No. 14-06-00108-CR
Decided: July 3, 2007. DO NOT PUBLISH — TEX. R. APP. P. 47.2(b).
On Appeal from the 351st District Court Harris County, Texas Trial Court Cause No. 1027498.
Panel consists of Justices FROST, SEYMORE, and GUZMAN.
PER CURIAM.
A jury found appellant, Ricardo Rodriguez, guilty of aggravated sexual assault and sentenced him to forty years' confinement. In two issues, he contends the evidence is legally and factually insufficient to support his conviction. Our disposition is based on clearly settled law. Accordingly, we issue this memorandum opinion and affirm. See TEX. R. APP. P. 47.4.
I. BACKGROUND
On April 30, 2005, appellant had oral and vaginal sex with C.L., his twenty-year old mentally retarded sister-in-law. At the time, C.L. was living with her mother (appellant's mother-in-law), Lisa, but frequently spent weekends visiting her sister, Denise Rodriguez, and her husband, appellant, at their apartment in Houston, Texas. Appellant testified at trial that he had sex with C.L. approximately four or five times between November 2004 and April 2005. During this period, Denise and her children often spent weekends with Lisa, leaving appellant and C.L. alone at the apartment. Appellant's sexual encounters with C.L. came to light when C.L. was questioned by Lisa. Lisa became suspicious when appellant was irrate that C.L. was being placed in a group home in New Braunfels, Texas. When questioned by Lisa and a family friend, named Jessica Petter, C.L. gave a detailed account of her sexual encounters with appellant, including the use of sex toys and pornography. The following day, Denise and Jessica found the sex toys and pornography at appellant's apartment in the place indicated by C.L. C.L. recounted the sexual encounters with appellant on three separate occasions, each time to a different person. She first told her story to Lisa, then to Jessica, and yet a third time to Denise. Jessica testified at trial that each recounting of the story was in C.L.'s own words and each time the details of the story were consistent. The day after she was informed of the sexual encounters, Lisa filed a report with the Houston Police Department. Officer Bobby Roberts took sworn statements from Lisa and Jessica. C.L. was interviewed at the Children's Assessment Center by a forensic interviewer while Officer Roberts watched on a monitor in another room. Officer Roberts testified that C.L.'s story was consistent with the sworn statements provided by Lisa and Jessica. Subsequently, appellant was charged with aggravated sexual assualt. II. STANDARD OF REVIEW
In determining legal sufficiency, we view all the evidence in the light most favorable to the verdict and then decide whether a 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); Salinas v. State, 163 S.W.3d 734, 737 (Tex.Crim.App. 2005). The jury, as the sole judge of the credibility of the witnesses, is free to believe or disbelieve all or part of a witness's testimony. Jones v. State, 984 S.W.2d 254, 257 (Tex.Crim.App. 1998). We do not engage in a secondary evaluation of the weight and credibility of the evidence; however, we determine whether the jury reached a rational decision. Muniz v. State, 851 S.W.2d 238, 246 (Tex.Crim.App. 1993); Harris v. State, 164 S.W.3d 775, 784 (Tex.App.-Houston [14th Dist.] 2005, pet. ref'd). In determining factual sufficiency, we view all the evidence in a neutral light and set aside the verdict "only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust." Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App. 1997) (quoting Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996)). Before we reverse for factual insufficiency, we must first conclude, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury's verdict. Watson v. State, 204 S.W.3d 404, 417 (Tex.Crim.App. 2006). When reviewing evidence, we must avoid intruding on the fact-finder's role as the sole judge of the weight and credibility of the witness testimony. Johnson v. State, 23 S.W.3d 1, 9 (Tex.Crim.App. 2000). We do not re-evaluate the credibility of witnesses or the weight of evidence, and will not substitute our judgment for that of the fact-finder. Johnson v. State, 967 S.W.2d 410, 412 (Tex.Crim.App. 1998). Appellant was charged with aggravated sexual assault by unlawfully, intentionally, and knowingly causing the penetration of the sexual organ of C.L., a disabled person, by placing his sexual organ in C.L.'s sexual organ without her effective consent. See TEX. PENAL CODE ANN. §§ 22.021(a)(1)(A)(i) and (a)(2)(C) (Vernon Supp. 2006). A sexual assault is without the consent of the other person if the actor knows that as a result of mental disease or defect the other person is at the time of the sexual assault incapable either of appraising the nature of the act or of resisting it. TEX. PENAL CODE ANN. §§ 22.011(b)(4), 22.021(c) (Vernon Supp. 2006). A disabled individual is a person older than fourteen years of age who by reason of mental disease or defect is substantially unable to protect herself from harm or to provide food, shelter, or medical care for herself. TEX. PENAL CODE ANN. § 22.04(c)(3) (Vernon Supp. 2006). III. DISCUSSION
Appellant challenges legal and factual sufficiency of the evidence to support the jury's finding that C.L., as a result of her mental disease or defect at the time of the sexual encounters, was incapable either of appraising the nature of the act or of resisting it. Specifically, appellant contends C.L. was capable of appraising the nature of the sexual act or resisting it because C.L. testified that she had engaged in sexual activity with her cousin prior to this incident, enjoyed the sexual activity with appellant, and liked looking at appellant's "dirty" books. He also claims that she was not a disabled person. Initially, we note that whether or not C.L. gave actual consent is immaterial. See Rider v. State, 735 S.W.2d 291, 293 (Tex.App.-Dallas, 1987, no writ). The issue is C.L.'s mental capacity to consent. See id. The purpose of the effective consent provision of section 22.011(b)(4) is to protect those whom the law deems incapable of consent. See id. If the law deems C.L. incapable of giving consent, she is also incapable of withholding consent. See id. In applying this provision, we focus on cognitive and physical elements to determine C.L.'s ability to appraise the nature of the act or to resist it. See id. at 292. In evaluating appellant's complaint, we consider decisions from two of our sister courts. First, in Martinez v. State, the defendant sexually assaulted a twenty-nine-year-old woman whom he met while she was out with her mother earlier that evening. 