No. 05-08-00408-CR
Opinion issued May 29, 2009. DO NOT PUBLISH Tex. R. App. P. 47.
On Appeal from the Criminal District Court Dallas County, Texas, Trial Court Cause No. F06-38883-RH.
Before Chief Justice THOMAS and Justices FITZGERALD and LANG. Opinion By Justice FITZGERALD.
KERRY P. FITZGERALD, Justice.
A jury convicted Jose Felipe Serrano of aggravated sexual assault of a child younger than fourteen years and assessed punishment at five years' imprisonment. In a single point of error, appellant contends the evidence is factually insufficient to support the conviction. We affirm.
Applicable Law
In a factual sufficiency review, an appellate court views all of the evidence in a neutral light to determine whether the fact-finder's verdict of guilt was rationally justified. See Roberts v. State, 220 S.W.3d 521, 524 (Tex.Crim.App.), cert. denied, 128 S.Ct. 282 (2007); see also Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App. 2006), cert. denied, 128 S.Ct. 87 (2007). Unless the record clearly reveals a different result is appropriate, we must defer to the fact-finder's determination concerning what weight to give to contradictory testimony. Lancon v. State, 253 S.W.3d 699, 705 (Tex.Crim.App. 2008). To obtain a conviction for aggravated sexual assault of a child, the State was required to prove beyond a reasonable doubt that appellant intentionally and knowingly caused the sexual organ of L.S., a child younger than fourteen years, to contact appellant's mouth. See Tex. Penal Code Ann. § 22.011(a)(2)(C) (Vernon Supp. 2008). The testimony of a child victim alone is sufficient to support a conviction. See Tex. Code Crim. Proc. Ann. art. 38.07 (Vernon 2005); Tear v. State, 74 S.W.3d 555, 560 (Tex.App.-Dallas 2002, pet. ref'd). Evidence Presented
L.S., the complainant, was ten years old at trial. L.S. testified appellant is her uncle, and she lives with her mother ("Mother" hereinafter) and three younger siblings in an apartment. Sometimes appellant stayed overnight with them, sleeping in Mother's room or on a couch in the living room. L.S. testified when she was eight years old, appellant touched her "middle part" with his mouth and hand. L.S. pointed to the vaginal area on a drawing of a nude girl to explain where her "middle part" was located. L.S. and her siblings were in the living room watching television with appellant. Mother had gone to bed because she did not feel well. L.S. was lying on the floor with a SpongeBob chair. L.S. awoke when she felt appellant lift her younger sister off the floor beside her and put her to bed in the bedroom. Appellant also carried her two brothers from the couch to the bedroom. When L.S. started to get up to go to bed, appellant told her to stay and watch television with him. L.S. lay back on the floor. L.S. testified that at the time of the sexual assault, she was wearing a T-shirt, a skirt, and panties, and appellant was wearing "boxers." Appellant lay on the floor beside her and "touched my middle part with his mouth," and his tongue went "inside my middle part." L.S. testified she wanted to scream, but Mother came into the room. Appellant must have heard Mother coming, because he jumped on the couch when she entered the room. L.S. left with Mother and went into Mother's bedroom. She told Mother that appellant touched her with his mouth and hands. She also told Mother that appellant had touched her middle part over her clothes on two other occasions. L.S. did not tell anyone about those incidents because she was afraid. Mother called the police. When the officers arrived, they collected L.S.'s clothing and the SpongeBob chair. After the officers left, Mother took her to see a doctor. L.S. testified she did not remember talking to anyone else about what appellant had done to her. L.S. further testified she never told her siblings or anyone that she made up the allegations against appellant or that Mother made her say appellant had abused her. Mother testified she had been separated from L.S.'s father for about four years. She and appellant had been seeing each other for eight months prior to L.S.'s outcry, and sometimes appellant stayed overnight at her apartment. On September 22, 2006, Mother went to bed early because she was not feeling well. Appellant said he would watch the children because they were watching a movie in the living room. Mother awoke around midnight and went to the living room to check on the children. Mother saw L.S. lying on the floor with her head on the SpongeBob chair and appellant "stood up real fast" and sat on the edge of the couch. Appellant appeared nervous and was sweating. Mother removed the blanket covering L.S. and saw L.S.'s panties were pulled down to her feet. Mother asked L.S. to pull up the panties and go with Mother to Mother's bedroom. L.S. began crying and shaking. Once they were in Mother's bedroom, L.S. said her "uncle was touching her with his mouth and his hands." L.S. told Mother that appellant had "done this" twice before. Mother went to the living room and said to appellant, "[W]hy have you done this?" Appellant said, "[T]hat's nothing," then he left the apartment. Mother called the police. After officers arrived and collected L.S.'s clothing, Mother took L.S. to the hospital for an examination. Mother denied that she argued with appellant about another woman before appellant sexually assaulted L.S. Mother explained that she visited appellant in jail about eight times because she wanted to know why he had done "this" to her daughter, but appellant would not answer her questions. Officer Travis Hammond testified he responded to Mother's call in reference to a sexual assault of an eight-year-old child. Mother was "visible upset and a little bit shaken." L.S. would not answer any of Hammond's questions. She sat on her bed clutching a blanket to her chest. L.S. was "extremely scared and frightened." Mother stated appellant was the suspect, and she gave an address where he might be found and a detailed description of his vehicle. Hammond testified he collected the clothing L.S. had been wearing during the assault, two blankets, and a SpongeBob chair. An analysis of the collected items showed a match between genetic materials recovered from L.S.'s panties and appellant's genetic markers. Officer Landon Rollins testified he located appellant's truck in front of a house. Appellant's brother, Jose Guadalupe Serrano ("JGS"), answered Rollins's knock on the front door. JGS identified himself and told