Opinion
08-22-00062-CR
01-24-2023
MARIO H. VIZCAINO, Appellant, v. THE STATE OF TEXAS, Appellee.
Do Not Publish
Appeal from the 109th Judicial District Court of Andrews County, Texas (TC# 8148)
MEMORANDUM OPINION
LISA J. SOTO, JUSTICE
A jury convicted Appellant, Mario H. Vizcaino, of continuous sexual abuse of a child or children under fourteen years of age and assessed punishment of fifty year's imprisonment. Appellant raises one issue challenging his conviction-that the evidence is legally insufficient to support his conviction for the charged offense. For the following reasons, we disagree and affirm the trial court's judgment.
I. Factual and Procedural Background
The State indicted Appellant for the offense of continuous sexual abuse of children under the age of fourteen, alleging that he had sexually abused his four granddaughters under the age of fourteen over a period longer than thirty days. Each child's testimony is addressed below.
In order to protect the victims' identities, we refer to them by initials rather than by name. See Tex. R. App. P. 9.10.
S.G., who was fifteen years old at the time of trial, testified as follows. She moved in with Appellant and her grandmother, mother, siblings, aunt, and cousins in Andrews, Texas when she was about three years old. S.G. related that when she was four or five years old, Appellant would rub his "genitals" against her "genitals" when he had her sitting in a rocking chair watching cartoons with other cousins and siblings in the living room. S.G. recalled Appellant's genitals felt like a "bump" that contacted her "genital area."
Another incident occurred around lunchtime one day in the spring or summer when S.G. was still four or five years old. On that day, S.G., her cousins and siblings, and Appellant were sitting in the living room of their house when Appellant asked her if she wanted to go into a bedroom. S.G. agreed. After they went into the other room, Appellant laid S.G. on her back, spread her legs open, and rubbed his "genitals" on her "genitals" while they were clothed for approximately thirty minutes. S.G. described her and Appellant's genitals as being "[f]or going to the restroom." Appellant "continuous[ly]" committed this act against S.G. "for a long time," which S.G. recalled was a period longer than one month but less than six months.
In a subsequent incident, S.G. was going to the restroom when her grandmother asked Appellant to wipe her. S.G. explained Appellant "stuck his finger in where my feces comes out," causing S.G. to feel pain for approximately thirty minutes.
The final incident of abuse to which S.G. testified occurred "a couple of months after" the previous episode. S.G. and her brother were sleeping in the closet in their grandparents' bedroom when S.G. woke up to her pants being pulled down and feeling "something go in and out . . . of where the feces comes out." Nobody else was present in the bedroom except S.G.'s brother and Appellant.
B. E.V.'s Testimony
E.V., who was twelve years old at the time of trial, testified as follows. When she was five or six years old, she was in the closet of the bedroom in Appellant's house when Appellant pulled down E.V.'s pants and "tried to stick his middle part in [her] back area." E.V. described her "back area" as her "butt" which was "[t]o use the restroom." In a later incident, Appellant pulled E.V. into the restroom and "touch[ed her]." In another incident, E.V. and Appellant were at a house belonging to "Marco" when Appellant "came behind [her] and pulled down [her] pants from behind and tried to stick his middle part behind [her]." During this incident, Appellant pulled down "[j]ust [her] pants." Appellant's "middle part" did not touch her. E.V. did not recall how old she was when this incident occurred.
C. A.V.'s Testimony
A.V. (E.V. and J.V.'s sister) was eleven years old at the time of trial and testified as follows. On one occasion, when she was four or five, and she and her family were having a movie night at Marco's house, Appellant attempted to "put his middle part in [her] hand" while they were sitting together on the couch under a blanket. A.V. recalled that she touched skin with her hand and she moved to the other side of the couch. A.V. did not tell anybody about this incident.
D. J.V.'s Testimony
J.V., who was eight years old at the time of trial, testified as follows. When she was about four or five years old, she was living with Appellant and her grandmother. On one occasion, Appellant called her into his bedroom, pushed her back on the bed, and touched her on the chest and leg.
E. Corroborating Witnesses' Testimony
The State called several outcry witnesses whose testimony supported the victims' accounts. See Martinez v. State, 178 S.W.3d 806, 811 (Tex. Crim. App. 2005) (under Tex. Code Crim. Proc. Ann. art. 38.072, "[outcry] witnesses may recite the child's out-of-court statements concerning the offense, and that testimony is substantive evidence of the crime."). Traci Brown, a forensic interviewer, related that S.G. told her: (1) she woke up and felt Appellant put something inside of her "where her feces comes out" while she was sleeping with Appellant in his bedroom; (2) using his "crotch area," Appellant rubbed "his pants against her pants" in the area "where the feces comes out" while in Appellant's bedroom; and (3) Appellant would move her backward and forward while "her butt was on his crotch," and she felt a "bump" where his crotch was. Radhika Gafur, another forensic interviewer, related that E.V. told her that on two occasions, Appellant pulled down her pants and put his "middle part" on her "bottom" over her clothes. A.V.'s mother recalled that A.V. related to her that Appellant would pull down A.V.'s and her sisters' pants and rub his penis on their vaginas and that Appellant would force them to masturbate or watch him masturbate while he was watching pornography.
