation for truthfulness, the State repeatedly pointed to the bias of the witnesses for Montenegro. The State pointed to the fact that many of the defense witnesses remembered many of the same details clearly, but then could not remember other details at all. There were also substantial differences between Samantha's testimony at trial and her previous statements to investigators. Silva was also questioned about her bias and she answered questions about an incident in the courthouse elevator where D.M. was crying and Silva was laughing at D.M. It was the jury's prerogative to believe D.M.'s testimony after evaluating her demeanor and credibility in the light of all the contradictory evidence presented by each side in this case. Stogiera, 191 S.W.3d at 196. It was also the jury's prerogative to evaluate the demeanor and credibility of all other witnesses in this case and to believe or discredit the testimony of each witness in light of all the evidence. Id. D.M.'s testimony established all the necessary elements of this crime: she was under the age of seventeen and unmarried at the time Montenegro touched her genitals. The jury could infer that Montenegro touched her with the intent to arouse or gratify because he was rubbing her genitals until D.M. tried to turn away, but three times he started moving his fingers again. A rational trier of fact could have believed D.M.'s testimony and could have found all necessary elements of indecency with a child by touching beyond a reasonable doubt. We conclude the evidence is legally sufficient to support a verdict of guilty and we overrule Montenegro's first issue. In his second issue, Montenegro challenges the factual sufficiency of the evidence. Montenegro relies on the same points raised with respect to his legal sufficiency challenge, but adds the assertion that the evidence against him was too weak to support the conviction. D.M.'s testimony alone is sufficient to support his conviction. The bulk of D.M.'s testimony about the night of February 7 was corroborated by Montenegro's and Samantha's testimony. Montenegro admitted on the stand that D.M.'s version of events was "fairly consistent [with his version], with the exception of what she accused me of." The only major disagreements Montenegro had with D.M.'s testimony, other than denying that he touched her genitals, were that Samantha was awake when he first came into the room, and that Bond came into the living room and watched "Godzilla" at some point in the movie. D.M. consistently repeated her version of the events to her mother, to the S.A.N.E. nurse, and in the courtroom. To the extent D.M.'s testimony was inconsistent, or that there were conflicts in the evidence, the jury had sufficient evidence to convict Montenegro. We cannot conclude that the verdict is clearly wrong or manifestly unjust, or that the verdict is against the great weight and preponderance of the evidence. See Watson, 204 S.W.3d at 414-15 (setting forth factual sufficiency standard of review). Accordingly, we overrule Montenegro's second issue. The judgment of the trial court is affirmed.