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holding evidence sufficient when it showed mother's role in encouraging and aiding the sexual abuse by knowingly forcing her daughter to go to her father-abuser, as well as concealing the aftermath with lies and violence, despite her duty as the child's mother to take reasonable action to prevent the abuse
Summary of this case from Bleil v. StateOpinion
NUMBER 13-14-00307-CR
02-25-2016
ANA DEISI MARTINEZ BANOS, Appellant, v. THE STATE OF TEXAS, Appellee.
On appeal from the 92nd District Court of Hidalgo County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Benavides
Memorandum Opinion by Justice Rodriguez
Appellant Ana Deisi Martinez Banos appeals her conviction for aggravated sexual assault, a first-degree felony. TEX. PENAL CODE ANN. § 22.021(a) (West, Westlaw through 2015 R.S.). Banos argues that there was a material variance between her indictment and the proof at trial. Banos contends that her indictment only authorized a jury to convict her for actually sexually assaulting her daughter, M.J., when the evidence at trial instead showed that Banos aided and assisted her husband, Jose Jimenez, in committing the assault. By three issues, Banos argues that this inconsistency—between indictment as a principal and proof that she was a party—constitutes a material variance which requires reversal. The State responds that this case does not present a material variance because of the operation of the law of parties. We affirm.
Banos was sentenced to thirty years imprisonment in the Institutional Division of the Texas Department of Criminal Justice.
I. BACKGROUND
Testimony from the trial showed that in 2011, it was discovered that Banos's husband Jimenez had been sexually abusing his daughter M.J. since the child was six years old. Medical evidence confirmed that by the time she was fourteen, M.J. had conceived and given birth to two children as a result of this abuse.
When allegations of abuse surfaced, M.J. spoke to police and later to a court-appointed therapist. The therapist and M.J. both testified that Banos had not only known of the abuse but had actively encouraged it. Banos often sent M.J. to sleep in Jimenez's bedroom or to join him alone in the parked family car, and Banos hurled epithets at M.J. when she resisted. Banos sometimes watched the abuse. M.J. testified that Banos also helped conceal the incest from social services by beating M.J. when she seemed inclined to report the sexual abuse, and that Banos also encouraged M.J. to lie about the pregnancies, telling her to claim they were caused by a boy from school.
When Banos's role in the abuse was fully brought to light, Banos was indicted in 2013 on two counts: count one for aggravated sexual assault of a child and count two for endangering a child. Critically, count one indicted Banos for "caus[ing] the penetration of the sexual organ of [M.J.] . . . by defendant's sexual organ." (Emphasis added). Banos was the only defendant in the case; Jimenez had pled guilty in a separate prosecution for the aggravated sexual assault of M.J. in 2012.
At trial, the jury charge contained instructions on child endangerment, aggravated sexual assault, and the law of parties. The charge for aggravated sexual assault asked the jury to determine whether Banos caused the "penetration of the sexual organ of [M.J.] . . . by Defendant JOSE JIMENEZ's sexual organ . . . ." The jury convicted Banos of aggravated sexual assault and endangerment of a child. Banos appeals only her conviction for aggravated sexual assault.
The jury charge's instruction on the law of parties was drawn directly from section 7.02(a)(3) of the Texas Penal Code, which provides that a person is criminally responsible for an offense committed by another if, "having a legal duty to prevent commission of the offense and acting with intent to promote or assist its commission, [s]he fails to make a reasonable effort to prevent commission of the offense." TEX. PENAL CODE ANN. § 7.02(a)(3) (West, Westlaw through 2015 R.S.).
II.DISCUSSION
On appeal, Banos argues that the indictment only authorized a jury to convict her for causing M.J. to be assaulted by "defendant's sexual organ." Banos contends that this phrase must be read as "Banos's sexual organ," because Banos was the only defendant in the case. Banos points out that the evidence at trial in fact showed it was Jimenez who was the bodily source of the offense, and that this inconsistency qualifies as a material variance, requiring reversal. By her first issue, Banos contends that because there was a material variance between the indictment and the proof at trial, her substantial rights were prejudiced. By her second issue, Banos contends that the same variance also renders the evidence at trial insufficient to convict her of all elements of the crime beyond a reasonable doubt. By her third issue, Banos contends that the variance caused the trial court to err in denying her motion for directed verdict.