The jury found Appellant guilty of the charged offense and assessed punishment of fifty year's imprisonment. This appeal followed.
II. Discussion
In his sole issue on appeal, Appellant argues the evidence is legally insufficient to support his conviction because the State failed to prove: (1) that Appellant committed the alleged acts with the intent to arouse or gratify his sexual desire; and (2) that the abuse occurred over a period longer than thirty days.
A. Standard of Review and Applicable Law
The Fourteenth Amendment due process guarantee requires every conviction to be supported by legally sufficient evidence. See Jackson v. Virginia, 443 U.S. 307, 315-16 (1979); Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010). In a legal-sufficiency challenge, we focus solely on whether the evidence, when viewed in the light most favorable to the verdict, would permit any rational jury to find the essential elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 318-19; Brooks, 323 S.W.3d at 912 (establishing legal sufficiency under Jackson v. Virginia as the only standard for review of the evidence).
Applying that standard, we recognize that our system designates the jury as the sole arbiter of the witnesses' credibility and the weight attached to their testimony. Metcalf v. State, 597 S.W.3d 847, 855 (Tex. Crim. App. 2020); Dobbs v. State, 434 S.W.3d 166, 170 (Tex. Crim. App. 2014). Only the jury acts "to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007), (quoting Jackson, 443 U.S. at 319). In doing so, the jury may choose to believe or disbelieve any testimony. Lancon v. State, 253 S.W.3d 699, 707 (Tex. Crim. App. 2008). The jury remains at liberty to believe "all, some, or none of a witness's testimony." Metcalf, 597 S.W.3d at 855. When the record supports conflicting inferences, we presume that the jury resolved the conflicts in favor of the verdict, and we defer to that determination. Dobbs, 434 S.W.3d at 170, (citing Jackson, 443 U.S. at 319).
Here, Appellant was convicted of continuous sexual abuse of a young child or children. A person commits that offense if, during a period that is thirty days or more in duration, the person commits two or more acts of sexual abuse, regardless of whether the acts of sexual abuse are committed against one or more victims. Tex. Penal Code Ann. § 21.02(b)(1). As it pertains to this case, the "act of sexual abuse" means any act that is a violation of: (1) indecency with a child under Tex. Penal Code Ann. § 21.11(a)(1) if the actor committed the offense in a manner other than by touching, including touching through clothing, the breast of the child; or (2) aggravated sexual assault. Id. §§ 21.02(c)(2), (4).
A person commits indecency with a child under section 21.11(a)(1) if the person engages in sexual contact with the child or causes the child to engage in sexual contact. Id. § 21.11(a)(1). Relevant here, "sexual contact" means, if done with the intent to arouse or gratify the sexual desire of any person, any touching by a person, including touching through clothing, of the anus or genitals of a child. Id. § 21.11(c). "Sexual contact" also means any touching of any part of the body of a child, including touching through clothing, with the genitals of a person. Id. A person commits aggravated sexual assault if the person intentionally or knowingly causes the penetration of the anus or sexual organ of a child by any means if the child is younger than fourteen years of age. Id. §§ 22.021(a)(1)(B)(i), (a)(2)(B).
Below, we address the two elements of the charged offense with which Appellant takes issue on appeal; namely, that he engaged in sexual contact with the victims with the intent to arouse or gratify his sexual desire and that he committed the alleged acts over a period longer than thirty days.
B. The evidence is legally sufficient to establish Appellant committed indecency with a child with the intent to arouse or gratify his sexual desire
Appellant first argues that there was insufficient evidence to establish Appellant committed the acts with the intent to arouse or gratify the sexual desire of any person. Generally, the defendant's "intent to arouse or gratify" himself or another person "may be inferred from acts, words, or conduct of the accused," as well as the surrounding circumstances associated with the abuse. Nelson v. State, 893 S.W.2d 699, 705 (Tex. App.-El Paso 1995, no writ) (citing McKenzie v. State, 617 S.W.2d 211, 216 (Tex. Crim. App. 1981); Gatlin v. State, No. 02-20-00003-CR, 2020 WL 3865361, at *3 (Tex. App.-Fort Worth July 9, 2020, no pet.) (mem. op., not designated for publication) (quoting Hamilton v. State, No. 11-14-00194-CR, 2015 WL 4053368, at *2-3 (Tex. App.-Eastland July 2, 2015, no pet.) (mem. op., not designated for publication).
