No. 05-07-00094-CR
Opinion Filed February 11, 2008. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the Criminal District Court No. 7, Dallas County, Texas, Trial Court Cause No. F05-51659-NVY.
Before Justices O'NEILL, RICHTER, and LANG.
MARTIN RICHTER, Justice.
Alfredo Nepomuceno appeals his jury conviction and thirteen-year sentence for indecency with a child. In five points of error, Nepomuceno complains of the legal and factual sufficiency of the evidence to support the conviction and certain evidentiary rulings concerning evidence of domestic violence and the interpreter who translated the complainant's testimony. We affirm.
Background
Nepomuceno, the complainant's mother's boyfriend, was charged with the offense after the complainant disclosed that he had molested her. Specifically, Nepomuceno was charged with touching the complainant's genitals with his hand. See Tex. Pen. Code Ann. § 21.11(a)(1),(c)(1) (Vernon 2003). Nepomuceno was also charged with aggravated sexual assault for contacting the complainant's genitals with his mouth. See id. § 22.021(a)(1),(B)(iii),(2)(B) (Vernon 2007). At trial, the complainant, age eight, testified through an interpreter that she was six years old when Nepomuceno began molesting her. Because her mother worked evenings, she was often in Nepomuceno's care. According to the complainant, Nepomuceno touched her "part"-genitals, "butt and chest" with his hands, whistled at her "like when people whistle at someone when they look good," told her she "looked good," and "played vampire" with her, "suck[ing] and kiss[ing]" on her "belly, neck, hand, and stomach." In testifying to the parts of her body Nepomuceno "touched" and "kissed," the complainant pointed to the parts on the drawing of a girl and then named the body parts. Although apparently the prosecutor and the interpreter, who was at the witness stand during this portion of the complainant's testimony, both saw the complainant point to the genitals of the girl in the drawing when testifying concerning the parts Nepomuceno had "kissed," the complainant denied she had. The State subsequently called the interpreter to "straighten out" the complainant's testimony and show the complainant had in fact pointed to the genitals of the girl in the drawing. The complainant's mother testified she dated Nepomuceno for four years, after divorcing the complainant's father. About three-and-a-half years into the relationship, she noticed the complainant started "crying a lot . . . [sleep] walking . . . and having accidents." The complainant also appeared scared and her attitude towards Nepomuceno "changed." Five months after she began seeing the changes in the complainant, the complainant acted inappropriately with her. She questioned the complainant about the behavior and learned of the abuse. The mother immediately called the police and took the complainant to the Children's Advocacy Center where the complainant was interviewed and subsequently physically examined and placed in therapy. The medical records of her examination were admitted into evidence, over objection, and showed the mother reported the complainant had disclosed that Nepomuceno had touched her genitals with his hand. The Children's Advocacy Center therapist testified the complainant cried and showed anger towards Nepomuceno during the sessions. To help her, the therapist had the complainant draw pictures describing the abuse and expressing her feelings. These pictures were admitted into evidence, over objection also, and showed that Nepomuceno "touched" and "kissed" the complainant on her "part," chest, and stomach, and showed her "movies she wasn't supposed to watch." Testifying in his defense, Nepomuceno denied the allegations and denied seeing any behavioral changes in the complainant. As part of his defense, Nepomuceno also sought to introduce evidence that the complainant's father had been physically abusive towards the mother and, as a result, the complainant, her sister, and mother had received counseling at the Family Place, a shelter for victims of domestic violence. With this evidence, Nepomuceno sought to establish the complainant's emotional problems were attributable to the complainant's father and not him. However, the trial court excluded the evidence. At punishment, the complainant's sister testified Nepomuceno had charges pending against him for molesting her also. She detailed the abuse and testified she disclosed the abuse to her mother the same day the complainant did. The mother testified she felt "scared and sad" when she learned what Nepomuceno had done to her daughters and described various emotional problems both girls were experiencing as a result of the abuse by Nepomuceno. Nepomuceno did not testify in this phase of trial but several family members and friends testified on his behalf, urging leniency and probation. Additionally, he was able to present the evidence that the complainant, her sister, and mother had received counseling at the Family Place as a result of her father's violent conduct. The evidence showed the complainant's sister was in counseling for a year after the divorce and the complainant was in counseling there until a month before she disclosed the abuse by Nepomuceno. Although Nepomuceno sought to establish the specific "content or purpose" of the therapy the complainant received at the Family Place and sought to "discredit" the sister by specifically eliciting from her that she could have called her Family Place counselor to report Nepomuceno's abuse but failed to do so, the trial court did not allow him. As stated, the jury found Nepomuceno guilty of indecency and assessed a thirteen-year sentence. The jury found Nepomuceno not-guilty of aggravated sexual assault. Sufficiency of the Evidence
