Opinion
No. 05-18-01094-CR
05-15-2020
AUGUSTO AMBROSIO CARRERA, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 416th Judicial District Court Collin County, Texas
Trial Court Cause No. 416-82936-2016
MEMORANDUM OPINION
Before Justices Whitehill, Osborne, and Carlyle
Opinion by Justice Whitehill
A jury convicted appellant of continuous sexual abuse of a child and multiple counts of indecency with a child by contact and sexual assault of a child. Appellant argues that: (i) the evidence is insufficient to support his continuous sexual abuse of a young child and sexual assault of a child convictions and (ii) he suffered egregious harm from jury charge error. We affirm the trial court's judgments.
I. BACKGROUND
Appellant began abusing YM, a special needs child, in different ways beginning in 2013 when she was twelve years old. In 2016, mother came home early and discovered appellant having sexual intercourse with YM, who outcried immediately. A subsequent forensic interview detailed a long history of abuse.
In a multi-count indictment, appellant was charged with continuous sexual abuse of a child, four counts of indecency with a child by contact, and three counts of sexual assault of a child. YM testified at trial, and a jury convicted appellant on all counts.
The trial court assessed concurrent sentences of forty-five years in prison on the continuous sexual abuse of a child offense and twenty years in prison for each of the remaining offenses and entered judgment accordingly. Appellant appeals from those judgments.
II. ANALYSIS
A. First Issue: Is the evidence sufficient to support appellant's convictions?
Appellant argues the evidence is insufficient to supports his convictions for continuous sexual abuse of a young child and sexual assault of a child as alleged in counts one, four, and five of the indictment. We disagree.
1. Standard of Review
We review the sufficiency of the evidence to support a conviction by viewing all of the evidence in the light most favorable to the verdict to determine whether any rational factfinder could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979).
This standard gives full play to the factfinder's responsibility to resolve testimonial conflicts, weigh the evidence, and draw reasonable inferences from basic facts to ultimate facts. Id. at 319; Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App. 2015). And the factfinder is the sole judge of the evidence's weight and credibility. See TEX. CODE CRIM. PROC. art. 38.04; Dobbs v. State, 434 S.W.3d 166, 170 (Tex. Crim. App. 2014).
Thus, when performing an evidentiary sufficiency review, we may not re-evaluate the weight and credibility of the evidence and substitute our judgment for that of the factfinder's. See Montgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012). Instead, we determine whether the necessary inferences are reasonable based upon the cumulative force of the evidence when viewed in the light most favorable to the verdict. Murray, 457 S.W.3d at 448. We must presume that the factfinder resolved any conflicting inferences in the verdict's favor and defer to that resolution. Id. at 448-49. The standard of review is the same for direct and circumstantial evidence cases; circumstantial evidence is as probative as direct evidence in establishing guilt. Dobbs, 434 S.W.3d at 170; Acosta v. State, 429 S.W.3d 621, 625 (Tex. Crim. App. 2014).
2. Continuous Sexual Abuse of a Child
Appellant argues that the evidence is insufficient to support his conviction for continuous sexual abuse of a young child because the evidence only proved sexual contact after YM's fourteenth birthday and for a period less than thirty days.
To convict appellant of sexual abuse of a young child, the State had to prove that he committed two or more acts of sexual abuse of YM during a period of thirty days or more when YM was younger than fourteen and appellant was seventeen or older. See TEX. PENAL CODE § 21.02(b). Here, the indictment alleged that the sexual abuse consisted of appellant touching YM's genitals with his hand.
Appellant focuses on YM's testimony concerning abuse that occurred four months before Mother discovered the abuse (when YM was fifteen) and ignores YM's testimony that appellant touched her vagina with his hand over a period of a "few months" before she was fourteen.
"The testimony of a child victim alone is sufficient to support a conviction for continuous sexual abuse of a child." Garner v. State, 523 S.W.3d 266, 271 (Tex. App.—Dallas 2017, no pet.).
Although YM testified that she only lived with Mother and appellant for four months and did not go to their house when she did not live there, Mother testified that YM stayed with her and with her father after Mother moved in with appellant in 2012. The trier of fact may choose to believe or disbelieve any part of a witnesses' testimony. See Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). And the jury could have considered YM's special needs when assessing her credibility on the timing of events.
Therefore, on this record, the evidence is sufficient to support appellant's conviction for continuous sexual abuse of a child.
3. Sexual Assault of a Child
Count four alleged child sex assault by organ to organ contact and count five alleged child sex assault by organ penetration.
Appellant argues that the evidence is insufficient to support his conviction for these offenses because: (i) there was no evidence the offenses occurred before YM was fourteen; (ii) there is no evidence that YM saw appellant's penis; and (iii) the evidence showed only that he touched YM's vagina with his hand without digital penetration.
