Opinion
No. 05-15-00497-CR
05-26-2016
HECTOR RIVAS-MACIAS, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 397th Judicial District Court Grayson County, Texas
Trial Court Cause No. 064769
MEMORANDUM OPINION
Before Justices Fillmore, Stoddart, and Schenck
Opinion by Justice Schenck
Hector Rivas-Macias appeals his conviction for indecency with a child by sexual contact, challenging the legal sufficiency of the evidence to support his conviction. We affirm the trial court's judgment. Because all issues are settled in law, we issue this memorandum opinion. TEX. R. APP. P. 47.4.
BACKGROUND
On April 4, 2014, appellant's son invited a nine-year-old girl, N.A.S., and her siblings over to his house to play on a trampoline in the backyard. At trial, N.A.S. told the following story about her encounter with appellant. While she and her siblings were playing on the trampoline she became thirsty so she went up to the house and knocked on the back door to get some water. Appellant answered the door. She did not know appellant and this was her one and only encounter with him. Appellant invited her into the house and gave her a bottle of water and some bread. While she was standing in the kitchen appellant came up behind her, touched her hair, told her she looked forty, and licked inside of her ear. Appellant also touched her with his hand over her clothing on her vagina and her buttocks. Appellant told her not to tell anyone about their encounter. She was, as she related, "freaked out" and ran home and told her mother what had happened. Her mother called the police.
Officers Rhodes and Gargasz responded to the call. At trial, Officer Rhodes testified to the following. He and Officer Gargasz spoke with N.A.S. and her mother and then went to appellant's house to speak to with him. Appellant confirmed to them that he opened the door and gave N.A.S. water and bread, but denied any inappropriate touching. He indicated he may have touched her on the hand or head in the process of giving her food and water. Although appellant responded to their questions in English, at some point during the questioning, he told them he did not understand English. The interview was then suspended until a translator could be present.
A week later, Detective Nordhoff, aided by Officer Cuellar, who speaks Spanish, questioned appellant. Appellant offered a different recollection of his encounter with N.A.S. during this interview. At trial, Detective Nordhoff testified to the following. Appellant told him that on the day in question he rushed out of the house after hearing a neighbor's vicious dog barking because he was concerned that it might attack his three-year-old daughter. Appellant claimed he found a child near the fence separating his property from the neighbor's, and picked her up and carried her to safety. He indicated the child was N.A.S., not his daughter. Appellant acknowledged that he may have carried her in a manner where he would have touched her buttocks. He stated he gave N.A.S. bread and water because she was scared and said N.A.S. never came into the house. When he was asked about licking N.A.S.'s ear, appellant denied having done so and indicated if his saliva was detected on N.A.S. it was probably from water that dripped out of his mouth when he picked her up.
In addition to Officer Rhodes and Detective Nordhoff's testimony, recordings of their interviews of appellant were admitted into evidence and published to the jury. Appellant's trial counsel cross-examined Officer Rhodes and Detective Nordhoff on the lack of DNA and fingerprint testing. They explained why such testing was not done in a case like this, which is because it is hard to get fingerprints off of clothing and the limited duration of the contact would not likely lead to the presence of bodily fluid that could be tied to the event.
Appellant testified at trial. He recounted essentially what he told Detective Nordhoff during the continuation of his interview. While appellant claimed he feared for the child's safety, he admitted that at the time he allegedly ran to save N.A.S. he knew the dog was on a chain and could not come into his yard. He also admitted that his arm was between N.A.S.'s legs. Appellant testified that he was never sexually aroused and did not grab N.A.S. to excite himself sexually.
N.A.S.'s mother testified as the "outcry" witness at trial. She confirmed that N.A.S.'s trial testimony substantially conformed to the story N.A.S. told her on April 4, 2014. In addition, N.A.S. and her twin sister refuted appellant's testimony concerning the alleged need to rescue her from a dog or of carrying her to safety.
The jury found appellant guilty of indecency with a child. The trial court sentenced appellant to 12 years' imprisonment.
On appeal, appellant challenges the legal sufficiency of the evidence to support his conviction.
STANDARD OF REVIEW
We review the sufficiency of the evidence under the standard set out in Jackson v. Virginia, 443 U.S. 307 (1979). Matlock v. State, 392 S.W.3d 662, 667 (Tex. Crim. App. 2013). We examine all the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319; Matlock, 392 S.W.3d at 667. This standard recognizes "the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Jackson, 443 U.S. at 319. As the fact finder, the jury is entitled to judge the credibility of the witnesses, and can choose to believe all, some, or none of the testimony presented by the parties. Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991). We defer to the jury's determinations of credibility, and may not substitute our judgment for that of the jury. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). When there is conflicting evidence, we must presume the factfinder resolved the conflict in favor of the verdict, and defer to that resolution. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).
