Opinion
13-22-00267-CR
08-03-2023
JORGE ALI MORENO, Appellant, v. THE STATE OF TEXAS, Appellee.
Do not publish. Tex.R.App.P. 47.2(b).
On appeal from the 370th District Court of Hidalgo County, Texas.
Before Chief Justice Contreras and Justices Benavides and Longoria
MEMORANDUM OPINION
GINA M. BENAVIDES JUSTICE
A jury convicted appellant Jorge Ali Moreno of continuous sexual abuse of a young child, a first-degree felony, and the trial court sentenced Moreno to forty years' imprisonment. See Tex. Penal Code Ann. § 21.02. By his first two issues, Moreno contends that the evidence was insufficient to support his conviction under (1) the corpus delicti doctrine, and (2) the Jackson v. Virginia legal-sufficiency standard. By his third issue, Moreno complains that the trial court erred in sustaining the State's objection to certain evidence Moreno sought to introduce. Finally, Moreno submits that if the aforementioned errors were individually harmless, then the cumulative effect of these errors was nonetheless harmful. We affirm.
I. Background
In 2018, Moreno was indicted for continuous sexual abuse of a child under the age of fourteen for allegedly committing two or more acts of sexual abuse against Stephanieduring a period that began on August 29, 2011, and ended on December 30, 2012. The guilt-innocence phase of the trial began on April 5, 2022, and although the trial spanned several days and included testimony from fifteen witnesses, we highlight only the evidence that is necessary to justify our disposition.
To protect the identity of the complainant, we refer to her by the pseudonym given to her in the indictment and used by the parties in their briefing. See Tex. Code Crim. Pro. Ann. art. 58.102(a).
Moreno was also indicted for aggravated sexual assault. See Tex. Penal Code Ann. § 22.021. The State abandoned this count during the charge conference, and only the continuous sexual abuse count was submitted to the jury.
Stephanie, twenty years old at the time of trial, testified that she was born in the United States, but her family moved to Mexico when she was five years old. There was turmoil between her parents, and after living in Mexico for several years, Stephanie's mother decided to divorce her father and move to the United States with Stephanie and her two younger siblings. With the assistance of family friends, nine-year-old Stephanie and her five-year-old sister, who was also a United States citizen, crossed the border first because her mother and brother could not gain lawful entry into the country.
After entering the United States in August of 2011, Stephanie and her sister were taken to stay with Moreno, who was residing at a motel in McAllen, Texas. Stephanie and Moreno were related because her aunt had married Moreno's uncle, and the plan was for Stephanie and her sister to stay with Moreno temporarily until Stephanie's mother and brother could join them in the United States. The motel room contained a single king-size bed, a sofa, and a beanbag chair, among other furniture.
Stephanie testified that initially she felt comfortable with Moreno, but at the end of the first week, an incident occurred that changed her perception of him. She and her sister were sleeping in the bed with the lights off when she awoke to the feeling of Moreno, who normally slept on the couch or the beanbag chair, "getting in the bed." Stephanie turned on the light and noticed that Moreno was positioning himself between her sister's legs. Stephanie asked Moreno, "What are you doing?" Moreno responded, "It's either her or you."
Moreno then walked over to Stephanie's side of the bed, got down on his knees, flipped Stephanie on her back, took her underwear off, placed her legs over his shoulders, and began "fingering" her. When asked to explain what she meant by "fingering," Stephanie responded, "His hands were inside my vagina." After Moreno stopped, "he just got up and left to the restroom."
Stephanie said a second incident occurred fifteen days later after her mother and brother had arrived. The five of them were living together at the motel, and Stephanie's mother and brother left the room to get groceries. Stephanie's sister was in the shower, and Moreno began trying to kiss Stephanie. He picked her up, carried her to the floor, and placed the beanbag chair on top of her, using it to pin her to the floor while he "fingered" her. At one point, he stopped to ask Stephanie's sister how much longer she would be in the shower and then resumed "fingering" Stephanie.
Stephanie described a third incident that was similar to the first incident, except Moreno used his tongue instead of his fingers. Moreno placed her legs on his shoulders and "was just using his tongue on [her] vagina lips." Stephanie initially said the third incident happened "later on," after they moved out of the motel. Later during her testimony, though, she said this incident actually happened on the first night her mother arrived, while they were still living at the motel.