1. Count Four
Appellant's first argument rests on a misreading of the indictment and applicable statute. Appellant contends that count four of the indictment alleged that he caused YM's sexual organ to touch his sexual organ when YM was less than fourteen years old, but the evidence shows that she was fifteen. He also contends that there is no evidence that his sexual organ touched YM's sexual organ.
But count four alleges that appellant committed sexual assault of a child by causing the sexual organ of "a child" younger than seventeen (YM) to contact his sexual organ. See TEX. PENAL CODE § 22.011(a)(2)(C). The sexual assault statute defines "a child" as "a person younger than 17 years of age." Id. 22.011(c).
YM testified that appellant put his penis in her vagina at least twice on the day Mother discovered the abuse. The evidence shows that YM was fifteen years old at the time. Thus, the evidence shows that YM was "a child" as defined by the statute. Id.
As appellant argues, YM testified that she did not see appellant's penis when it contacted her vagina. Such evidence, however, is not required. Rather, there must only be sufficient evidence from which a rational jury could conclude that it was appellant's sexual organ that made the contact. See TEX. PENAL CODE § 22.011(a)(2)(C).
YM was able to distinguish between instances where appellant's hand, mouth, and penis contacted her sexual organ. In addition, YM said that appellant pulled her legs up in the air, was on top of her, and put his "middle part" in YM. From this evidence, the jury could rationally infer that YM was referring to appellant's sexual organ. See Alvarado v. State, No. 01-14-00894-CR, 2016 WL 7694355, at *3 (Tex. App.—Houston [1st Dist.] Dec. 22, 2016) (mem. op., not designated for publication) (evidence sufficient when child did not see sexual organ but provided other sensory detail).
2. Count Five
Count five alleged that appellant caused the penetration of YM's sexual organ with his finger. See TEX. PENAL CODE §22.011(a)(2)(A). According to appellant, there is no evidence of penetration.
But Eli Molina, the forensic examiner who interviewed YM testified that YM told him that appellant put his hand "in the line in the middle inside her [sexual organ]." Penetration of the female sexual organ occurs so long as the contact could reasonably be regarded as more intrusive than the outer lips. Vernon v. State, 841 S.W.2d 407, 409 (Tex. Crim. App. 1992). Thus, the contact YM described constitutes penetration as required by the statute. See Steadman v. State, 280 S.W.3d 242, 247-48 (Tex. Crim. App. 2009).
Therefore, the evidence is sufficient to support appellant's convictions for sexual assault of a child. We resolve all sufficiency arguments in appellant's first issue against him.
B. Second Issue: Was there charge error that caused egregious harm?
Appellant's second issue argues that the court's charge was erroneous and harmful because: (i) it allowed the jury to convict him of continuous child sex abuse based on an abandoned predicate offense; (ii) the charge is conflicted "regarding the age limitations for continuous sexual [abuse] as to allow the jury to convict without finding that the requisite offense must be committed prior to YM turning 14"; and (iii) it alleged a manner and means of committing indecency with a child by contact that was inconsistent with the manner and means alleged in the indictment.
1. Standard of Review
We review charge error by determining first whether error exists, then evaluating the harm caused by any error. Arteaga v. State, 521 S.W.3d 329, 333 (Tex. Crim. App. 2017). When a defendant timely objects to the charge at trial, reversal is required if the reviewing court finds "some harm" to the defendant. Mendez v. State, 545 S.W.3d 548, 552 (Tex. Crim. App. 2018).
On the other hand, when, as here, a defendant does not object to the charge, we review the record for egregious harm. Sanchez v. State, 376 S.W.3d 767, 775 (Tex. Crim. App. 2012).
To establish egregious harm, appellant must show that he has suffered actual, rather than merely theoretical, harm. Ngo v. State, 175 S.W.3d 738, 750 (Tex. Crim. App. 2005). Errors that result in egregious harm are those that affect the very basis of the case, deprive the defendant of a valuable right, or vitally affect a defensive theory. Id.
In examining the record for egregious harm, we consider (i) the entire jury charge, (ii) the state of the evidence, including the contested issues and the weight of the probative evidence, (iii) the final arguments of the parties, and (iv) any other relevant information revealed by the record of the trial as a whole. Allen v. State, 253 S.W.3d 260, 264 (Tex. Crim. App. 2008).
2. Abandoned Predicate Offense
The indictment alleged aggravated child sex assault "AND/OR" indecency with a child by contact as predicate offenses underlying the continuous child sex abuse. But at trial, the State abandoned aggravated sexual assault as a predicate offense and instead, relied on only indecency with a child by contact as the predicate offense. The charge's abstract paragraph defined "acts of sexual abuse" as both aggravated sexual assault of a child and indecency with a child.
