Opinion
No. 05-11-00483-CR
08-08-2012
MIGUEL PLATA, Appellant v. THE STATE OF TEXAS, Appellee
AFFIRM; Opinion issued August 8, 2012
On Appeal from the 199th Judicial District Court
Collin County, Texas
Trial Court Cause No. 199-82676-09
MEMORANDUM OPINION
Before Justices FitzGerald, Murphy, and Fillmore
Opinion By Justice Murphy
A jury convicted Miguel Plata of five counts of indecency with a child and assessed punishment at sixteen years in prison for each count. The trial court ordered one of the sentences to run consecutively to the other four sentences. In two issues, appellant challenges the sufficiency of the evidence to support four of the five convictions and argues that because insufficient evidence supports four of his convictions, the trial court's stacking order is void. We affirm.
Background
Appellant was charged in a single indictment with five counts of aggravated sexual assault and five counts of indecency with a child by contact. See Tex. Penal Code Ann. §§ 21.11(a)(1), 22.021(a)(1)(B)(i) (West 2011 & Supp. 2012). The charges arose out of five separate incidents alleged to have occurred in 2005 and 2006, with the indecency with a child counts presented as lesser offenses of the aggravated sexual assault counts. The aggravated sexual assault counts were numbered 1, 3, 5, 7, and 9; the indecency with a child counts were numbered 2, 4, 6, 8, and 10. Appellant pleaded not guilty to each count, and the case proceeded to a jury trial.
The complainant was C.P., appellant's granddaughter, who was sixteen years old at the time of trial. C.P. testified that when she was ten or eleven years old, she used to sleep in a made-up bed on the living room floor. During the school year, appellant woke her up each morning for school. C.P. testified that when appellant came to wake her up, he would lie behind her and “put his hand down [her] pants” and “just, kind of, touch.” C.P. explained there was skin-to-skin contact, and when he put his hand inside her underpants, he “rubbed in circles and stuff” around her “private area.” C.P. testified she did not know why appellant was touching her or what she was supposed to do. She also said it happened often. C.P. specifically testified it happened “every week” and described the touching as appellant's routine, stating “any time he did it, it was always, like, the same routine.”
C.P. confirmed there was more than one incident and that the other incidents occurred in the same way. Stacy Wendling, the forensic interviewer, testified C.P. told her the touching occurred on a regular basis over a period of two years; C.P. estimated it started when she was in the fifth or sixth grade and continued until the end of the seventh grade school year. C.P. also told Wendling about how appellant's hand would go down inside her underpants and touch her. C.P. described appellant's hand as moving back and forth, just touching.
The touching would stop when C.P. moved and woke up. At that point, appellant would start shaking her and tell her it was time to get ready for school. C.P. testified appellant usually could get his hand out of her underpants before she fully woke up, although she was awake when he was touching her. But she described one instance in which appellant “couldn't act fast enough” and started patting her on the “cushy” part of her butt. C.P. testified the touching finally stopped when she was twelve or thirteen years old. She said at that time she started sleeping in her own room and used an alarm clock to wake herself up.
Three years later, C.P. decided to tell someone what happened to her because she was scared for her younger sister. At that time, her sister was around the same age as C.P. was when the touching began, and C.P. saw appellant on the bed trying to wake up her sister. She was concerned because it took longer to wake her sister up, and she did not want her sister to have to go through the same thing.
In a recorded interview with a detective, which was played for the jury, appellant denied C.P.'s allegations and told the detective the accusations were something C.P. and her mother made up so C.P. could live with her mother in California. Appellant later admitted that everything C.P. said was true. Appellant told the detective how he touched her by going down through the top of her underpants, stating “it just happened, man.” He twice demonstrated on the detective's hands how he touched C.P. Appellant also said it happened “just once.” He promised it would not happen again and offered to move to Oklahoma.
The jury found appellant guilty of the five counts for indecency with a child-Counts 2, 4, 6, 8, and 10. After a punishment hearing, the jury assessed punishment at sixteen years' confinement for each count. The trial court ordered appellant's sentences for Counts 2, 4, 6, and 8 to run concurrently but consecutive to the sentence for Count 10. Discussion
Appellant argues in his first issue that the evidence is insufficient to support his convictions for Counts 4, 6, 8, and 10. He contends C.P. “described nothing more than a pattern of acts and never described a particular incident.” He maintains this evidence was sufficient to support “only one conviction” and not the other four incidents alleged by the State.
