Gomez-Macielv.State

Court of Appeals Fifth District of Texas at DallasJan 14, 2016
No. 05-14-00977-CR (Tex. App. Jan. 14, 2016)

No. 05-14-00977-CR

01-14-2016

GERARDO GOMEZ-MACIEL, Appellant v. THE STATE OF TEXAS, Appellee


On Appeal from the 194th Judicial District Court Dallas County, Texas
Trial Court Cause No. F-1332880-M

MEMORANDUM OPINION

Before Justices Fillmore, Myers, and Whitehill
Opinion by Justice Whitehill

A jury convicted appellant of continuous sexual abuse of a child under the age of fourteen. In three "points of error," appellant contends that (1) the evidence is insufficient to support his conviction; (2) the trial court erred by failing to preclude the jury's consideration of alleged conduct that occurred outside of Dallas County; and (3) the trial court erred by failing to require evidence corroborating the child victim's testimony.

Because we conclude that, (1) the evidence is sufficient to support the conviction, (2) the applicable statute does not require that all predicate conduct occur in the same county, and (3) corroboration was not required because the complaining witness was less than fourteen years old, we affirm the trial court's judgment.

I. Background

When appellant's daughter AG was eleven years old, she reported that appellant had abused her repeatedly over a period of years. The abuse began when AG was eight or nine years old and continued until shortly after her eleventh birthday. AG lived at several different locations during that time, and all but one of the locations were in Dallas County.

The out-of-county location is Ferris, Texas, which in part is in Ellis County and in part is in Dallas County.

AG was eleven years old when she testified at trial. She described multiple acts of anal and vaginal penetration or contact that occurred over a period of more than one year. Her mother testified about AG's September 14, 2013 outcry. The jury also heard testimony from a forensic examiner, a physician who examined AG, AG's therapist, and a detective with the Hutchins police department. The defense did not call any witnesses.

When the evidence closed, the jury found appellant guilty of continuous sexual abuse of a child under fourteen, and assessed punishment at fifty years' imprisonment. Appellant timely appealed.

II. Analysis

A. Issue No. 1: Is the evidence sufficient to support the conviction?

1. Appellant's Arguments.

Appellant's first issue argues that the evidence is insufficient to support his conviction because the State allegedly did not establish two or more acts of abuse during a period of thirty days or more. Specifically, appellant challenges alleged inconsistencies in AG's testimony concerning the entire period of abuse and further argues that "the evidence concerning the pre-September 12, 2013 conduct was comprised of minimal and narrow assertions . . . proxy assertions and re-iterated claim testimony." Appellant also focuses on the lack of certain DNA evidence and the absence of anal trauma regarding the last abusive event.

This September 12th date is an apparent reference to the September 14th outcry described in the testimony.

As discussed below, however, we reject both appellant's application of the sufficiency standard and his reading of the continuous sexual abuse of a child statute.

2. Applicable Standards.

When reviewing whether there is sufficient evidence to support a conviction, we view all of the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Dobbs v. State, 434 S.W.3d 166, 170 (Tex. Crim. App. 2014). This standard gives great deference to the fact-finder and bars our re-evaluation of the weight and credibility of the evidence. See TEX. CODE CRIM. PROC. ANN. art. 38.04 (West 1979); Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010).

To convict a person of continuous sexual abuse of a young child, the State must show that (1) during a period that is thirty or more days in duration, the defendant committed at least two acts of "sexual abuse," regardless of whether the acts of sexual abuse are committed against the same victim; and (2) for each act that occurred, the defendant was at least seventeen years old and the victim was a child less than fourteen years old. See TEX. PENAL CODE ANN. § 21.02(b) (West Supp. 2015). The statute, however, does not say that each predicate act of sexual abuse must be of the same type of offense. See id. Nor does the statute require that the exact dates of abuse be proven. Brown v. State, 381 S.W.3d 565, 569 (Tex. App.—Eastland 2012, no pet.).

Furthermore, as relevant here, acts that qualify as "sexual abuse" under the statute include indecency with a child under § 21.11(a)(1), if the actor committed the offense in a manner other than by touching, including touching through clothing, the child's breast; and sexual assault under § 22.011. Id. § 21.02(c). The jury, however, need not agree unanimously on which specific acts of sexual abuse occurred or the exact date of those acts. Id. § 21.02(d).

Section 21.02(c)'s list of possible predicate acts that could support a violation of § 21.02(b) includes several other predicate acts, but those other possible offenses are not at issue in this case.