Nonetheless, it is the charge's application paragraph, not the abstract portion, that authorizes the conviction. Crenshaw v. State, 378 S.W.3d 460, 466 (Tex. Crim. App. 2012). If the application paragraph correctly instructs the jury, an erroneous definition is not egregious. Gonzales v. State, No. 05-18-00895-CR, 2019 WL 3059878, at *6 (Tex. App.—Dallas July 12, 2019, pet. ref'd) (mem. op., not designated for publication).
Here, the application paragraph said:
If you find from the evidence beyond a reasonable doubt that . . . [appellant] did then and there, during a period that was 30 days or more in duration, commit two or more acts of sexual abuse against [YM], said acts of sexual abuse having been violations of one or more of the following penal laws, including . . . Indecency with a child by sexual contact . . . then you will find the defendant guilty of continuous sexual abuse of a young child . . . .(emphasis added).
Appellant maintains that the "workable relationship" between the abstract and application paragraphs makes clear that the erroneous reference to aggravated sexual assault in the abstract is included in the application. According to appellant, this is because the charge incorporates the abstract by using the phrases "bearing in mind the foregoing instructions," and "acts of sexual abuse having been violations of one or more of the following penal laws, including . . . ." (Emphasis added).
Appellant provides no support for the proposition that this general language vitiates the correct application paragraph and renders the charge erroneous or harmful. Moreover, although the use of the word "including" may signify more than one, the only "following" penal law offense that was referenced was indecency with a child by contact. Thus, reading the charge in the appropriate context reflects that this aspect of the charge did not cause appellant egregious harm.
3. Age Limitations Conflicts
Appellant also argues that the charge does not make clear that all acts of sexual abuse supporting continuous sexual abuse of a child had to occur before YM was fourteen.
But even if the abstract portion is unclear, the application paragraph instructs the jury that it must find:
At the time of the commission of the acts of sexual abuse, the defendant was seventeen (17) years of age and [YM] was a child younger than fourteen (14) years of age.Thus, any error in the abstract portion did not cause appellant egregious harm. See Medina v. State, 7 S.W.3d 633, 640 (Tex. Crim. App. 1999).
4. Failure to Track Indictment's Language
Finally, appellant argues that the count three instruction was erroneous because it alleged a manner and means of committing indecency with a child by contact that differed from the manner and means alleged in the indictment.
The indictment alleged that appellant committed the offense by touching YM's breasts with his mouth, whereas the instruction referred to touching YM's breasts with his hand. This variance is erroneous. See Fella v. State, 573 S.W.2d 548, 548 (Tex. Crim. App. 1978) (charge must not enlarge the alleged offense to authorize conviction on a theory not alleged in indictment).
But because there was no trial objection, we consider whether the error caused egregious harm. See Sanchez v. State, 376 S.W.3d 767, 775 (Tex. Crim. App. 2012). Allen v. State, 253 S.W.3d 260, 264 (Tex. Crim. App. 2008).
We begin with the charge itself. See Allen, 253 S.W.3d at 264. The failure to track the indictment's language concerning the manner and means of committing the offense is erroneous, and thus weighs in favor of finding harm.
Next, we consider the state of the evidence. Appellant's defensive theory was that he never sexually abused YM, not that he touched her breasts with his hand but not his mouth. Thus, the manner in which appellant touched YM's breasts was not a contested issue at trial and did not "vitally affect a defensive theory." See Arrington v. State, 451 S.W.3d 834, 840 (Tex. Crim. App. 2015).
Furthermore, YM testified that appellant put his mouth on her breasts more than once and touched her breasts with his hands many times. But the question of which body part appellant used to touch YM's breasts was not argued to the jury. Instead, appellant argued that he lacked the opportunity to sexually abuse YM the day Mother caught him, the absence of DNA, and an allegedly faulty police investigation. Thus, the state of the evidence and the arguments weigh against finding harm.
Finally, nothing else in the record supports egregious harm. Voir dire did not include any discourse on specific types of touching and there is nothing further that might impact the analysis.
Considering the foregoing, we conclude that the charge irregularity did not affect the very basis of the case, deprive appellant of a valuable right, or vitally affect a defensive theory. See Arrington, 451 S.W.3d at 840.
Accordingly, we resolve all parts of appellant's second issue against him.
III. CONCLUSION
Having resolved all of appellant's issues against him, we affirm the trial court's judgment.
/Bill Whitehill/
BILL WHITEHILL
JUSTICE Do Not Publish
TEX. R. APP. P. 47.2(b)
181094F.U05
JUDGMENT
On Appeal from the 416th Judicial District Court, Collin County, Texas
Trial Court Cause No. 416-82936-2016.
Opinion delivered by Justice Whitehill. Justices Osborne and Carlyle participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered May 15, 2020