In reviewing a challenge to the sufficiency of the evidence, we examine all the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Brooks v. State, 323 S.W.3d 893, 894-95 (Tex. Crim. App. 2010) (plurality op.). We defer to the jury's credibility and weight determinations because the jury is the sole judge of the witnesses' credibility and the weight to be given their testimony. See Jackson, 443 U.S. at 326.
The jury found appellant guilty of five counts of indecency with a child. See Tex. Penal Code Ann. § 21.11(a)(1). To prove beyond a reasonable doubt appellant committed the offense of indecency with a child as charged in this case, the State had to establish appellant intentionally and knowingly engaged in sexual contact with C.P, a child younger than seventeen, by touching part of her genitals with his hand with the intent to arouse and gratify appellant's sexual desire. Id. “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.” Id. § 21.11(c)(1). The State could meet its burden through the testimony of the child complainant alone or her outcry statement. See Tex. Code Crim. Proc. Ann. art. 38.07(a) (West Supp. 2011); Lee v. State, 186 S.W.3d 649, 655 (Tex. App.-Dallas 2006, pet. ref'd) (child victim testimony); Rodriguez v. State, 819 S.W.2d 871, 873-74 (Tex. Crim. App. 1991) (outcry statement).
Appellant's argument is that C.P.'s testimony established only one offense and her testimony was insufficient to establish the four additional offenses with which he was charged. Each count in the indictment for indecency with a child alleged appellant touched part of C.P.'s genitals with his hand. C.P. testified appellant put his hand inside her underpants and rubbed around her “private area” in circles “every week” from the time she was ten or eleven until she was twelve or thirteen. She also told the jury the touching happened the same way each time and that appellant never did anything differently, such that it was like a routine. She specifically described how appellant would make skin-to-skin contact when he touched her and what he would do when she moved or started to wake up. Wendling similarly testified to the touching described by C.P. and that C.P. told her the touching happened on a regular basis over a two-year period.
The evidence that appellant touched C.P.'s private area with his hand “every week” when he woke her up for school is specific evidence of separate incidents that occurred on at least five separate occasions in 2005 and 2006 as charged in the indictment. See Klein v. State, 273 S.W.3d 297, 303 (Tex. Crim. App. 2008) (concluding, despite complainant's recantation and lack of specific dates, sufficient evidence existed to show four separate incidents of sexual assaults when testimony established appellant touched her sexual organ “most nights” for six to eight weeks); Ex parte Pruitt, 233 S.W.3d 338, 340-41 (Tex. Crim. App. 2007) (complainant testimony that appellant penetrated her vagina with his penis “at least once a month” sufficiently described “every alleged incident of penetration” occurring over two-year period); Dixon v. State, 201 S.W.3d 731, 734 (Tex. Crim. App. 2006) (complainant “described the manner in which appellant sexually assaulted her and said that it occurred numerous times” thus “all of the incidents presented in the case were presented with equal specificity”). Thus, viewing this evidence in the light most favorable to the verdict, the jury could have found appellant committed the offense of indecency with a child by contact on five separate occasions as alleged in the indictment. Jackson, 443 U.S. at 319; Lee, 186 S.W.3d at 655 (testimony of child complainant alone sufficient to support conviction). Although there may have been a conflict in the evidence-C.P. testified the touching happened “every week”; appellant told the detective it happened just once-that conflict was for the jury to resolve, and we may not re- evaluate the weight and credibility of the evidence or substitute our judgment for that of the jury. Jackson, 443 U.S. at 326. We therefore conclude the evidence is legally sufficient to support appellant's convictions for Counts 4, 6, 8, and 10. We overrule appellant's first issue.
Based on our resolution of appellant's first issue, we need not address his second issue regarding the trial court's stacking order. See Tex. R. App. P. 47.1.
We affirm the trial court's judgment.
MARY MURPHY
JUSTICE
Do Not Publish
Tex. R. App. P. 47
110483F.U05
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
MIGUEL PLATA, Appellant
V.
THE STATE OF TEXAS, Appellee
No. 05-11-00483-CR
Appeal from the 199th Judicial District Court of Collin County, Texas. (Tr.Ct.No. 199- 82676-09).
Opinion delivered by Justice Murphy, Justices FitzGerald and Fillmore participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered August 8, 2012.
MARY MURPHY
JUSTICE