Cleofas Alejandro Ruiz v. State ( 2017 )

AFFIRMED; Opinion Filed July 28, 2017.
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-16-00970-CR
CLEOFAS ALEJANDRO RUIZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 296th Judicial District Court
Collin County, Texas
Trial Court Cause No. 296-80461-2016
MEMORANDUM OPINION
Before Justices Lang, Myers, and Stoddart
Opinion by Justice Myers
Appellant Cleofas Alejandro Ruiz was convicted following a trial before the court of
continuous sexual abuse of a child under the age of fourteen, and punishment was assessed at
twenty-seven years’ imprisonment. In two issues, appellant argues the trial court erred by
admitting a written confession and that the evidence is insufficient to support the conviction. We
affirm.
BACKGROUND
The complainant in this case, B.O., fifteen years old at the time of trial, testified that she
was about four or five when appellant, her stepfather, moved into the home she shared with her
mother, Sara, and her younger sister. For the first few years, Sara, appellant, and their newborn
daughter shared one of the three bedrooms in the home, appellant’s son and nephew shared
another room, and B.O. and her younger sister shared the third room. B.O. was not sure where
appellant’s teenaged daughter Rebeca slept when she stayed with them, but B.O. thought it was
probably the boys’ room. Although B.O. and her younger sister had bunk beds, they often slept
together in the bottom bed because neither one liked sleeping on the top bed. When they shared
a bed, B.O. would sleep on the outside; her sister slept next to the wall. Her sister was a sound
sleeper and difficult to wake up.
Beginning when B.O. was six or seven, appellant started doing things to her that made
her feel uncomfortable. The first instance of sexual abuse B.O. could recall occurred in her room
when her sister was sleeping next to her. She remembered “[g]etting touched and stuff while I
was trying to sleep,” and that appellant’s hands and mouth touched her vagina and face. She
would not usually hear him come into the room, but would wake up while things were
happening. B.O. testified that there were times when appellant would take off her clothes; at
other times he would pull up her nightgown or shirt. If she was covered by a blanket, appellant
removed it. He would spread her legs and touch her vagina. He would also rub her vagina with
his hand. Appellant used the tips of his fingers to part and touch the inside of the “lips” of the
vagina, but B.O. did not recall anything ever going in her vagina. Rubbing was primarily what
appellant would do to her. The sexual abuse happened both over and under her clothes, and
there were times when her eyes were open and times when they were closed. If she rolled over
or moved her arms, appellant would stop.
The sexual abuse occurred between three to five nights a week, and went on for more
than two years. B.O. did not remember exactly how long the sexual abuse went on, but she knew
it happened before she turned fourteen years old. She recalled one occasion when appellant was
in the room, she opened her eyes, and his mouth was down by her vagina. B.O. testified that she
could feel his mouth touching her vagina, and that he was using his tongue. When she moved
appellant stopped. Another time, B.O. heard appellant’s pants unzip and felt his penis touching
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her mouth.
When she and appellant were at home and her mother was at work, there were times
when appellant would dress B.O. in one of his T-shirts, her mother’s high heels, and her
stockings or socks, and have her walk over to the door and bend over. Sometimes she was not
wearing underwear when she did this. Appellant would have her lie on the bed, put a pillow over
her face, and spread her legs. She testified that appellant was holding a cellphone as he did this,
and would tell her he wanted to show her mother how good she looked in her clothes. One time
when appellant and B.O. were lying on her parents’ bed watching a movie, appellant grabbed her
hand and had her rub his penis over his clothes. B.O. testified that she could feel appellant’s
penis and that it felt “[h]ard.” Asked how long appellant kept her hand there, B.O. said, “Not
long.”
B.O.’s biological father first learned about the sexual abuse in December of 2015, when
he was driving her home from counseling. That day, B.O.’s boyfriend had written a text
message to her saying he did not like appellant, which B.O. read aloud. Her father asked why
her boyfriend did not like appellant, and B.O. said it was because appellant touched her when she
was younger. Her father talked to B.O.’s counselor, Vilma Cea, a licensed marriage and family
therapist. B.O. told Cea about what had happened using, as B.O. explained, “just general
statements,” and not providing any details. Cea then called Child Protective Services.
Rachel McConnell of the Collin County Children’s Advocacy Center conducted B.O.’s
forensic interview, which was recorded on December 21, 2015, and published to the trial court.
McConnell testified that B.O. talked about appellant touching and rubbing the top part her vagina
with his hand on a regular basis. B.O. described an incident where she woke up and appellant’s
penis was on her lips. B.O. talked about how she usually kept her eyes closed because she was
scared but she would sometimes open them slightly, and she had seen appellant two or three
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times. B.O. also described various instances of sexual abuse that occurred before she was
fourteen years old. She talked about having to touch appellant’s penis with her hand while they
were watching television on her parents’ bed. She described having to dress up in a T-shirt and
high heels and bending over. Appellant would also hold a cell phone, cover her face with a
pillow, and tell her he wanted to show her mother what she looked like. McConnell testified that
B.O.’s “story always remained the same” and “[s]he never changed her story while we were in
there,” yet “[a] lot of her memories were all tied together.” She was not able “to break down a
lot of instances and give . . . a beginning to end” or walk the interviewer through “a whole time
line,” but she could “talk about different offenses or different types of sexual abuse.” B.O. was
likewise able to describe things that happened to her body that she remembered, heard, and saw.