Stephanie acknowledged that she gets the incidents "mixed up." For example, she told an interviewer at the Child Advocacy Center (CAC) in 2018 that the first incident involved Moreno's tongue rather than his fingers. She explained, "The way I have the incidents in my head-I don't have them in order, so I-I don't know when he did what." However, she also testified about a fourth incident, saying this is the incident that she "remember[s] the clearest."
It occurred in "December" when she "was still nine." Stephanie and the rest of her family had moved out of the motel and into a house. Moreno came over to visit one evening, and he and Stephanie's mother were hanging out drinking beer. Later that night, Stephanie awoke to Moreno trying to French kiss her. Stephanie resisted by keeping her mouth closed. At some point, Moreno got up to go to the restroom, and Stephanie locked the door to her bedroom and went back to sleep.
When first recounting this incident on the witness stand, Stephanie could not recall if Moreno touched her in any other way. Asked whether she previously reported during the interview at the CAC that Moreno touched her in her vaginal area, Stephanie responded, "I don't remember."
During a recess, Stephanie refreshed her memory by reviewing her forensic interview at the CAC and another interview with the Texas Department of Family and Protective Services. She agreed that her memory of the events was better in 2018 when she gave those interviews. Stephanie now recalled that during the December incident, Moreno touched her vagina over her pajama pants. Asked to describe the touching, Stephanie said, "He was just rubbing, with his hand, over my vagina while I had my PJ pants [on]." She said it was not like the other incidents when Moreno placed "his bare hand inside my vagina."
The jury found Moreno guilty of continuous sexual abuse of a young child, and this appeal ensued.
II. The Corpus Delicti Doctrine
By his first issue, Moreno contends that the State failed to prove the corpus delicti of continuous sexual abuse of a child because Stephanie's testimony was unreliable and there was no physical evidence demonstrating the commission of the offense. The corpus delicti doctrine is a common-law rule "requiring corroboration of a defendant's extrajudicial confession." Carrizales v. State, 414 S.W.3d 737, 741 (Tex. Crim. App. 2013). The rule was designed to guard against a false confession where no crime has actually been committed. Id. at 743 n.22 (citing People v. LaRosa, 293 P.3d 567, 573-74 (Colo. 2013)). The "doctrine requires that evidence independent of a defendant's extrajudicial confession show that the 'essential nature' of the charged crime was committed by someone." Hacker v. State, 389 S.W.3d 860, 866 (Tex. Crim. App. 2013) (quoting Bible v. State, 162 S.W.3d 234, 246 (Tex. Crim. App. 2005)). However, as the State correctly points out, "[b]ecause this case does not involve a defendant's extrajudicial confession, there is neither need nor purpose to refer to the corpus-delicti doctrine." Carrizales, 414 S.W.3d at 744. Moreno's first issue is overruled.
III. Sufficiency of the Evidence
By his second issue, Moreno argues that the evidence was legally insufficient to support his conviction.
Moreno also argues that the evidence was factually insufficient to support his conviction, citing cases from 2000 and earlier. It should go without saying at this point "that the Jackson v. Virginia legal-sufficiency standard is the only standard that a reviewing court should apply in determining whether the evidence is sufficient to support each element of a criminal offense." Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim App. 2010) (plurality op.) (rejecting the use of a distinct factual sufficiency standard).
A. Standard of Review & Applicable Law
In a legal sufficiency review, "we consider all the evidence in the light most favorable to the verdict and determine whether, based on that evidence and reasonable inferences therefrom, a rational juror could have found the essential elements of the crime beyond a reasonable doubt." Hammack v. State, 622 S.W.3d 910, 914 (Tex. Crim. App. 2021) (citing Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007)). Because the jury is the trier of fact, we "must defer to the jury's credibility and weight determinations." Id. This includes resolving conflicts in the testimony. Carter v. State, 620 S.W.3d 147, 149 (Tex. Crim. App. 2021) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)).
B. Analysis
Rather than contesting any particular element of the offense, Moreno generally attacks Stephanie's credibility and points to a lack of physical evidence to corroborate her testimony. According to Moreno, Stephanie's testimony "was unsubstantiated, unreliable, and inconsistent; the physical evidence was nonexistent."