Rollins that he did not know if appellant was in the house. He gave Rollins consent to search the house. Rollins found appellant hiding under blankets inside a closet. Appellant identified himself and said he lived there. Rollins testified the location where appellant was hiding was a "small space" that led to the attic; there was no bed in that space. Rollins arrested appellant and transported him to jail. Barbara Banda is a forensic interviewer for the Dallas Children's Advocacy Center (DCAC). Banda testified she interviewed L.S. on September 26, 2006. Banda had conducted over 260 forensic interviews prior to interviewing L.S. During the interview, L.S. never stated appellant's mouth contacted her sexual organ. L.S. said "I don't remember" to most of the questions Banda asked. L.S. denied that appellant touched her "private part" with his mouth. Banda testified L.S. talked about three occasions when "her uncle" sexually abused her. On the last occasion, L.S. stated she was asleep. She awoke and her uncle was touching her "private" with his hand. She could feel his fingers. Her panties were pulled down. Mother entered the room and asked her to go to Mother's bedroom. L.S. said she told Mother about the abuse, and Mother called the police. Banda also testified child sexual abuse victims do not always tell about every detail or abusive situation, and it is common for children to not disclose abuse when they talk to her but later reaffirm that the abuse had occurred. Cindy Alexander, clinical director at DCAC, testified about the meaning of "outcry" and "disclosure" in child sexual abuse cases. Children respond differently in sexual abuse cases depending upon the severity of the abuse and the nature of the relationship between the victim and the perpetrator. Alexander testified that some children have difficulty disclosing abuse and will delay telling anyone. When they finally tell someone about the abuse, they often tell a part of what happened to test how people will react. JGS, appellant's niece, and two nephews testified on his behalf. JGS testified appellant was living with him at the time of the alleged sexual assault. Appellant was usually at home every day. In the early morning hours on September 23, 2006, several police officers knocked on his front door and asked for appellant. Appellant slept on the second floor of the house in a small room that had a large closet. The room had a bed in it. JGS testified appellant was in the house when JGS, his wife, and children went to bed that previous night, but he did not know where appellant was after he went to sleep. L.S.'s two brothers and one sister testified L.S. told them the allegations against appellant were "not true" and that Mother told L.S. to say appellant sexually abused her. The three siblings all testified that even though they were told this by L.S. around December, they did not contact the police or the district attorney's office with that information. Appellant denied putting his mouth on L.S.'s private part or touching her in any other inappropriate manner. Appellant testified that on the day of the alleged sexual assault, he was in his brother's house and did not even go to Mother's apartment. Appellant admitted he had a relationship with Mother and sometimes watched her four children while she was at work. He sometimes stayed overnight with Mother, but he slept in Mother's room. On Thursday, September 21, 2006, he picked up Mother's children from school, took them to Mother's apartment, cooked dinner for them, and stayed with them until Mother got home from work. He stayed with Mother until midnight, then went home to JGS's house. On Friday, September 22, 2006, he returned from work at about 4:00 p.m. At about 8:00 p.m., he went to a Bible study meeting in a the apartment of a woman who lived across from Mother. He left the meeting at about 11:00 p.m. He saw Mother through her apartment window, but he did not know if Mother saw him. When he got back to JGS's house, he received a phone call from Mother, who was upset at seeing him leaving the other woman's apartment. Mother said, "[Y]ou going to pay for it." Appellant testified he went to sleep in his bed at about 11:30 p.m. Sometime during the night, police woke him and arrested him. Appellant denied he was hiding from the officers or that he was in a closet under blankets. Appellant described his room as "small" but with a bed, computer, and a closet inside. Discussion
Appellant contends the evidence is factually insufficient because L.S.'s testimony was not credible. Specifically, appellant argues L.S. never mentioned mouth contact to any medical personnel, police officers, or forensic interviewer; L.S. specifically denied mouth contact when asked by the forensic interviewer; and L.S.'s siblings testified she told them Mother told her to accuse appellant. The State responds that the evidence is factually sufficient to support appellant's conviction. There was conflicting evidence presented to the jury. However, courts give wide latitude to the testimony of child victims of sexual abuse. See Villalon v. State, 791 S.W.2d 130, 133 (Tex.Crim.App. 1990). The jury heard L.S.'s testimony describing appellant touching her "middle part" with his mouth and hands. See id. They also heard testimony from Banda and Alexander detailing that some child sexual abuse victims do not tell every detail about the abuse and delay disclosing every incident. The jury also heard appellant's testimony denying L.S.'s allegations, and L.S.'s siblings' testimony that L.S. said her accusations against appellant were not true. It was the jury's function to resolve the conflicts in the evidence, and the jury was free to accept or reject any or all of the evidence presented by either side. See Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Wesbrook v. State, 29 S.W.3d 103, 111 (Tex.Crim.App. 2000). The jury may choose to believe some witnesses and disbelieve others. See Margraves v. State, 34 S.W.3d 912, 919 (Tex.Crim.App. 2000). The jury's determination to believe L.S.'s and Mother's accounts, and to disbelieve the conflicting accounts of appellant and L.S.'s siblings, does not render the evidence factually insufficient. Viewed under the proper standard, we conclude the evidence is factually sufficient to support the jury's finding that appellant committed the offense. See Roberts, 220 S.W.3d at 524. We overrule appellant's sole point of error. We affirm the trial court's judgment.