All three issues have the same predicate: that the indictment was inconsistent with the proof at trial so as to cause a variance. Moreover, Banos's first two issues—prejudice to substantial rights and insufficient evidence because of a variance—are merely two expressions of the same analysis. Under Texas law, we analyze a variance's effect on the defendant's rights as a subset of evidentiary sufficiency review. See Gollihar v. State, 46 S.W.3d 243, 247 (Tex. Crim. App. 2001); Marra v. State, 399 S.W.3d 664, 669 (Tex. App.—Corpus Christi 2013, no pet.). As such, we consider all three issues together.
A. Applicable Law and Standard of Review
Review of the legal sufficiency of the evidence inquires whether, after viewing the evidence in a light most favorable to the verdict, 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); Powell v. State, 194 S.W.3d 503, 506 (Tex. Crim. App. 2006). To determine what "the essential elements of the crime" are, we envision a hypothetically correct jury charge which accurately sets out the law as authorized by the indictment, meaning "the statutory elements of the offense . . . as modified by the charging instrument." Johnson v. State, 364 S.W.3d 292, 294 (Tex. Crim. App. 2012).
In this case, the hypothetically correct charge is informed by multiple sections of the Texas Penal Code. Section 22.021 lists various forms of aggravated sexual assault, the most pertinent of which is that an actor intentionally or knowingly caused the penetration of the anus or sexual organ of a child by any means. TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(i). Pursuant to Texas Penal Code sections 7.01 and 7.02, a defendant may be held criminally responsible as a party to an offense committed by another where the defendant acts in concert with the one committing the offense. See id. §§ 7.01-.02 (West, Westlaw through 2015 R.S.); see alsoPowell, 194 S.W.3d at 506.
A "variance" occurs when there is a discrepancy between the allegations in the indictment and the proof offered at trial. Byrd v. State, 336 S.W.3d 242, 246 (Tex. Crim. App. 2011). When faced with a sufficiency-of-the-evidence claim based upon a variance between the indictment and the proof, only a material variance will render the evidence insufficient and thus require reversal.Gollihar, 46 S.W.3d at 257. A variance is material only if it prejudices the defendant's substantial rights. Id. In determining whether a defendant's substantial rights have been prejudiced, two questions are asked:
Conceptually, variance review is tied to sufficiency review because, where the indictment includes allegations that are not borne out by the evidence, the State may have nonetheless committed itself to proving the allegation that the evidence is simply "insufficient" to show. See, e.g., Curry v. State, 30 S.W.3d 394, 399 (Tex. Crim. App. 2000). Whether the State is committed to prove the errant allegation depends upon the materiality of the allegation—i.e., whether the allegation would lead to a material variance if not proven. See Gollihar, 46 S.W.3d at 257. The only allegations which are material—and thus capable of producing reversible material variances—are "those descriptive averments of statutory elements that define or help define the allowable unit of prosecution." Cornwell v. State, 471 S.W.3d 458, 467 (Tex. Crim. App. 2015). Any other deviation of the proof from a descriptive averment in the indictment will be regarded as immaterial and will not render the evidence legally insufficient. Id. Where there is material variance, the proof at trial will in essence show an "entirely different offense" than that which was charged in the indictment, Johnson v. State, 364 S.W.3d 292, 295 (Tex. Crim. App. 2012), and will therefore violate the defendant's rights to double jeopardy protection and notice of the offense to be proved at trial. See Gollihar, 46 S.W.3d at 258.