It is well-established, however, that the jury is the "sole judge" of a witness's credibility and the weight to be given to her testimony. Hammack, 622 S.W.3d at 914 (quoting Garcia v. State, 367 S.W.3d 683, 687 (Tex. Crim. App. 2012)). We may not, as Moreno implicitly suggests, substitute our judgment for that of the factfinder. Thornton v. State, 425 S.W.3d 289, 303 (Tex. Crim. App. 2014). And whatever Moreno may think of Stephanie's testimony, the jury clearly found her credible. See Hernandez v. State, 610 S.W.3d 106, 111 (Tex. App.-Houston [14th Dist.] 2020, pet. ref'd) (noting that in a sufficiency review, "we presume that the jury credited the complainant's testimony").
Moreover, "[t]he uncorroborated testimony of a child victim is alone sufficient to support a conviction for a sexual offense." Wishert v. State, 654 S.W.3d 317, 328 (Tex. App.-Eastland 2022, pet. ref'd); see Tex. Code Crim. Proc. Ann. art. 38.07(b)(1). In other words, the State is not required to corroborate the complainant's testimony with physical evidence. Wishert, 654 S.W.3d at 328 (citing Gonzalez Soto v. State, 267 S.W.3d 327, 332 (Tex. App.-Corpus Christi-Edinburg 2008, no pet.). Here, Stephanie testified that, while she was under the age of fourteen, Moreno, who was over the age of seventeen, committed four separate acts of sexual abuse against her during a period that began in September 2011 and ended in December 2011, thus satisfying each element of the offense. See Tex. Penal Code Ann. §§ 21.02(b)(1)(2)(A) (defining the charged crime), 21.02(c)(2), (c)(4) (listing the implicated predicate offenses), 21.11(c)(1) (defining indecency with a child by contact), 22.021(a)(1)(B)(i) (defining aggravated sexual assault). Accordingly, the evidence was legally sufficient to support Moreno's conviction for continuous sexual abuse of a child, and his second issue is overruled.
IV. Exclusion of Evidence
These incidents came to light in 2018, when Stephanie made an outcry at the end of her sophomore year in high school. She was sixteen years old at the time. One of Moreno's defensive theories was that Stephanie fabricated her allegations against him, and he suggested that her delayed outcry tended to prove his theory. To help explain the delay, the State elicited testimony from Stephanie that, at the time she made her outcry, she was uncomfortable talking about the abuse and sex in general. To impeach this testimony, Moreno sought to admit three videos from Stephanie's TikTok account that depicted her dancing to music in a suggestive manner. These videos were recorded in June, September, and October 2021, and the State objected that the videos were irrelevant because they were too remote in time to rebut Stephanie's testimony about her attitudes towards sex in the spring of 2018, when she was a minor. The trial court sustained the State's objection and made an additional finding that, even if the videos were relevant, their probative value was outweighed by the danger of unfair prejudice. By his third issue, Moreno generally challenges the trial court's ruling.
A. Standard of Review & Applicable Law
We review a trial court's evidentiary rulings for an abuse of discretion. Bowley v. State, 310 S.W.3d 431, 434 (Tex. Crim. App. 2010). "This deferential standard requires an appellate court to uphold a trial court's admissibility decision when that decision is within the zone of reasonable disagreement." Fowler v. State, 544 S.W.3d 844, 848 (Tex. Crim. App. 2018). Stated differently, if reasonable minds could disagree on the ruling, then the trial court did not abuse its discretion. Id.
"Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action." Tex. R. Evid. 401. Relevancy is a "low threshold." Ex parte Smith, 809 S.W.3d 53, 61 (Tex. Crim. App. 2010) (quoting Tennard v. Dretke, 542 U.S. 274, 285 (2004)). Evidence offered to impeach a witness's credibility may be relevant. See Cantu v. State, 939 S.W.3d 627, 635 (Tex. Crim. App. 1997); see also Tex. R. Evid. 611(b) ("A witness may be cross-examined on any relevant matter, including credibility."). However, impeachment evidence may be too remote in time to be material, and questions of remoteness are largely left to the trial court's discretion. Dillard v. State, 218 S.W.2d 476, 478 (Tex. Crim App. 1949); see, e.g., Lumsden v. State, 564 S.W.3d 858, 893 (Tex. App.-Fort Worth 2018, pet. ref'd) ("Generally, prior offenses are inadmissible for impeachment purposes unless the offense resulted in a final conviction for either a felony or a crime involving moral turpitude and the conviction is not too remote in time."). There is no "hard and fast rule" regarding remoteness; instead, each case is fact specific. Dillard, 218 S.W.2d at 478.