Here, each of the victims provided direct testimony of Appellant's acts, with outcry witness testimony corroborating A.V.'s, S.G.'s, and E.V.'s accounts of Appellant's acts as described above. S.G. testified that Appellant rubbed his genitals, which she described as a "bump," against her genitals while she was sitting on his lap. That the Appellant had an erection from sexual arousal is a rational inference from the "bump" S.G. described with regard to Appellant's genitals while rubbing himself on her. S.G. also testified that on another occasion when Appellant called her into a bedroom and rubbed his genitals on her genitals for approximately thirty minutes. Finally, S.G. testified that Appellant penetrated her anus on one occasion with his finger while he was wiping her, causing her pain, and also penetrated her anus on another occasion while she was sleeping. E.V. likewise testified that Appellant tried to stick his "middle part" in her "back area" on two occasions. And A.V. testified that Appellant placed his "middle part" in her hand while they were sitting together on the couch under a blanket.
Because J.V. only testified to one act of sexual abuse involving Appellant touching her breast, which does not constitute an act that can be considered as an act of sexual abuse for the purposes of the charged offense, we do not consider her testimony in determining the sufficiency of the evidence. See Tex. Penal Code Ann. § 21.02(c)(2) (the act of touching the breast of a child is not an act constituting indecency with a child for the purposes of continuous sexual abuse of a child or children). Nonetheless, Gafur testified that J.V. told her during a forensic interview that Appellant touched her "chest and then her private part with his hand over her clothes." When Gafur asked what J.V. meant by "private [part]," Gafur testified that J.V. stated that it was "[t]o use the restroom." Gafur's testimony concerning J.V.'s out-of-court statements concerning the touching of her vagina or anus is considered substantive evidence supporting the conviction, and thus we consider Gafur's testimony in our analysis.
The evidence presented indicates that Appellant's contact was not incidental or related to his care for the victims as a relative, but rather established that Appellant, through his acts, intended to arouse or gratify his sexual desires. Therefore, legally sufficient evidence supports this element of the offense. See Nelson, 893 S.W.3d at 705 (legally sufficient evidence supported the defendant's intent to arouse or gratify his sexual desires where the victim testified that the defendant touched her vagina for a "long time," which caused her pain); Griffin v. State, Nos. 05-01-00549-CR, 05-01-00550-CR, 2003 WL 77090, at *5 (Tex. App.-Dallas Jan. 10, 2003, no pet.) (not designated for publication) (legally sufficient evidence supported the defendant's intent to arouse or gratify his sexual desires where the victim testified that the defendant touched her chest and "private" with his hand while she was showering).
Appellant also argues that the evidence was legally insufficient because the State's case was undermined by the "very good" relationship he had with his granddaughters. In support of this theory, Appellant presented his testimony from his family members who claimed that Appellant had a good character and that they never saw any troubling behavior from Appellant that would suggest the presence of sexual abuse. Although this testimony could have undermined the evidence supporting Appellant's conviction, the jury is the exclusive judge of the credibility of the witnesses and the weight to be given to their testimony, and given the jury's guilty verdict, we can and do infer that the jury considered and rejected these claims. See Metcalf, 597 S.W.3d at 855.
C. The evidence is legally sufficient to establish Appellant committed the acts over the period of thirty days or more
Appellant also argues that the record only contains "scant" evidence that did not sufficiently establish that he committed the sexual abuse over a period longer than thirty days. Testimony from E.V., A.V., and J.V. did not clearly establish over what period of time the abuse occurred. Nevertheless, the clearest evidence of the temporal length of the abuse came from S.G.'s testimony. S.G. testified to two acts constituting indecency with a child and two acts constituting aggravated sexual assault of a child when she was five or six years old. See Tex. Penal Code Ann. §§ 21.11(a)(1), 22.021(a)(1)(B)(i). S.G. iterated that Appellant abused her on a "pretty continuous" basis "for a long time." When asked whether the period of abuse lasted longer than a month, S.G. responded in the affirmative, but she did not believe that the abuse lasted longer than six months. S.G. also testified that the final incident of abuse occurred "a couple of months after" the previous incident. This testimony, combined with S.G.'s testimony describing Appellant's acts of sexual abuse, constitutes legally sufficient evidence to establish that Appellant committed the abuse over a period of thirty days or more in duration. See Holland v. State, No. 05-18-01419-CR, 2019 WL 6799755, at *3 (Tex. App.-Dallas Dec. 13, 2019, pet. ref'd) (mem. op., not designated for publication) (holding that legally sufficient evidence established the defendant's sexual abuse occurred over a period of thirty days or more where the victim directly testified that the sexual abuse occurred around a hundred times over a four-year period).
Because legally sufficient evidence supported Appellant's conviction, we overrule Appellant's sole issue.
III. Conclusion
We affirm the trial court's judgment.
Before Rodriguez, C.J., Soto, J., Marion, C.J. (Ret.)
Marion, C.J. (Ret.) (sitting by assignment)