Nos. 05-04-01498-CR, 05-04-01499-CR
Opinion Filed September 12, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 203rd Judicial District Court, Dallas County, Texas, Trial Court Cause Nos. F03-71824-VP, F03-71825-VP. Affirm.
Before Justices MORRIS, WRIGHT, and RICHTER.
Opinion By Justice RICHTER.
A jury convicted Juan Jesus Rodriguez of two counts of aggravated sexual assault of a child under fourteen. During the punishment phase, appellant pleaded not true to two enhancement paragraphs in each case. The trial court found the enhancement paragraphs true and assessed punishment at thirty-five years' imprisonment in each case. In a single point of error, appellant contends the evidence is factually insufficient to support the conviction. We affirm the trial court's judgments.
Background
Y.R., who was eighteen years old at the time of trial, testified that she and her two sisters, M.R. and B.N., all have different fathers. Appellant is M.R.'s father. Appellant lived with Y.R. and her mother when Y.R. was five years old and until she was nine. Y.R. was five years old when M.R. was born. Y.R. testified that during the time she lived with appellant, he touched her vagina with his hands and his mouth over fifty times. Appellant was alone with Y.R. whenever Y.R.'s mother was at work. On one occasion when Y.R. was six or seven years old, she was in her mother's bed under the covers. Appellant removed her panties, touched her vagina with his hand, then put his mouth on her vagina. After a few moments, appellant raised up from under the covers and made Y.R. touch his penis. Appellant then tried to put his penis into Y.R.'s vagina. Y.R. told appellant "it hurt," and started to cry. Appellant said, "It's okay. It's okay. I won't do that." At other times, appellant would ask Y.R. to sit on the sofa with him. When she sat down, appellant would either remove Y.R.'s panties or pull them to the side and touch her vagina with his hand. Y.R. testified that when she played a "game" with appellant, he would put his mouth on her vagina. Appellant laid on the floor on his stomach and told Y.R. to run over his back. Appellant would either take off Y.R.'s panties or tell her to take them off before they played the game. When Y.R. ran across his back, appellant would grab her ankles, pull her legs apart, and put his mouth on her vagina. Y.R. testified that when they played this game, she repeatedly ran over appellant's back and he would pull her close to his face and put his mouth on her vagina each time. Y.R. testified appellant also made her touch his penis at least ten different times. The last time appellant touched Y.R., she was ten years old and M.R. was five. By this time, appellant and Y.R.'s mother had separated. Y.R. and M.R. had gone to appellant's house to visit. Appellant told the girls to come into the bedroom. While M.R. played, appellant made Y.R. get on the bed. Appellant put his mouth on Y.R.'s vagina. Y.R. testified she never told anyone about the sexual abuse because appellant had told her not to tell or to let anybody else do that to her, and she was afraid of appellant. Y.R. testified that when she was fifteen years old, she told her boyfriend that appellant had sexually abused her when she was younger. At about that time, Y.R. was also seeing a counselor for issues unrelated to the sexual abuse. Y.R. testified that initially she told the counselor she had not been sexually abused. After seeing the counselor for almost a year, Y.R. told the counselor that appellant had sexually abused her from the time she was six until she was ten. Y.R. then told her mother and M.R. about the abuse. Patricia Nava testified that Y.R. was her eldest daughter. M.R. was born when Y.R. was five years old. Appellant is M.R.'s father. Nava testified she and appellant lived together off and on from 1989 to 1993. During that time, Nava worked two jobs every weekday. She cleaned houses from 8:00 a.m. to 12:00 p.m. and worked as a secretary for a medical center from 3:00 p.m. to 11:00 p.m. Appellant watched the children when Nava was working. In 2003, when Y.R. was fifteen, Nava met with Y.R.'s counselor. During that meeting, Y.R. told Nava that appellant had sexually abused her when Nava went to work. The counselor then called M.R. into the room and had Y.R. tell her about the sexual abuse by appellant. M.R. was upset by the allegations against appellant. Nava testified she allowed M.R. to visit appellant even though Child Protective Services (CPS) had told her not to because M.R. loved her father and was getting too hard to handle. Jill Stancil Woicik, a counselor at Buckner Children and Family Services, testified she began seeing Y.R. in January 2002. During the initial assessment interview, which consisted of gathering history and asking standard questions, Woicik asked Y.R. if she had been physically or sexually abused. Y.R. said no. After about one year in counseling, Y.R. told Woicik about previous sexual abuse by appellant. Y.R. stated appellant had touched her sexually