B. Analysis
In his brief, Moreno asserts that he was "clearly denied a fair trial" because the exclusion of these videos left him without a vehicle to challenge "the credibility and veracity" of Stephanie's testimony. We note, however, that during his cross-examination of Stephanie, Moreno questioned her about the inconsistencies between her testimony and her prior descriptions of the incidents. He also questioned her about possible ulterior motives for accusing him, thereby suggesting that she fabricated the accusations. In any event, other than making this conclusory statement about the harm that he suffered, Moreno has failed to address the actual merits of the trial court's ruling. See Tex. R. App. P. 38.1(i); Wofle v. State, 509 S.W.3d 325, 343 (Tex. Crim. App. 2017) (explaining that "an appellate court is not required to make an appellant's arguments for h[im]"); see also Antonio Mendiola v. State, No. 08-16-00304-CR, 2019 WL 3283313, at *5 (Tex. App.- El Paso July 22, 2019, pet. ref'd) (mem. op., not designated for publication) ("It is an axiom that a complete argument to reverse the ruling of a trial court must address all independent legal reasons that were advanced by an adverse party or articulated by the judge to support the ruling.").
But even if we assume that Moreno adequately briefed this issue, the trial court did not abuse its discretion. In finding the videos irrelevant, the trial court explained its reasoning as follows: "[T]he questioning regarding her uncomfortable feelings or her feelings of being uncomfortable-were when she was a minor child, several years back. The videos that are being played at this point-she's already an adult. She is-and several years ahead of that particular moment in high school . . . ." The trial court's judgment about Stephanie's shifting attitude about sex between adolescence and adulthood is well-within the "zone of reasonable disagreement." See Fowler, 544 S.W.3d at 848. Moreno's third issue is overruled.
V. Cumulative Error
By his last issue, Moreno invokes the cumulative-error doctrine. "The doctrine of cumulative error provides that the cumulative effect of several errors can, in the aggregate, constitute reversible error, even though each individual error may be harmless. However, the doctrine only applies if the alleged errors complained of actually constitute error." Barron v. State, 629 S.W.3d 557, 564 (Tex. App.-Eastland 2021, pet. ref'd) (first citing Chamberlain v. State, 998 S.W.2d 230, 238 (Tex. Crim. App. 1999); and then citing Gamboa v. State, 296 S.W.3d 574, 585 (Tex. Crim. App. 2009)). Moreno's reliance on this doctrine is misplaced for two reasons.
Specifically, Moreno argues that "the aggregate effect of the cumulative errors by the trial court, the lack of physical evidence, argued supra in POINTS OF ERROR 1-3, adversely affected his constitutional right to a fair and impartial trial." He notes that "[e]rrors may be found harmful in their cumulative effect." This is the extent of Moreno's briefing on this issue.
First, the collection of errors alleged by Moreno is not subject to a cumulative-error analysis. Two of the three alleged errors challenge the sufficiency of the evidence. "Where the evidence is legally insufficient to support the defendant's conviction, and reformation to a lesser-included offense is not appropriate, the court must render a judgment of acquittal." Dawkins v. State, 557 S.W.3d 592, 602 (Tex. App.-El Paso 2016, no pet.) (citing Thornton v. State, 425 S.W.3d 289, 299-300 (Tex. Crim. App. 2014)). Thus, when the evidence is insufficient to support a conviction, such an error will never be harmless, and without a harmless error, there is nothing to accumulate. See id.; Barron, 629 S.W.3d 11 at 564. That leaves only one alleged error that could be individually harmless, but as the name of the doctrine suggests, a single harmless error cannot rise to the level of cumulative harm. See Gamboa, 296 S.W.3d at 585 (noting that the doctrine contemplates the occurrence of "a number of errors [that] cumulatively rise to the point where they become harmful"). Simply put, the constellation of errors alleged by Moreno could never satisfy the cumulative-error doctrine.
Regardless, Moreno's argument fails for a more obvious reason-he failed to demonstrate that any errors occurred. See id. ("[W]e have never found that 'non-errors may in their cumulative effect cause error.'" (quoting Chamberlain, 998 S.W.2d at 238)); Buntion v. State, 482 S.W.3d 58, 79 (Tex. Crim. App. 2016) ("[A]ppellant has failed to prove error concerning each of these claims separately, and so we find no cumulative harm."). Moreno's final issue is overruled.
VI. Conclusion
We affirm the trial court's judgment.