Opinion
No. 04-16-00810-CR
07-11-2018
Mario RIOS, Appellant v. The STATE of Texas, Appellee
MEMORANDUM OPINION
From the 437th Judicial District Court, Bexar County, Texas
Trial Court No. 2014CR5416
Honorable Lori I. Valenzuela, Judge Presiding Opinion by: Rebeca C. Martinez, Justice Sitting: Karen Angelini, Justice Marialyn Barnard, Justice Rebeca C. Martinez, Justice AFFIRMED AS MODIFIED
Mario Rios appeals his convictions on two counts of aggravated sexual assault of a child. We modify the trial court's judgments to delete "Repeater" from the offense of conviction, and affirm the judgments as modified.
BACKGROUND
Appellant Rios is the grandfather of the complainant, M.B., who was four years old at the time of the incidents. Rios and his wife cared for M.B. when her mother R.B. was at work. Rios is R.B.'s father. On May 16, 2012, R.B.'s youngest brother, Michael Rios, removed M.B. from Rios's home and took her to his older brother Mario's home, stating that he "saw something going on with [his] father and [M.B.] at the foot of the bed." Mario J. Rios was a Bexar County Sheriff's Deputy at the time. Mario testified that Michael was "real frantic" when he arrived with M.B. Michael told him that "he walked in on [their] father with [M.B.] at the edge of the bed, and . . . he was like thrusting on her" — with his "hip area" on her "pelvic area." Michael told Mario he "freaked out," pushed Rios away, grabbed M.B.'s stuff and left with her. Michael stated Rios and M.B. had their clothes on when he walked in. Mario notified R.B., who picked up M.B. and took her to ChildSafe that day. A ChildSafe counselor referred them to Christus Santa Rosa for a medical evaluation. Jennifer Degner, a Sexual Assault Nurse Examiner (SANE), interviewed M.B. and performed a physical examination. The physical examination of M.B. was normal, with no evidence of injury to her sexual organ or anus. No DNA evidence was found on M.B. or her clothing.
Rios was subsequently indicted on four counts of aggravated sexual assault of a child: by penetration of the child's sexual organ with his sexual organ (Count I); by penetration of the child's anus with his sexual organ (Count II); by penetration of the child's sexual organ with his finger (Count III); and by penetration of the child's anus with his finger (Count IV). Rios pled not guilty and proceeded to trial. At the conclusion of trial, a jury found Rios guilty on two counts (Counts I and II) and not guilty on the remaining counts. The trial court sentenced Rios to forty years in prison and imposed a fine of $2,000 on each count, with the sentences to run concurrently.
ANALYSIS
On appeal, Rios challenges the sufficiency of the evidence to support his convictions for aggravated sexual assault by penetration of M.B.'s female sexual organ (Count I), and penetration of M.B.'s anus (Count II), with his sexual organ. In addition, Rios asserts the trial court erred in admitting evidence that he committed the offense of indecency with a child by sexual contact in 1987.
Evidence of Penetration by Defendant's Sexual Organ
In his first two issues, Rios argues the evidence is insufficient to support the jury's findings that Rios's sexual organ "penetrated" M.B.'s sexual organ (Count I) and M.B.'s anus (Count II). Rios challenges M.B.'s credibility, asserting her trial testimony was internally inconsistent and conflicted with her statements to others. In the absence of any corroborating physical evidence, Rios contends there was no credible evidence of penetration. We apply the well-established standard of review for legal sufficiency to determine whether, viewing the evidence in the light most favorable to the verdict, a rational jury could have found the element of penetration beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Griffin v. State, 491 S.W.3d 771, 774 (Tex. Crim. App. 2016).
As charged in the indictment and submitted in the jury charge, the State was required to prove that, on or about April 16, 2012, Rios intentionally or knowingly caused the penetration of the sexual organ (Count I) and anus (Count II) of M.B., a child younger than 6 years of age, by his male sexual organ. TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(i) (West Supp. 2017). The element of penetration of the female sexual organ is satisfied when the evidence shows contact with the female sexual organ which "could reasonably be regarded by ordinary English speakers as more intrusive than contact with her outer vaginal lips." Vernon v. State, 841 S.W.2d 407, 409 (Tex. Crim. App. 1992). Penetration of the vaginal canal is not necessary. See id.