In his third and fourth points of error, Nepomuceno challenges the legal and factual sufficiency of the evidence to support the conviction. Specifically, in his third point, Nepomuceno argues the evidence is legally insufficient because the State alleged one "means" of committing the offense-touching of the genitals-but proved another-touching of the breast. In his fourth point, Nepomuceno argues the evidence is factually insufficient because "the only arguable proof . . . comes from limited, inadmissible hearsay evidence:" (1) "an ambiguous drawing by the complainant" made during therapy and (2) medical records showing the complainant's mother reported Nepomuceno touched the complainant's genitals with his hand. Nepomuceno maintains that as a result, his conviction should be reversed and either he should be acquitted or the cause remanded for a new trial. Our question in a sufficiency challenge is whether a rational trier of fact could have found beyond a reasonable doubt the essential elements of the offense. Watson v. State, 204 S.W.3d 404, 415 (Tex.Crim.App. 2006); Wesbrook v. State, 29 S.W.3d 103, 111 (Tex.Crim.App. 2000). In reviewing a legal sufficiency challenge, we view the evidence in the light most favorable to the verdict, bearing in mind that the fact-finder is the exclusive judge of the witnesses' credibility and the weight given to the evidence. Moff v. State, 131 S.W.3d 485, 488 (Tex.Crim.App. 2004); Jones v. State, 944 S.W.2d 642, 647 (Tex.Crim.App. 1996). In reviewing a factual sufficiency challenge, we view the evidence in a neutral light and may substitute our judgment for the fact-finder's on the question of witness credibility and weight of evidence determinations but only "to a very limited degree." Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App. 2006), cert. denied, 128 S.Ct. 87 (2007). Indecency with a child may be committed by different acts including touching of the genitals and touching of the breast. Tex. Pen. Code Ann. § 21.11(a)(1),(c)(1). Unless occurring at the same time, each of these acts is a separate offense that must be independently proven. See Pizzo v. State, 235 S.W.3d 711, 717 (Tex.Crim.App. 2007); Francis v. State, 36 S.W.3d 121, 124 (Tex.Crim.App. 2000). In other words, to obtain a conviction for indecency, the State must prove beyond a reasonable doubt at trial that the defendant committed the exact act alleged in the indictment and set out in the jury charge. See Francis, 36 S.W.3d at 124; Planter v. State, 9 S.W.3d 156, 159 (Tex.Crim.App. 1999). The complainant's uncorroborated testimony alone is both legally and factually sufficient to meet this burden. Tex. Code Crim. Proc. Ann. Art. 38.07(a) (Vernon 2005); Navarro v. State, 241 S.W.3d 77 (Tex.App.-Houston [1st Dist.] 2007, pet. ref'd). Viewing the record here under the appropriate standard, we conclude the evidence is both legally and factually sufficient to support the verdict. As stated, the record reflects the complainant specifically testified Nepomuceno touched her genitals. Although Nepomuceno denied the allegations, the jury was free to disbelieve his testimony and believe the complainant's, and we will not disturb that finding. From the complainant's testimony alone, we conclude a rational jury could have found Nepomuceno committed the offense. Tex. Code Crim. Proc. Ann. art. 38.07(a); Navarro, 241 S.W.3d at 81. Nepomuceno's argument that the State failed to prove he touched the complainant's genitals altogether or proved the offense at most with nothing other than "limited, inadmissible hearsay" is without merit. We overrule Nepomuceno's third and fourth points of error. Evidentiary Rulings
In his first, second, and fifth points of error, Nepomuceno complains of certain evidentiary rulings concerning the domestic violence evidence and the interpreter who translated the complainant's testimony. Specifically, in his first and second points, he asserts the trial court abused its discretion in excluding the evidence of domestic violence at the guilt-innocence phases of trial and in limiting the scope of the domestic violence evidence at punishment. In his fifth point, he asserts the court abused its discretion in allowing the interpreter to testify. Nepomuceno maintains these trial court's rulings were harmful and as such, his conviction should be reversed. We review evidentiary rulings under an abuse of discretion standard. Walters v. State, 2007 WL 4245387, *9 (Tex.Crim.App. 2007). We will conclude a trial court abused its discretion if its ruling lies "outside the zone of reasonable disagreement" and we will reverse a conviction if such abuse harmed appellant. Tex. R. App. P. 44.2; Walters, 2007 WL 4245387, *9. As with other trial errors, to preserve an evidentiary complaint for appeal, the appellant must raise that specific complaint at trial. Tex. R. App. P. 33.1(a)(1)(A); Gallo v. State, 239 S.W.3d 757 (Tex.Crim.App. 2007); Tovar v. State, 221 S.W.3d 185, 189 (Tex.App.-Houston [1st Dist.] 2006, no pet.). Domestic Violence Evidence
