Opinion
05-20-00051-CR
05-17-2022
FRANCISCO JAVIERROSALES SANTAMARIA, Appellant v. THE STATE OF TEXAS, Appellee
Do Not Publish Tex.R.App.P. 47.2(b)
On Appeal from the 291st Judicial District Court Dallas County, Texas Trial Court Cause No. F17-72122-U
Before Justices Molberg, Reichek, and Garcia
MEMORANDUM OPINION
MANDA L. REICHEK JUSTICE
A jury convicted Francisco JavierRosales Santamaria of aggravated sexual assault of a child under the age of fourteen, and the trial court assessed punishment at thirty-five years in prison. In two issues, appellant challenges the sufficiency of the evidence to support his conviction and urges this Court to abandon the Jackson v. Virginia sufficiency standard. In a cross-issue, the State asks that we modify the judgment to delete an inapplicable age-based special finding under article 42.017 of the Texas Code of Criminal Procedure. For reasons set out below, we overrule appellant's issues and sustain the State's issue. Accordingly, we modify the trial court's judgment as requested and affirm the judgment as modified.
443 U.S. 307, 319 (1979).
Factual Background
Mother and appellant met in 2010, moved in together, and eventually married in 2014. When they met, Mother had three children, including J.A., who was four or five years old at the time and is the complaining witness in this case. Mother and appellant had two children together.
In 2011, the family moved to Iowa, where J.A. said appellant began abusing her at the age of seven or eight. According to J.A., the abuse continued for years and happened "every day when he could get a chance" and no one was at home. J.A. did not tell her Mother because appellant warned that if her Mother found out, she would "kill" them. J.A. believed appellant. She also remained quiet about the sexual abuse when child protective services in Iowa investigated a report that appellant hit her with a belt.
In June 2016, Mother and the children moved back to Texas. Appellant was to follow later and, in the meantime, would return for visits. One such visit was Labor Day weekend in September 2016. At the time, Mother and the children were living in a house in Garland. J.A. recounted an incident of sexual abuse by appellant that occurred during that visit.
J.A. testified that one morning, after her mother left for work, J.A. went to the bedroom to ask appellant if she should get ready for school. Appellant said "not yet" and told her to "lay down" with him. J.A., who was eleven years old, did as she was told. J.A. testified that appellant began touching her and then pulled down her shorts, got on top of her, and touched her vagina with his hands and penis. She did not remember if appellant put his penis inside her vagina but thought he was "just pressing on" her vagina with his penis. During the assault, appellant's thirteen-year-old brother, M.P., entered the room, and appellant got off of her and pretended to be asleep. J.A. said after this incident, appellant "just stopped" abusing her. She said that either that day or another day, he told her it was "too dangerous" to continue doing what he was doing to her.
Eleven months later, J.A. was in the car with Mother. Her Mother asked whether she had begun menstruating, and J.A. told her no. According to J.A., Mother thought that was "weird" and said she was going to take her to the doctor. J.A. "freaked out" because she thought the doctor would be able to tell that someone had "touched" her. She began crying and told Mother that appellant used to touch her at times when Mother was not home or when Mother was sleeping. Subsequently, J.A. was examined at the REACH Clinic at Children's Medical Center Dallas and was interviewed by a forensic interviewer at the Dallas Children's Advocacy Center (DCAC).
According to Dr. Suzanne Dakil, the medical director at REACH and a board-certified child abuse pediatrician, the examination revealed no trauma or external signs of assault, but Dakil said that was normal given the abuse that was described. She also explained that it is rare to see signs of trauma or external injury, even in acute cases, because the mucosal tissues heal rapidly.
Bibiana Gutierrez, a forensic interviewer with DCAC, said she interviewed J.A., who "articulated" an offense. During the interview, Gutierrez looked for sensory and peripheral details in J.A.'s account, and she also looked for "red flags" that would suggest J.A. had been coached. J.A. provided sensory and peripheral details, and Gutierrez observed no red flags with J.A.
Finally, J.A.'s account of the incident was corroborated by M.P., who testified at trial that he entered the bedroom that morning, also to ask about school. He said it was dark and he was half-asleep, but he saw appellant and J.A. under the covers, and appellant was on top of J.A. He said appellant got off of J.A. and "was like, oh, it's time for school" and "acted like nothing happened." M.P. did not tell anyone what he saw because he did not think they would believe him or appellant "would just make up an excuse."
Analysis
A. Sufficiency of the Evidence
In his first issue, appellant argues the State's evidence is "disjointed, inconsistent, unlikely and doesn't comport with human experience." He suggests that J.A.'s account of abuse was implausible because (1) she claimed to have been abused "every day for 5-6 years" in Iowa despite several people living in the house at different times yet he is "caught" during the "one and only time" he abused J.A. in Texas (2) Mother and J.A. gave inconsistent accounts of the car conversation, and (3) there was no forensic evidence.
In reviewing the sufficiency of the evidence, we examine the evidence in the light most favorable to the jury's verdict to determine whether any rational trier of fact could have found the essential elements beyond a reasonable doubt. Jackson, 443 U.S. at 319; Queeman v. State, 520 S.W.3d 616, 622 (Tex. Crim. App. 2017). This standard accounts for the factfinder's duty to resolve conflicts in the evidence, to weigh the evidence, and to draw reasonable inferences from basic to ultimate facts. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). The jury is the sole judge of the weight and credibility to be given to the testimony. 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 jury. See Montgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012).