After holding a pretrial hearing, the trial court determined that M.B., who was eight years old at the time, was competent to testify. At trial, M.B., who had turned nine years old, began by testifying that she remembered something happening with her grandpa that "he shouldn't be doing . . . to me" when she was little. M.B. testified that on the day Uncle Michael walked in the bedroom and then grabbed her hand and took her away, her grandpa had first walked into the bedroom alone and closed the door after she finished taking a shower. M.B. already had her clothes on and was sitting on the bed putting on her shoes. She stated her grandpa suddenly appeared in the bedroom, which shocked her, and then he "got beside the bed right next to me" and "got real close to me." Her grandpa was about to leave the room when her Uncle Michael walked in, grabbed M.B.'s hand, and ran her over to her other uncle's house. M.B. stated that Michael was "probably shocked" because he knew grandpa "wasn't supposed to be doing this." M.B. testified that she did not know the word for what grandpa was doing that was shocking, but it starts with an "R." M.B. stated that parts of grandpa's body were touching parts of her body "a little bit," which made her feel "kind of scared and shocked." When Uncle Michael walked in, their body parts were no longer touching. After Uncle Michael took her over to her other uncle's house, her mom arrived and took her to the hospital where she told the doctor everything her grandpa had done to her and got a medical exam.
M.B. also testified that she remembered another time when she fell asleep on the couch at her grandpa's house, and woke up to see him watching a movie showing two people on top of each other with their clothes off. The prosecutor asked whether "those things that the people were doing, did grandpa ever do to you?" M.B. answered, "Sometimes." M.B. explained that she calls her private part her "vajayjay," and calls a boy's private part his "pee." She stated that both a vajayjay and a pee are used for going to the bathroom. During her direct examination, M.B. testified as follows:
Q. Has anyone ever done anything to your vajayjay that they shouldn't be doing?
A. Yes.
Q. And who [is] that?
A. Grandpa.
Q. And what did he do?M.B. further testified that she was four or five years old when her grandpa did these things to her, and that no one else besides her grandpa ever touched her vajayjay with his pee part.
A. He - - I don't know the word for it.
Q. What part of his body touched your vajayjay?
A. His pee.
Q. And when his pee touched your vajayjay, how did that make you feel?
A. It made me feel uncomfortable.
***
Q. Would grandpa do this to you a lot or a little bit?
A. Sometimes.
Q. Sometimes. Was it more than once?
A. I think so, yes.
Q. [M.B.], when he touched your vajayjay with his pee part, was that over the clothes or under the clothes?
A. I'm not sure.
Q. You're not sure. Did you feel anything in your vajayjay?
A. Yes.
Q. You did, okay. Do you remember feeling it more than once?
A. Yes.
Q. Now, all of these times that we're talking about . . . [w]ere they on the same day Michael came in the room or different days?
A. Different.
In his cross-examination of M.B., Rios highlighted the differences between her trial testimony and some of her prior statements. M.B. agreed there had been times when she did not want to talk about the incident in question and she may have said she did not remember. M.B. also conceded not wanting her mother to find out, explaining that she was "a little frightened" because her grandpa had told her not to tell her mother. The SANE nurse also noted that M.B. whispered at times when describing what Rios did to her, and told the nurse she could not tell her mother. In response to Rios's question whether M.B. had told the counselor everything she testified about at trial, M.B. stated that "some of it just popped in my head" when she came into the courtroom that day because she remembered being in the courtroom before.
With respect to Count II (penetration of anus), Rios stresses on appeal that M.B. answered "No" when asked whether her grandpa touched any other part of her body besides her "vajayjay" with his "pee." However, Rios discounts the evidence provided by the SANE nurse, Jennifer Degner. Degner testified she took a history from M.B., who was five years old at the time, during which M.B. stated, "My grandpa watches movies where they have sex, and then he has sex with me. His part where he goes pee-pee from goes where I go pee-pee from and in my butt." When asked whether grandpa put his pee-pee part inside or outside her body, M.B. replied "inside;" she also confirmed that it happened inside her panties, not on the outside. Degner therefore marked on the forensic checklist that M.B. reported both genital and anal penetration. M.B.'s medical records from the SANE exam and the forensic notes of M.B.'s statements made by Degner were admitted as State Exhibit No. 8. Degner testified that it "can be very normal" for a child who has been penetrated vaginally and/or anally to still have a normal physical exam, with no evidence of trauma.