When reviewing such a variance, we must determine whether the indictment informed the defendant of the charge against him sufficiently to allow him to prepare an adequate defense at trial, and whether prosecution under the deficiently drafted indictment would subject the defendant to the
risk of being prosecuted later for the same crime.Id. at 258 (quoting United States v. Sprick, 233 F.3d 845, 853 (5th Cir. 2000)). It is the defendant's burden to demonstrate prejudice to a substantial right. Santana v. State, 59 S.W.3d 187, 194 (Tex. Crim. App. 2001).
B. Analysis
In her first two issues, Banos argues that the indictment only authorized a jury to convict her for causing M.J. to be sexually assaulted by "defendant's [i.e., Banos's] sexual organ," when the proof showed it was in fact the organ of Jimenez that was the source of the offense. Banos argues that this is a material variance which prejudices her rights and renders the evidence insufficient.
However, because Banos was convicted under the law of parties, we do not believe this to be a variance at all. The indictment against Banos correctly states all of the information that is most commonly subject to reversal on grounds of material variance. The indictment listed the correct complainant, the correct offense, the correct statutory manner and means of that offense, the correct essential context of the act, and the correct identity of the defendant. The only potential gap between the indictment and the ensuing proof was in the capacity of the defendant—and this potential gap is bridged smoothly by the law of parties. See Powell, 194 S.W.3d at 506; Marable v. State, 85 S.W.3d 287, 288 (Tex. Crim. App. 2002). "[A] person can be convicted as a party even if the indictment does not explicitly charge him as a party." Powell, 194 S.W.3d at 506. Indeed, in a refused-petition case, the Austin Court of Appeals resolved a highly similar case based upon the logic of Powell. Rainey v. State, No. 03-11-00741-CR, 2013 WL 692477, at *5 (Tex. App.—Austin Feb. 22, 2013, pet. ref'd) (citing Powell 194 S.W.3d at 506). There, the appellant had been charged with committing aggravated sexual assault with his sexual organ, when the evidence showed only that he aided and encouraged those who bodily committed the assault. Id. at *3. The Austin court rejected the appellant's variance argument, which is virtually identical to Banos's argument here, concluding that the appellant had fundamentally "misconstrued the law of parties as it applies to aggravated sexual assault . . . ." Id. at *4. Given that an indictment "does not need to provide notice that the State may prove its case under the law of parties, there is no reason why the indictment needs to provide notice that the law of parties as applied to the charged offense necessarily involved the use of another assailant's sexual organ." Id. *5 (internal citations omitted).
Cf. Byrd v. State, 336 S.W.3d 242, 244 (Tex. Crim. App. 2011).
Cf. Planter v. State, 9 S.W.3d 156, 159 (Tex. Crim. App. 1999).
Cf. Curry v. State, 30 S.W.3d 394, 398 (Tex. Crim. App. 2000).
Cf. Dunn v. United States, 442 U.S. 100, 105 (1979) (reversing because the indictment named an incorrect timeframe and setting, so as to genuinely resemble a wholly different criminal act committed on a different day in a different setting).
Cf. Fulmer v. State, 731 S.W.2d 943, 946 (Tex. Crim. App. 1987) (finding that acquittal on an indictment which incorrectly named the defendant did not trigger double jeopardy so as to bar the re-indictment of the defendant on the correct name).
Put differently, "the trial court may charge in the law of parties even though there is no such allegation in the indictment." Marable v. State, 85 S.W.3d 287, 292 (Tex. Crim. App. 2002) (Cochran, J., concurring). Indeed, as Justice Cochran's concurrence in Marable notes, the majority rule in federal law is that "aiding and abetting is not a separate offense, but is an alternative charge in every indictment, whether explicit or implicit"—that is, party liability is an implied alternate allegation in every indictment, of which no further notice is necessary. See id. (quoting United States v. Neal, 951 F.2d 630, 633 (5th Cir. 1992)). If this implied-allegation theory is cognizable under Texas law as it is in federal law, then there is certainly no variance between the implied allegation that Banos acted as a party to the violation of her daughter and the trial evidence that the violation was committed by the person she aided and assisted: M.J.'s father. See id.; TEX. PENAL CODE ANN. §§ 7.01-.02. --------
The conclusion that there is no variance is reinforced by comparing the operative facts of Powell with the case at hand. In Powell, a defendant had appealed his conviction as a party to the burglary of a habitation. 194 S.W.3d at 504. The pertinent elements were: an individual enters a habitation; without the effective consent of the owner; in order to commit a felony, theft, or assault. See id.; see also TEX. PENAL CODE ANN. § 30.02(a)(3) (West, Westlaw through 2015 R.S.). The Fort Worth Court of Appeals reversed the conviction, reasoning that to be convicted as a party to the burglary, the party must have actually entered the habitation. Powell, 194 S.W.3d at 504-05. The court found insufficient evidence of such an entry. Id. The Texas Court of Criminal Appeals reversed, holding that under the law of parties, the State was not required to show that the party personally entered the habitation. Id. at 506-07.