when she was six years old until she was nine, and that appellant touched her vagina with his hand and mouth and tried to penetrate her vagina with his penis on one occasion. Y.R. told Woicik that she was concerned for her sister, but she asked Woicik not to tell anyone. Woicik told Y.R. that she had a duty to report the allegations to CPS and that Y.R.'s mother would have to be told. Woicik testified it was common for children of sexual abuse to not disclose the abuse until years later. Detective Patricia Sanmartino testified she investigated the sexual abuse allegations at the Dallas Children's Advocacy Center (DCAC) on March 15, 2003 when Y.R. was sixteen years old. Sanmartino testified that Y.R. provided sensory details of the offenses and stated the sexual abuse occurred at least once a week from the age of five to seven or eight. Sanmartino spoke with Nava and Woicik after interviewing Y.R. Sanmartino testified she believed Y.R.'s allegations because Y.R. was able to provide sensory details about the offenses, and that children often delayed telling anyone about sexual abuse for several years. M.R. testified on appellant's behalf. She was thirteen years old at the time of trial. M.R. testified she found out about the sexual abuse allegations in Woicik's office. After that meeting, she and Y.R. argued about Y.R.'s allegations. M.R. testified that Y.R. was not a person who told the truth, and M.R. did not remember telling a CPS worker that she believed Y.R. because Y.R. would not lie about something that serious. The State called Rubi Rosales-Salazar in rebuttal. Rosales-Salazar testified that at the time she talked with Nava, Y.R., and M.R. about the sexual abuse allegations, she worked as a high-risk investigator for CPS. During her interview, Y.R. provided details of sexual abuse by appellant. Throughout the interview, M.R. repeatedly said that appellant was a good father, but she believed her sister because Y.R. would not lie about something so serious. Applicable Law
In reviewing the factual sufficiency of the evidence, we view all of the evidence in a neutral light to determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004); Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000). The fact finder is the exclusive judge of the witnesses' credibility and the weight to be given to their testimony. Harvey v. State, 135 S.W.3d 712, 717 (Tex.App.-Dallas 2003, no pet.). To obtain convictions for aggravated sexual assault of a child younger than fourteen years, the State was required to prove beyond a reasonable doubt that appellant intentionally and knowingly caused the female sexual organ of Y.R., a child younger than fourteen years of age and who was not appellant's spouse, to contact appellant's mouth, and that he caused the penetration of Y.R.'s female sexual organ by his sexual organ. See Tex. Pen. Code Ann. § 22.021(a)(1)(B)(i), (iii) (Vernon Supp. 2004-05). The testimony of a child victim alone is sufficient to support a conviction for aggravated sexual assault of a child. See Tex. Code Crim. Proc. Ann. art. 38.07(a) (Vernon Supp. 2004-05); Tear v. State, 74 S.W.3d 555, 560 (Tex.App.-Dallas 2002, pet. ref'd). Discussion
Appellant argues the evidence is factually insufficient because Y.R.'s testimony was not credible and there was no physical evidence presented. Appellant asserts that because Y.R. delayed her outcry for more than five years, M.R. testified that Y.R. was not truthful, and Nava continued to allow M.R. to visit appellant even after the allegations were made, the evidence is factually insufficient to support the conviction. The State responds that the evidence is factually sufficient to support the conviction because several witnesses corroborated Y.R.'s testimony that appellant sexually abused her. There was conflicting evidence in this case. Y.R. testified appellant sexually abused her repeatedly over a period of five years, and gave details of appellant's acts. Woicik testified that Y.R. denied any sexual abuse during the history-gathering portion of their first session, but after almost one year of therapy sessions, Y.R. said appellant had sexually abused her. M.R. denied telling a caseworker that she believed Y.R.'s allegations. However, Rosales-Salazar testified that during her interview, M.R. repeatedly said she believed Y.R. because Y.R. would not lie "about something so serious." Appellant essentially asks us to believe the evidence contrary to the verdict. However, the jury was the sole judge of the weight and credibility of the witnesses and their testimony, and it was the jury's function to resolve any conflicts in the evidence. See Cain v. State, 958 S.W.2d 404, 408 (Tex.Crim.App. 1997); see also Empty v. State, 972 S.W.2d 194, 196 (Tex.App.-Dallas 1998, pet. ref'd). Having reviewed all of the evidence under the proper standard, we conclude it is factually sufficient to support the conviction. See Zuniga, 144 S.W.3d at 484. We overrule appellant's sole point of error. We affirm the trial court's judgments.