It is the role of the jury to resolve contradictions in a witness's testimony. Beltran v. State, 517 S.W.3d 243, 250 (Tex. App.—San Antonio 2017, no pet.). In evaluating the sufficiency of the evidence, we defer to the jury's assessment of the witnesses' credibility and resolution of conflicts in the evidence. Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010); Martinez v. State, 524 S.W.3d 344, 349 (Tex. App.—San Antonio 2017, pet. ref'd) (noting it was within fact finder's province to determine the credibility of the child victim, her mother, and the SANE nurse, and to resolve any inconsistencies between the witness's testimony). A child complainant's testimony in a sexual assault case may be sufficient by itself to support a conviction. Garcia v. State, 563 S.W.2d 925, 928 (Tex. Crim. App. [Panel Op.] 1978). We disagree with Rios that M.B.'s testimony was so internally inconsistent and contradictory to the other evidence that a reasonable fact finder could not have believed M.B.'s testimony. We therefore conclude that, based on M.B.'s testimony and the testimony and notes of the SANE nurse, there is sufficient evidence that Rios penetrated both M.B.'s sexual organ and her anus with his sexual organ.
Prior Indecency by Contact Offense
Under his third issue, Rios asserts the trial court erred in admitting evidence that he committed indecency by contact against R.B. in 1987. Rios contends the evidence of the extraneous offense was insufficient to satisfy the standard required for admission under article 38.37. See TEX. CODE CRIM. PROC. ANN. art. 38.37, § 2-a(1) (West Supp. 2017) (requiring the trial court to make a pre-admission determination that the evidence sought to be admitted at trial is "adequate to support a finding by the jury that the defendant committed the separate offense beyond a reasonable doubt"). We review the admission of evidence for an abuse of discretion. Johnson v. State, 490 S.W.3d 895, 908 (Tex. Crim. App. 2016).
As required, the trial court held a pretrial hearing to determine whether R.B. would be permitted to testify about the sexual conduct Rios engaged in with her. See TEX. CODE CRIM. PROC. ANN. art. 38.37, § 2-a(2) (West Supp. 2017). At the conclusion of the hearing, Rios argued the extraneous offense evidence was not credible, but the trial court ruled that R.B. would be allowed to testify about the indecency by sexual contact offense committed against her. Rios did not object to the trial court's ruling and did not object during trial when R.B. testified that, when she was very young, Rios would watch pornographic movies, touch her with his male sexual organ, and ejaculate on her vagina and her "bottom." Therefore, Rios did not preserve any error in the admission of the evidence because he failed to raise an objection. See TEX. R. APP. P. 33.1(a); see also Gauna v. State, 534 S.W.3d 7, 10-11 (Tex. App.—San Antonio 2017, no pet.) (holding objection during article 38.37 hearing was not sufficient, and defendant was required to renew his objection when the witness testified or obtain a running objection). Moreover, any error in the admission of the evidence was cured because the same evidence was admitted through the SANE nurse's testimony without objection. Valle v. State, 109 S.W.3d 500, 509 (Tex. Crim. App. 2003); Gauna, 534 S.W.3d at 10. Accordingly, we hold Rios failed to preserve this issue for review.
Correction to Judgments
Finally, Rios asserts the judgments incorrectly state that he is a repeat offender and that he pled true to an enhancement allegation. As the State points out, the clerical errors in the judgments with respect to Rios pleading true to an enhancement allegation, and a finding of true being entered, were already corrected by the trial court's execution of two judgments nunc pro tunc on October 17, 2017. However, the judgments nunc pro tunc did not address the inclusion of the term "Repeater" in the offense of conviction section of the judgments. Therefore, we modify the judgments to delete the term "Repeater" from the offense of conviction.
CONCLUSION
Based on the foregoing reasons, we overrule Rios's issues on appeal, with the exception of the correction of a clerical error stating that Rios was convicted as a "Repeater," which is deleted from the judgments. As modified, we affirm the trial court's judgments.
Rebeca C. Martinez, Justice DO NOT PUBLISH