Indecency with a child occurs when a person engages in sexual contact with a child under seventeen, or, with the intent to arouse or gratify the sexual desire of any person, exposes the person's or the child's anus or genitals. See TEX. PENAL CODE ANN. §21.11 (West 2011). Except as § 21.11 provides otherwise, "sexual contact" means "any touching of the anus, breast, or any part of the genitals of another person with intent to arouse or gratify the sexual desire of any person." Id. § 21.01(2). Indecency with a child by contact can be committed with touching over the child's clothes. Id. § 21.11(c) (1). The intent to arouse or gratify can be inferred from conduct, remarks, or all of the surrounding circumstances. Scott v. State, 202 S.W.3d 405, 408 (Tex. App.—Texarkana 2006, pet. ref'd).

Sexual assault, when a child is involved, and as this case concerns, occurs if a person intentionally or knowingly:

(A) causes the penetration of the anus or sexual organ of a child by any means;

. . .

(D) causes the anus of a child to contact the mouth, anus, or sexual organ or another person, including the actor; or

. . .

See
TEX. PENAL CODE ANN. §22.011 (a)(2) (West 2011).

The prohibited sexual acts are the same for aggravated sexual assault but that statute requires additional aggravating factors that do not appear to be present in this case. See TEX. PENAL CODE ANN. §22.021 (West Supp. 2015).

3. The Charge And The Evidence.

Here, the State initially alleged four predicate acts, but only three were submitted to the jury. Thus, the jury was asked to determine whether appellant committed two or more acts of sexual abuse by: (a) contact with or penetration of AG's female sexual organ by appellant's sexual organ, or (b) contact with or penetration of AG's anus by appellant's sexual organ, or (c) contact between appellant's hand and AG's genitals with the intent to arouse or gratify appellant's sexual desire.

The State abandoned its digital penetration allegation because AG testified that appellant touched her sexual organ on top of her clothing.

As summarized below, there was sufficient evidence that appellant committed multiple predicate acts during a span covering several years, which evidence the jury was free to accept.

AG's Mother

AG's mother, SG, testified that AG made her outcry on Saturday, September 14, 2013 when SG was going to the beauty parlor with SG's sister. SG had planned to take SG's children with her, but appellant suggested that she leave them at home with him, which she did.

When SG got to her sister's house, her sister suggested that they take only one vehicle and SG took her car back to her house. As she walked into her house, she saw two of her children playing in their room. AG, however, came running out of the bedroom SG shared with appellant and screamed, "Mom, Mom, I'm so glad your home because it was getting weird in here." SG asked AG if she was o.k. and AG said, "Yeah. It was just getting weird in here."

When SG walked into her bedroom, appellant was sitting there and told her that AG had been changing out of her cheerleading outfit. She noticed that appellant was aroused. Appellant also tried to cover himself with a trash bag and said that he had been cleaning.

SG asked appellant what was going on, and he said that AG was just changing. Because she was not content with his answer, she told the children to put on their shoes and took them with her. Appellant said, "Don't take them," and SG replied that she was not going to leave the children with him.

While she had the children in the car, SG asked AG what had happened. AG looked very frightened and sad. When they got to the beauty salon, AG told her generally what happened. When her sister's hair was done, SG took AG to the police station.

The detective there took their testimony, and told SG to take AG to Children's Hospital to get examined. She did so right away. Later, she took AG for a forensic interview at the Children's Advocacy Center.

AG's Testimony

AG testified at trial that appellant, her father, did not live with them anymore because he had sexually abused her. Appellant first abused her when she was about eight years' old when he touched her anus through her clothes. They were living in Wilmer at the time.

When she was nine, they lived with her grandmother in Ferris, Texas. While she was living there, appellant tried to put his penis "by" her mouth, but she turned away. He also put her hand on his penis.

In approximately 2012, when AG was ten, her family moved to an apartment in Dallas. Appellant would sexually assault her in the morning before she left for school. AG described one occasion when she "felt his male part where [she goes] number one" and it hurt. AG was lying on her back on her bed, but she did not say anything, she just closed her eyes a little. Appellant stopped because she had to get ready for school. AG said appellant did this more than five times when they lived at the Dallas apartment, but she did not recall the exact number. The abuse always occurred when her mother was not home.

In 2013, AG celebrated her eleventh birthday at her grandparent's house in Ferris. She was wearing a pink shirt and white shorts, and appellant came into her room and closed the door. He told AG to lay on her stomach, and she refused. So he flipped her over and took off her shorts. Then he put "his male part" in AG's anus. Although there were a lot of people there, the door was closed and no one saw or noticed. Appellant told her not to tell anyone.

A few weeks later, AG and her family moved to Hutchins, Texas. On one occasion, AG's mother was in the shower and AG was about to go to sleep when appellant came into her room and began touching her. His hand touched her vagina on top of her clothes.