634 S.W.2d 929, 932 (Tex.App.-San Antonio 1982, writ ref'd). At trial, the complainant's family members testified regarding the history of her mental deficiencies and her current abilities. Id. at 933. The complainant herself testified to her version of the events. Id. There was also medical and psychiatric evidence showing the complainant's mental retardation to be obvious after only a short time spent conversing with her and that the complainant was easily deceived by others. Id. at 933-34. The complainant was in the moderate range of mental retardation with an I.Q. ranging from 55 to 65. Id. at 933. The court psychiatrist testified that the complainant's understanding of sexual intercourse was primitive at best. Id. In his opinion, she was incapable of appraising the act and of resisting it. Id. The San Antonio Court of Appeals found the evidence sufficient to support the jury's finding that the complainant in that case was incapable of either appraising the nature of the act or of resisting it. Id. at 936. Second, in Rider v. State, the defendant worked at a residential facility for mentally retarded adults. 735 S.W.2d at 291. The defendant was convicted of sexually assaulting a twenty-nine-year-old resident of the facility. Id. At trial, the complainant's mother testified that he had spent most of his life in facilities for the mentally retarded. Id. at 292. The complainant also testified. Id. at 293. Evidence showed that the complainant was considered mildly retarded with an I.Q. of 51. Id. at 292. The Dallas Court of Appeals found the evidence sufficient to support the jury's finding that the complainant was incapable of either appraising the nature of the act or of resisting it. Id. at 293. The type of evidence presented in this case is similar to that presented in Martinez and Rider. At trial, there was a significant amount of testimony concerning C.L.'s cognitive and physical abilities. C.L.'s mother, Lisa, testified that from birth C.L. was slow to learn and in kindergarten she was diagnosed with a learning disability. Because of her disability, C.L. is eligible for and receives Supplemental Social Security Income (SSI). In order to remain eligible for SSI, C.L. undergoes psychological and psychiatric testing every two years. C.L. was enrolled exclusively in special education classes until she graduated high school. C.L. lives in a group home in Austin, Texas, because she is unable to handle money or provide for her nutritional and medical needs. Lisa did acknowledge that C.L. is able to bathe, prepare microwave meals, and dress without assistance. Lisa's description of C.L.'s limitations was supported by testimony from Donna Fitzgerald, C.L.'s aunt, and Jessica Petter, a close friend. Cherie Thomas, the house manager at the group home where C.L. currently resides, testified that C.L. has an I.Q. of 53, which is in the mild to moderate range of mental retardation. She opined that C.L. would not be able to resist someone who is pressuring her to engage in sexual activity. According to Thomas, C.L. is prone to suggestion and can be cajoled into agreeing with a story that is not true. Results of psychological testing conducted in April 2005 were also introduced at trial. The tests indicate C.L.'s social and communication skills are at the level of a person three years and eight-months old. The tests showed that her broad independence is at the level of a person five years and ten-months old. In addition to hearing the testimony of friends and family, the jury observed C.L. as she testified about details of her sexual encounters with appellant. C.L. was led through one version of her account by the prosecutor, in which she effectively characterized the sexual encounter as a sexual assault. Then, she was led through a completely different version by the defense attorney in which she testified she seduced appellant. In both versions, C.L. agreed with the attorney asking her questions. The jury was free to infer from C.L.'s testimony that she is prone to suggestion, an observation offered by several witnesses. Yet, the jury was free to believe the version offered by the State. C.L.'s mother, her current care-giver, and special education teacher each respectively testified that she is a person older than fourteen years of age who by reason of physical or mental disease or defect is substantially unable to protect herself from harm or to provide her own food, shelter, or medical care. See TEX. PENAL CODE ANN. § 22.04(c)(3) (Vernon Supp. 2006). Appellant and his wife, Denise, were the only defense witnesses. They testified that C.L. is smarter than she appears. Appellant admitted that he knew C.L. was a special education student and a competitor in the Special Olympics. Appellant also testified that he had been told C.L. had the mind of a nine-year old. However, appellant testified that C.L. did not seem mentally retarded to him. He thought that C.L. mentally seemed like a twenty-year old when she was with him. The jury heard the testimony of all of the witnesses, including C.L. The jury was in a much better position to determine whether C.L. was capable of appraising the nature of the act or of resisting it than is this court, and their finding will not be disturbed where it is supported by the record. See Martinez, 634 S.W.2d at 935-36. The jury is the sole judge of the weight and credibility of the witnesses' testimony. Johnson, 23 S.W.3d at 9. The jury may believe some witnesses and refuse to believe others. See Nixon v. State, 572 S.W.2d 699, 700-01 (Tex.Crim.App. 1978). Examining the evidence in the light most favorable to the verdict, we conclude that a reasonable jury could have found beyond a reasonable doubt that C.L., as a result of her mental disease or defect at the time of the sexual encounter with appellant, was incapable either of appraising the nature of the act or of resisting it and was a disable person. Therefore, the evidence is legally sufficient to support the jury's verdict. Viewing the evidence in a neutral light, we further conclude that the jury's verdict is not contrary to the great weight and preponderance of the evidence. Accordingly, the evidence is factually sufficient to support the verdict. Appellant's first and second issues are overruled, and the trial court's judgment is affirmed.