Opinion
NUMBER 13-16-00232-CR
02-02-2017
ISRAEL LEYVA, Appellant, v. THE STATE OF TEXAS, Appellee.
On appeal from the 107th District Court of Cameron County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Benavides and Hinojosa
Memorandum Opinion by Chief Justice Valdez
A jury convicted appellant, Israel Leyva, of aggravated sexual assault of a child, and he was sentenced to twenty-seven years' confinement. See TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(v), (a)(2)(B) (West, Westlaw through 2015 R.S.). By his sole issue, appellant challenges the sufficiency of the evidence to support his conviction. We affirm.
I. SUFFICIENCY OF THE EVIDENCE
By his first issue, appellant attacks the sufficiency of the evidence on the basis that there was no corroborating physical evidence, DNA, medical evidence or any confessions by appellant and the child provided inconsistent testimony and admitted to telling lies. To support his claim of insufficient evidence, appellant cites portions of the witnesses' testimony wherein he believes there were inconsistencies. Although appellant cites to the portions of the child's testimony that support the jury's verdict in this case, he claims that the child made up the allegations in order to have appellant removed from the home because the child did not like the manner in which appellant disciplined him. Appellant does not challenge the specific elements for the offenses he was convicted of committing and instead challenges the credibility of the child and the child's brother, J.P.
A. Standard of Review
In a sufficiency review, we examine the evidence in the light most favorable to the prosecution to determine whether any rational fact-finder could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); see Brooks v. State, 323 S.W.3d 893, 898-99 (Tex. Crim. App. 2010) (plurality op.). The fact-finder is the exclusive judge of the facts, the credibility of witnesses, and of the weight to be given testimony. Brooks, 323 S.W.3d at 899. We must resolve any evidentiary inconsistencies in favor of the judgment. Id. We measure the legal sufficiency of the evidence by the elements of the offense as defined by a hypothetically correct jury charge. Coleman v. State, 131 S.W.3d 303, 314 (Tex. App.—Corpus Christi 2004, pet. ref'd) (citing Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)). The hypothetically correct jury charge as authorized by the indictment required the State to prove that appellant: (1) intentionally or knowingly; (2) caused the child's mouth to contact the sexual organ of the appellant; (3) when the complainant was younger than 14 years of age. See TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(v) (West, Westlaw through 2015 R.S).
B. The Evidence
Appellant and the child's mother were married. Appellant is not the child's biological father. At trial, the child, who was fourteen at the time, testified that when he was twelve, after appellant told him to sniff a drug, appellant had his pants around his ankles, stood in front of the child, and had the child put his mouth on his "private." The child stated that he saw his younger brother, J.P., walk into the room and then appellant told J.P. to go back to another room. The child acknowledged on direct-examination by the State that (1) after making his outcry, he signed an affidavit stating that the abuse had not occurred, (2) he told his counselor that the abuse had not occurred, and (3) he told the State prosecutor that the abuse had not occurred. The child stated that he decided to tell the truth and that he "felt better that [he] didn't have to hold it in anymore." When asked by the prosecutor, "Did this actually happen to you" and "Did [appellant] do these things that you described," the child responded, "Yes, ma'am."
J.P., who was twelve at the time, testified that when he was ten, he and his two brothers were in his mother's room watching television while the child and appellant were in the living room. J.P. stated that at some point he went to the restroom, and as he went to the living room, he saw the child in front of appellant, who was facing the child. J.P. testified that he saw "[a] little bit of [appellant's] behind" and appellant pulled up his pants.
The child's mother stated that the child told her that appellant "made [the child] put [his] mouth on [appellant's] penis." The child's mother did not report the incident to the police or Child Protective Services and instead told her friend who then reported the incident. Narciso Hernandez, a special investigator with the Texas Department of Family and Protective Services testified that he investigated an allegation that appellant had "made [the child] use cocaine and also [had the child] do oral sex on him." According to Hernandez, the child confirmed the allegations that were reported. Hernandez said, "The child did state that the allegations were true, that in fact [appellant] had provided him a white powdery substance known to him as cocaine on a piece of paper, and thereafter asked him to do oral sex on him." Hernandez testified that he also interviewed J.P. who "[b]asically . . . did say that [the child] had shared with him what had happened, that also on one occasion he did walk in on [appellant] with his pants down and [the child was] sitting down in front of [appellant]." Hernandez testified that the child and J.P. were then interviewed at "Maggie's House" by a forensic interviewer and that the children's statements to the forensic interviewer were consistent with the allegations made to him. Hernandez spoke with the sexual assault nurse examiner who examined the child, and according to Hernandez the nurse told him that the child's outcry to her was consistent with what the child reported including that appellant gave the child cocaine "and then the oral sex contact between [the child] and [appellant]."
C. Discussion
Appellant's attacks on the alleged inconsistencies of the witnesses' testimonies must fail because the jury is the sole judge of the credibility of witnesses and is free to accept or reject any or all of the evidence presented by either side. See Lancon v. State, 253 S.W.3d 699, 707 (Tex. Crim. App. 2008). Therefore, even if appellant is correct that there were inconsistencies in the testimony presented, it was up to the jury to decide whether to believe or disbelieve such testimony. See id.; see also Brooks, 323 S.W.3d at 899. Appellant's argument that there was no corroborating evidence must also fail because the child's testimony alone can support the verdict and no corroborating evidence is required. See Soto v. State, 267 S.W.3d 327, 332 (Tex. App.—Corpus Christi 2008, no pet.) (explaining that a complainant's testimony alone is sufficient to support a conviction for aggravated sexual assault); Connell v. State, 233 S.W.3d 460, 466 (Tex. App.—Fort Worth 2007, no pet.); Perez v. State, 113 S.W.3d 819, 838 (Tex. App.—Austin 2003, pet. ref'd) overruled on other grounds by Taylor v. State, 268 S.W.3d 571, 587 (Tex. Crim. App. 2008); see TEX. CODE CRIM. PROC. ANN. art. 38.07(a), (b)(1) (West Supp. 2011) (requiring no corroboration of a child victim's testimony when defendant violated section 22.021 of the penal code); Tear v. State, 74 S.W.3d 555, 560 (Tex. App.—Dallas 2002, pet. ref'd). Moreover, the jury was free to accept or reject some, all, or none of the child's testimony in this case. Id. Here, the child testified that appellant put his "private" in the child's mouth. Thus, the child's testimony alone supports the verdict in this case. We overrule appellant's sole issue.
II. CONCLUSION
We affirm the trial court's judgment.
/s/ Rogelio Valdez
ROGELIO VALDEZ
Chief Justice Do Not Publish.
TEX. R. APP. P. 47.2(b). Delivered and filed the 2nd day of February, 2017.