The last time that appellant abused AG was when her mother went to the beauty parlor with her aunt. AG was playing with her brother and sister in her brother's room, when appellant called her into his room and pushed her on the bed. Her body was only half way on the bed, with her "front side" facing the bed. Appellant asked her to take off her shorts and underwear. When she refused to do so, he pulled them off. He took off his boxer shorts and put his "male part" in her anus. Then, he put his male part in her vagina.

Appellant stopped when they heard AG's mom come home. Appellant pushed her off of the bed and she ran out of the room. When her mother asked what she was doing, AG said she was putting the cheer uniforms up. Her mother asked why she was talking so fast, and AG told her "it was getting weird."

Dr. Mathew Cox

Dr. Cox first saw AG in the emergency room at Children's Hospital on the evening she made her outcry. AG told him, "He put his private in my private" and "it happened since I was 10 many times. I lost count."

Dr. Cox noted a couple of abnormal findings. One was redness and irritation of the external genitals. AG also had a labial adhesion and a bruise on the surface of her hymen. There were no abnormal findings around AG's anus, but Dr. Cox explained that injury to that area is uncommon to see because anal tissue heals faster than vaginal tissue.

Kim Skidmore

Kim Skidmore, a forensic interviewer at the Dallas Children's Advocacy Center ("DCAC"), interviewed AG three days after AG's last sexual assault. AG told her that on the Saturday before the interview, appellant put his penis in her vagina and anus and that three weeks before that event, appellant put his penis in her anus.

AG also described appellant touching her vagina when she was in fourth grade and lived in Wilmer.

Although she was unable to give a specific number, AG told Skidmore that appellant sexually assaulted her numerous times.

Leslie Moses-Boutte

Leslie Moses-Boutte, is employed by DCAC as a therapist and provided therapy to AG. AG talked about the abuse and the fact that it would occur when her mother was not home. When they talked about why AG had not told an adult about the sexual abuse before her mother asked her what was going on while her mother had left for the hair dresser, AG expressed concern about her siblings losing their father.

During her therapy, AG described a recurring nightmare where her father would chase her. She also blacked out on several occasions and had flashbacks.

4. Application of Law.

Appellant's sufficiency argument is in part a credibility argument and in part an argument that additional incriminating evidence was not presented. We reject his arguments for the following reasons:

First, he points to apparent contradictions in AG's testimony concerning the nature of appellant's abusive acts, their number, and when and where they occurred. But resolution of conflicts in the evidence and the assessment of credibility is within the jury's province, and we defer to their determinations. See Wise v. State, 364 S.W.3d 900, 903 (Tex. Crim. App. 2012).

Here, AG testified about more than two instances of sexual abuse under penal code sections 22.011 and 22.021 that occurred in the 2012-2013 time frame. This was sufficient to establish that she was abused during a period more than thirty days in duration. Not only was this evidence alone sufficient evidence to support a conviction for continuous sexual abuse of a young child, see TEX. CODE CRIM. PROC. ANN. art. 38.07 (West Supp. 2015); Garcia v. State, 563 S.W.2d 925, 928 (Tex. Crim. App. 1978); Lee v. State, 186 S.W.3d 649, 655 (Tex. App.—Dallas 2006, pet. ref'd), but as discussed above there was additional incriminating testimony from AG's mother, Dr. Cox, Skidmore, and Moses-Boutee.

Second, he complains that the State did not explain the absence of DNA evidence regarding the September 14, 2013 event nor did Dr. Cox testify to an anal injury from that event (despite the fact that Dr. Cox testified to genital abrasions and hymen bruising resulting from that event). As stated above, however, there was witness testimony regarding that event, and we do not second guess the weight and credibility of that evidence. See Isassi, 330 S.W.3d at 638.

Viewing the evidence discussed above in the light most favorable to the verdict, we conclude that the evidence was sufficient to support the conviction. See Jackson, 443 U.S. at 319. We thus overrule appellant's first issue.

B. Issue Nos. 2 and 3: Was there charge error?

Appellant's second and third issues assert that the trial court erred in instructing the jury. First, appellant claims the court should have instructed the jury not to consider alleged conduct that occurred outside of Dallas County. Next, he argues that the trial court should have required corroboration of AG's testimony.

Appellant, however, did not object to the jury charge or request any instructions. Thus, we will reverse only if the alleged charge error was "so egregious and created such harm" that appellant "has not had a fair and impartial trial." Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh'g); see also Jennings v. State, 302 S.W.3d 306, 311 (Tex. Crim. App. 2010) (all jury-charge errors are cognizable on appeal, but unobjected-to error is reviewed for "egregious harm," while objected-to error is reviewed for "some harm.").

We turn next to appellant's specific complaints about the charge.