As applicable here, a person commits an offense if the person intentionally or knowingly causes the sexual organ of a child under the age of fourteen to contact the sexual organ of another person. See Tex. Penal Code Ann. § 22.021(a)(1)(B)(iii), (a)(2)(B). In such a case, the testimony of the child victim alone is sufficient to support a finding of guilt. See Tex. Code Crim. Proc. Ann. art. 38.07(a), (b)(1); Lee v. State, 186 S.W.3d 649, 656 (Tex. App.-Dallas 2006, pet. ref'd).
Here, J.A. testified that appellant told her to "lay down" with him in the bed, and she did as she was told. Appellant removed her shorts, got on top of her, touched her vagina with his hand, and pressed his penis against it. While this evidence alone was sufficient to support appellant's conviction, J.A.'s brother, M.P., corroborated her account. M.P testified he walked into the room one morning and saw appellant on top of J.A. under the bedcovers.
As for appellant's assertions regarding the evidence, J.A. did not testify she was abused "every day for 5-6 years"; rather, she said appellant abused her everyday he had the chance and when no one was home. Regardless, the fact that appellant was able to avoid detection in Iowa during years of abuse but was discovered during the first instance of abuse in Dallas does not render the evidence insufficient, nor do any perceived inconsistencies in testimony about the car conversation or lack of forensic evidence. Dr. Dakil testified it was normal to not to find signs of trauma or injury, given J.A.'s description of the assault. Appellant's complaint is nothing more than a challenge to the credibility of the child witness, but the jury determines the witnesses' credibility, the weight to be given their testimony, and which testimony to believe or disbelieve.
Considering all of the evidence presented, we conclude a rational jury could have found beyond a reasonable doubt that appellant committed aggravated sexual assault of J.A. We overrule the first issue.
2. Jackson v. Virginia standard
In his second issue, appellant urges the Court to abandon the Jackson v. Virginia legal sufficiency standard of review. This is the standard set forth by the United States Supreme Court and is the "'constitutional minimum required to enforce the due process right' to be free from conviction except on proof beyond a reasonable doubt." Griffin v. State, 614 S.W.2d 155, 158 (Tex. Crim. App. [Panel Op.] 1981). The Texas Court of Criminal Appeals has stated this 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 that the State is required to prove beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010). As an intermediate appellate court, this Court is bound by and has no authority to disregard or overrule the decisions of the court of criminal appeals. See State ex rel. Vance v. Clawson, 465 S.W.2d 164, 168 (Tex. Crim. App. 1971); Hailey v. State, 413 S.W.3d 457, 489 (Tex. App.-Fort Worth 2012, pet. ref'd) (same). We overrule the second issue.
3. Cross-point
In a cross-point, the State asks this Court to correct the judgment by deleting a special finding under article 42.017 of the code of criminal procedure.
The trial court's judgment in this case contains the following finding:
THE COURT FINDS THAT AT THE TIME OF THE OFFENSE, DEFENDANT WAS YOUNGER THAN (19) YEARS OF AGE AND THE VICTIM WAS AT LEAST THIRTEEN (13) YEARS OF AGE. THE COURT FURTHER FINDS THAT THE CONVICTION IS BASED SOLELY ON THE AGES OF DEFENDANT AND THE VICTIM OR INTENDED VICTIM AT THE TIME OF THE OFFENSE. TEX. CODE CRIM. PROC. ART. 42.017jin [sic].
This finding could allow appellant to later petition the trial court for an exemption of certain sex-offender registration requirements. See Tex. Code Crim. Proc. Ann. art. 62.301 (a), (b). The State argues that appellant's aggravated sexual assault conviction does not support this finding. We agree.
The Texas Code of Criminal Procedure article 42.017 permits the trial court, in a judgment convicting a defendant of indecency with a child or sexual assault, to make a finding that (1) at the time of the offense, the defendant was not more than four years older than the victim and the victim was at least 15 years of age; and (2) the conviction is based solely on the ages of the defendant and the victim at the time of the offense. Tex. Code Crim. Proc. Ann. art. 42.017 (Vernon 2018); see also Tex. Penal Code Ann. §§ 21.11, 22.011 (Vernon 2019).
The original statute, enacted in 2001, provided for an age-based finding if the defendant was younger than 19 and the victim was at least 13 years of age at the time of the offense. See Act of May 22, 2001, 77th Leg., R.S., ch. 1159, § 8. The statute was amended in 2011 to its current form recited above. See Act of May 11, 2011, 82nd Leg., R.S., ch. 134, § 1. For unknown reasons, the finding contained in the judgment follows the language from the outdated statute.
Here, appellant was convicted of the aggravated sexual assault of eleven-year-old J.A., an offense for which an article 42.017 finding is not permitted. See Tex. Code Crim. Proc. Ann. art. 42.017; see also Tex. Penal Code Ann. § 22.021; Sirls v. State, 579 S.W.3d 651, 660 (Tex. App.-Houston [14th Dist.] 2019, no pet.).
This Court has the power to modify an incorrect judgment to make the record speak the truth when it has the necessary information before it to do so. Tex.R.App.P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex. App.-Dallas 1991, pet. ref'd).
We conclude the trial court was not permitted to make the article 42.017 finding. Accordingly, we sustain the State's issue and modify the trial court's judgment to delete the language.
We affirm the judgment as modified.
JUDGMENT
Based on the Court's opinion of this date, the judgment of the trial court is MODIFIED as follows:
To delete the age-based special finding, which cites article 42.017 of the Texas Code of Criminal Proceeding, contained on Page 2.
As MODIFIED, the judgment is AFFIRMED.