In our review, we consider both direct and circumstantial evidence and all reasonable inferences that may be drawn from the evidence. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). The standard of review is the same for both direct and circumstantial evidence cases. Kuciemba v. State, 310 S.W.3d 460, 462 (Tex. Crim. App. 2010). Each fact need not point directly and independently to the guilt of the accused, as long as the cumulative force of all the evidence, when coupled with reasonable inferences to be drawn from that evidence, is sufficient to support the conviction. Thomas v. State, 444 S.W.3d 4, 8 (Tex. Crim. App. 2014). Circumstantial evidence is as probative as direct evidence and, alone, can be sufficient to establish guilt. Hooper, 214 S.W.3d at 13. Evidence is sufficient if "the inferences necessary to establish guilt are reasonable based upon the cumulative force of all the evidence when considered in the light most favorable to the verdict." Wise v. State, 364 S.W.3d 900, 903 (Tex. Crim. App. 2012).
DISCUSSION
A person commits the offense of indecency with a child by engaging in sexual contact with a child younger than seventeen years of age. TEX. PENAL CODE ANN. § 21.11(a)(1) (West 2011). "Sexual contact" includes touching by a person, including touching through clothing, of the genitals of a child with the intent to arouse or gratify the sexual desire of any person. Id. § 21.11(c)(1). The testimony of a child victim alone can be sufficient to support a conviction for indecency with a child. TEX. CODE CRIM. PROC. ANN. art. 38.07 (West Supp. 2015) (A conviction under Chapter 21, Section 22.011, is supportable on the uncorroborated testimony of the victim of the sexual offense if the victim informed any person, other than the defendant, of the alleged offense within one year after the date on which the offense is alleged to have occurred). Here, N.A.S. informed her mother of the alleged offense on the very date on which the offense is alleged to have occurred.
Whether the person possessed the requisite intent to commit an offense is most often proven through circumstantial evidence surrounding the crime. Sholars v. State, 312 S.W.3d 694, 703 (Tex. App.—Houston [1st Dist.] 2009, pet. ref'd). The jury may infer the requisite intent from the acts, words, and conduct of the accused. Conner v. State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001). In the context of indecency with a child, the jury can infer the intent to arouse or gratify from conduct alone. Scott v. State, 202 S.W.3d 405, 408 (Tex. App.—Texarkana 2006, pet. ref'd). "No oral expression of intent or visible evidence of sexual arousal is necessary." Id. at 408.
At trial, using an anatomically correct doll, N.A.S. indicated appellant touched her vagina with his hand and testified that he did so over her clothing. She confirmed verbally that where she was pointing was where "she goes pee-pee." See Thomas v. State, 399 S.W.2d 555, 556 (Tex. Crim. App. 1966) (testimony that the accused touched complainant's "private" was sufficient to sustain allegation that accused touched child's vulva); Bryant v. State, 685 S.W.2d 472, 474 (Tex. App.—Fort Worth 1985, pet. ref'd) (testimony given with aid of an anatomically correct doll, that the defendant put his hand underneath her underpants and touched her between her legs was sufficient to prove requisite element of a touching of the vagina of the victim). We conclude N.A.S.'s testimony was sufficient to support the jury's finding that appellant touched her vagina. See TEX. CODE CRIM. PROC. ANN. art. 38.07; Proctor v. State, 356 S.W.3d 681, 685 (Tex. App.—Eastland 2011, pet. ref'd).
Next, we consider whether the evidence is legally sufficient to support a finding that appellant touched N.A.S. with the intent to sexually arouse or gratify. While appellant testified that he did not touch N.A.S. with the specific intent to arouse or gratify, the jury, as the judge of the credibility of the witnesses, could choose to believe all, some, or none of appellant's testimony. Chambers, 805 S.W.2d at 461. They chose not to believe him. We conclude that based on appellant's conduct in touching N.A.S., in licking her ear, and his remarks about how old she looked, and the surrounding circumstances, a rational factfinder could have concluded that appellant had the specific intent to arouse or gratify his own sexual desire at the time he touched N.A.S.'s vagina. See Rodriguez v. State, No. 05-14-01225-CR, 2015 WL 8729283, at *4 (Tex. App.—Dallas Dec. 11, 2015, no. pet.).
Viewing the evidence in the light most favorable to the verdict, we conclude a rational jury, as the sole judge of the credibility of the witnesses and the weight to be given their testimony, could have found beyond a reasonable doubt that appellant committed the offense of indecency with a child, and that in reaching its verdict, the jury did not impermissibly speculate based on circumstantial evidence.
As to appellant's complaints about the lack of DNA and fingerprint evidence, appellant fails to demonstrate how the lack of such evidence affects the sufficiency of the evidence to support his conviction. Given N.A.S.'s testimony and the corroborating contemporaneous outcry evidence, forensic evidence of the type appellant cites was not necessary to support a verdict of guilty.
We resolve appellant's sole issue against him.
CONCLUSION
We affirm the trial court's judgment.
/David J. Schenck/
DAVID J. SCHENCK
JUSTICE DO NOT PUBLISH
TEX. R. APP. P. 47 150497F.U05
JUDGMENT
On Appeal from the 397th Judicial District Court, Grayson County, Texas
Trial Court Cause No. 064769.
Opinion delivered by Justice Schenck. Justices Fillmore, and Stoddart participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered this 26th day of May, 2016.