1. Was the trial court required to limit the jury's consideration to alleged conduct in Dallas County (Issue No. 2)?

In addition to evidence of sexual abuse that occurred in Dallas County (Wilmer, Dallas, and Hutchins) where the case was tried, the jury heard evidence concerning abuse that occurred in Ferris, which is, at least in part, in Ellis County. Appellant, however, argues that the trial court should have limited the jury's consideration of alleged conduct to only conduct that occurred in Dallas County. Appellant acknowledges that venue in a sexual assault case is proper in the county in which the offense was committed, see TEX. CODE CRIM. PROC. ANN. art. 13.15 (West 2015), but he argues that the State "raised venue as a contested issue" by making sure that the jury knew that certain alleged conduct occurred in Ellis County. We disagree.

There is no authority that requires all of the predicate acts of continuous sexual abuse of a young child occur in the same county. See Meraz v. State, 415 S.W.3d 502, 505 (Tex. App.—San Antonio 2013, pet. ref'd). Rather, the continuous sexual abuse of a child statute creates a single offense. Render v. State, 316 S.W.3d 846, 857 (Tex. App.—Dallas 2010, pet ref'd); see also State v. Weaver, 982 S.W.2d 892, 893-94 (Tex. Crim. App. 1998) (penal code § 31.09's aggregation of amounts involved in theft statute creates a single cause of action with venue proper in any county where at least one element of one theft occurred).

Furthermore, that statute allows the State to seek "one conviction for a 'series' of acts of sexual abuse with evidence that, during the relevant time period, appellant committed two or more different acts that § 21.02 defines as means of committing a single criminal offense and not as two or more separate criminal offenses." Meraz, 415 S.W.3d at 505. And the location or place where the sexual abuse is not an element of the offense. Id., citing TEX. PENAL CODE ANN. § 21.02. We thus conclude that the trial court did not commit charge error by not precluding the jury's consideration of abuse that occurred outside of Dallas county where the case was tried. We overrule appellant's second issue.

To the extent that appellant argues otherwise, we also conclude that venue was proper in Dallas County. --------

2. Did article 38.07 require the State to corroborate AG's testimony (Issue No. 3)?

Appellant also says that the trial court erred by not instructing the jury that AG's testimony had to be corroborated. Specifically, appellant contends that, because he was charged with continuous sexual abuse of a child, "the corroboration requirement bars reliance on the uncorroborated pre-September 2013 conduct" and "uncorroborated testimony would have been allowed if appellant has been charged only with an enumerated lesser-included offense." Based on those premises and citing only to TEX. CODE CRIM. PROC. ANN. art. 38.07, appellant contends that the court's charge should have included the following instruction:

Our law provides that a conviction for continuous sexual abuse of a young child cannot be based on the uncorroborated testimony of the alleged victim. You shall not consider the alleged victim's testimony regarding any alleged act of sexual abuse, as that term is defined above, unless you first find that such testimony was corroborated. "Corroboration" means the existence of some independent evidence that tends to strengthen a claim of sexual abuse made by the alleged victim.

We for several reasons disagree that the court's failure to give such a charge was error.

First, as a general principle and as stated above, a child victim's testimony alone is sufficient to support a conviction for sexual assault. See Lee v. State, 186 S.W.3d 649, 655 (Tex. App.—Dallas 2006, pet. ref'd).

Second, not only does code of criminal procedure article 38.07 provide that a conviction under penal code chapter twenty-one (among other statutes) can be supported by a sexual abuse victim's uncorroborated testimony if the victim told somebody else, besides the defendant, about the abuse within one year after the abuse occurred, but article 38.07 also dispenses with this corroboration requirement if victim was seventeen years old or younger when the offense occurred. TEX. CODE CRIM. PROC. ANN. art. 38.07(a), (b).

Here, the evidence established that AG was less than eighteen years old when the offense occurred and the continuous sexual abuse of a child statute is included in penal code chapter 21. See TEX. PENAL CODE ANN. § 21.02. Thus, article 38.07's corroboration requirement does not apply to AG in this case. See Paramo v. State, No. 05-12-01325-CR, 2014 WL 1413794, at *3 (Tex. App.—Dallas Apr. 7, 2014, no pet.) (mem. op., not designated for publication). Because no corroboration was required, the trial court did not err by not including a corroboration instruction. We thus overrule appellant's third issue.

III. Conclusion

Having resolved all of appellant's issues against him, we affirm the trial court's judgment. Do Not Publish
TEX. R. APP. P. 47
140977F.U05

/Bill Whitehill/


BILL WHITEHILL


JUSTICE

JUDGMENT

On Appeal from the 194th Judicial District Court, Dallas County, Texas
Trial Court Cause No. F-1332880-M.
Opinion delivered by Justice Whitehill. Justices Fillmore and Myers participating.

Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.