In arguing his first point, Nepomuceno maintains the court's ruling at guilt-innocence denied him his right of cross-examination and prevented him from showing the issues being addressed with the complainant at the Children's Advocacy Center were not attributable to him. Additionally, Nepomuceno argues the excluded records should have been admitted because the State "opened" the door by "relying . . . on [the] complainant's post-outcry psychological condition." However, at trial, Nepomuceno argued the domestic violence evidence was necessary to show the complainant's "motive,"that is, "that as a result of violence witnessed as a child, she was outcrying against [him.]" He did not argue his rights of cross-examination were being encroached, he was being prevented from showing the complainant's problems originated before her mother and Nepomuceno began dating, nor that he was being denied the right to "respond" after the State "opened" the door. Nepomuceno's complaint on appeal does not conform with his complaint at trial and, as such, is waived. Tovar, 221 S.W.3d at 189. We overrule his first point. We also overrule his second point. In arguing this point, Nepomuceno maintains the trial court's limitations on the domestic violence evidence allowed during punishment prevented him from "further establish[ing] grounds to question the causal relationship, if any, between the alleged abuse and the psychological distress experienced by the complainant" and from "challeng[ing] [the sister's] credibility in claiming that she too was abused." However, to the extent Nepomuceno argues he was not allowed to "discredit" the sister, the record reflects otherwise. As stated, evidence was admitted showing the sister received therapy at the Family Place, but that she reported the abuse to her mother. This evidence shows exactly what Nepomuceno wanted to show. Moreover, to the extent he argues the excluded evidence of the specific "content or purpose" of the therapy the complainant received was relevant, we note that relevant punishment evidence is evidence that bears upon the appellant's responsibility and moral blameworthiness as well as the circumstances of the offense. Tex. Code Crim. Proc. art. 37.07, § 3(a) (Vernon Supp. 2007); Draheim v. State, 916 S.W.2d 593, 600 (Tex.App.-San Antonio 1996, pet. ref'd). The "content or purpose" of the complainant's therapy at the Family Place is neither. As our sister court in San Antonio has stated, to admit the details of abuse by another would "perniciously suggest to a lay juror both that [Nepomuceno's] conduct, standing alone, could not have caused the psychological . . . problems exhibited by [the complainant] after his [abuse] and that as a result, [he] was somehow less blameworthy." Draheim, 916 S.W.2d at 600. We conclude the trial court acted within its discretion in limiting the domestic violence evidence. The Interpreter
In arguing in his fifth point that the court erred in allowing the interpreter to testify, Nepomuceno equates an interpreter with a "judicial officer" and relies on Texas Rule of Evidence 605 which prohibits judges from testifying as a witness at trial. See Tex. R. Evid. 605. Nepomuceno maintains that because the State offered only "narrow, inadmissible hearsay evidence" to prove he committed the offense of indecency, "it is likely the [interpreter's] testimony persuaded the jury to find [him] guilty of indecency with a child." Nepomuceno, however, cites no authority, and we have found none, in support of his contention that the court abused its discretion because an interpreter, like a judge, is prohibited from testifying so as to maintain neutrality. See Tex. R. App. P. 38.1(h). Additionally, as previously stated, the State did not offer only "narrow, inadmissible hearsay evidence" to prove his guilt, but specifically elicited testimony from the complainant that he touched her "part." Although Nepomuceno argues the interpreter's testimony likely persuaded the jury to find him guilty of the indecency charge, the State offered the interpreter's testimony to prove the aggravated sexual assault charge, of which he was acquitted. Given the record before us, we fail to see how the interpreter's testimony could have persuaded the jury to find him guilty of the indecency charge when it did not persuade the jury to find him guilty of aggravated sexual assault. Nepomuceno's argument is without merit. Nepomuceno's fifth point is overruled. We affirm the trial court's judgment.