Under Powell's interpretation of the law of parties, a burglary indictment against a party could properly include the allegation that the "individual entered a habitation"—i.e., the party's body penetrated the protected space of the home—without requiring the State to show that the party actually entered the habitation. See id. It stands to reason that the indictment allegation cited by Banos—that it was "defendant's" sexual organ that penetrated M.J.—did not obligate the State to show that Banos committed such an actual violation. The law of parties certainly applies to aggravated sexual assault. Miranda v. State, 391 S.W.3d 302, 309 (Tex. App.—Austin 2012, pet. ref'd).
Moreover, the record shows that even from the early moments of voir dire, Banos adopted a strategy which showed she actually knew that she was being prosecuted as a party, not as a principal. This actual knowledge alleviates many of the fair-notice concerns that animate our variance law. See Gollihar, 46 S.W.3d at 258 (relying, in part, on the defendant's actual knowledge of the exact nature of the offense as grounds to hold that a variance was immaterial).
We conclude that this case does not present a variance, because any potential gap between the indictment and the evidence is bridged by the operation of the law of parties. See Powell, 194 S.W.3d at 506; Marable, 85 S.W.3d at 292. In light of Powell, we conclude that the indictment's use of the term "defendant's sexual organ" corresponds with the proof of Banos's criminal responsibility for the act of bodily violation by Jimenez, who had been a "defendant" and was convicted in a 2012 prosecution based on the same offense. Thus, the allegation in question is fully consistent with the proof at trial and Banos's substantial rights. See Gollihar, 46 S.W.3d at 258. Banos has failed to carry her burden to demonstrate a material variance that prejudiced her substantial rights. See Santana, 59 S.W.3d at 194.
Banos has not alleged any other insufficiencies in the evidence aside from those relating to variance, and we find none. The State's witnesses, including the complainant, testified cogently and in great detail as to the seven-year history of the abuse. The State's witnesses further testified as to Banos's role in encouraging and aiding the abuse by knowingly forcing her daughter to go to her abuser, as well as concealing the aftermath with lies and violence, despite her duty as M.J.'s mother to take reasonable action to prevent the abuse. See TEX. PENAL CODE ANN. § 7.02(a)(3). We conclude that, when viewing the evidence in a light most favorable to the verdict, the evidence supports a finding that any rational trier of fact could have found Banos guilty of aggravated sexual assault under the law of parties. See Jackson, 443 U.S. at 319; see also TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(i).
We overrule Banos's first two issues.
Likewise, Banos's third issue is predicated upon the same variance arguments as her first two issues, but simply expresses this conclusion as an error in granting directed verdict. We also review the denial of a directed verdict under a legal sufficiency or "no evidence" standard. Garza v. State, 398 S.W.3d 738, 743 (Tex. App.—Corpus Christi 2011, pet ref'd). We have already held that there was no material variance, and thus the predicate for this issue is inviable because only a material variance will render the evidence insufficient. See Gollihar, 46 S.W.3d at 257. We overrule Banos's third issue.
III. CONCLUSION
We affirm.
NELDA V. RODRIGUEZ
Justice Do not publish.
TEX. R. APP. P. 47.2(b). Delivered and filed the 25th day of February, 2016.