McConnell explained this was not unusual because sexually abused children often have a
difficult time separating recurring events, and they only “remember specific events because
something different happened or something about that event was flagged in [their] head.”
The forensic interviewer was also asked whether it concerned her that B.O. never said
anything to her about appellant placing his mouth on B.O.’s sexual organ, which she described in
her testimony. McConnell said this did not concern her, explaining:
Kids remember things differently. It all goes back to that disclosure process. You
know, as she’s going through and talking about what happened with me, it could
trigger other memories after she leaves the interview and starts processing just the
entire situation. Other things could come up as time goes on. She might feel
more comfortable talking to someone else. Or she might just feel more
comfortable talking about it in general. And she might be in a different stage of
disclosure.
Sergeant Russell Driver, a criminal investigator with the Collin County Sheriff’s Office,
arrested appellant and transported him to an interview room in the Collin County Sheriff’s
Department, providing him with a copy of the statutory warnings on a pre-printed form. Upon
being taken into custody, appellant agreed to talk to Driver. Once they were in the interview
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room, Sergeant Driver administered the Miranda warnings to appellant, and appellant indicated
he understood his rights and participated in the approximately two-and-one-half hour interview
that followed. During the interview, which was video recorded and admitted at trial, appellant
explained that he met B.O.’s mother, Sara, in approximately 2005, when B.O. was about five
years old. Appellant shared a home in Collin County with Sara and his children and
stepchildren, which included his stepdaughter B.O. and her younger sister. Appellant and Sara
remained together for about ten years. At the time of appellant’s interview on December 22,
2015, they had been separated for approximately three months.
Sergeant Driver testified that, during the interview, appellant said he would go into the
girls’ bedroom almost every night to check on them, and he would pull down and straighten out
B.O.’s legs before pulling up the blanket. While straightening out the blanket and pulling down
or straightening B.O.’s legs, appellant started looking at her female sexual organ and, at some
point, he accidentally touched the “top part” of her “vagina area.” According to appellant, this
occurred about five times over a period of several years. Appellant said he touched B.O. for only
a second, but he denied touching her skin directly. He also denied that touching her excited him.
Driver testified that appellant said he felt “really dirty” after touching B.O. Appellant also
stated, according to Driver’s testimony, that touching the child once was as bad as touching her a
thousand times, and it was wrong to touch her even for a second.
Sergeant Driver drew a picture of a vagina and asked appellant to draw a box around the
area where he touched B.O. Appellant drew the box around the upper portion or pubic area of
the vagina and scribbled out the lower end to indicate he never went towards the “hole” area of
the vagina or put his finger inside it. The sergeant testified that he asked appellant if he could
see B.O.’s female sexual organ, and appellant stated he could not, which made no sense to Driver
given what appellant had said. Appellant also told Driver that he never touched the other girls in
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the way that he touched B.O.
Appellant denied putting his penis on B.O.’s mouth. He admitted giving her T-shirts and,
at other times, high heels to wear, but denied making her pose sexually. Appellant explained that
B.O. could wear her mother’s shoes and that dress shoes and hosiery were more appropriate
attire for church and other formal occasions.
Driver asked appellant, “Do you think [B.O.’s] lying to us?” Appellant replied, “I mean,
not about this.” He added: “I don’t think she lie. And I don’t think she’s making [it] up. But I
think [she] confused things.” Appellant also stated that B.O. had lied to her biological father and
mother in the past, but had never lied about him.
Appellant said it was difficult for him to listen to what was being said about him and to
think he had done that. Toward the end of the interview, the sergeant gave appellant an
opportunity to write an “apology” letter to B.O. Driver explained that the letter should be in
appellant’s words and contain whatever he wanted to say to B.O. Driver then left the room for
approximately fifteen minutes while appellant started writing a letter to B.O., which was
admitted at trial. When Sergeant Driver returned to the room, appellant continued writing for a
few more minutes. Appellant finished writing and handed the letter to Driver, and the sergeant
read the letter aloud to appellant. In the letter, appellant stated, in part, that when B.O. was
younger he tried to do his job as a parent and as a man of the house, and that
many times you were out of the blankets very cold in a corner and I used to pull
the blankets out from under you and tried to cover you with it, trying to pull your
legs and yourself straight on the bed because you were cold and sometimes I
touch you accidentally, but I did it again, up untill [sic] I think it was enough and
stop it. . . .
Appellant concluded the letter by asking for her forgiveness and saying he was “REALLY
SORRY” and that he would always love her. After he handed the letter to Sergeant Driver to
read, appellant said he “didn’t try to say something graphic because she’s still young.” Driver
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asked appellant if he used the word “accidentally” in the letter because of B.O.’s age. Driver
noted that appellant had admitted to touching B.O. approximately five times and that it was not
an accident when appellant touched her five times. Appellant said, yes, he used that word
because she was still young, and that he did not mean to hurt B.O. The sergeant told appellant he
did not want the child to look at the letter and think “she was the wrong person in all of this.”
Driver also asked, “But that’s what you meant when you told me that you softened it up; you
didn’t go into graphics?,” to which appellant said “yeah, yeah, yeah.”
Based on his training and experience, Driver felt that appellant had minimized the sexual
abuse he was willing to admit. Asked why he believed appellant would do this, the sergeant
recalled that when he asked appellant a question, he would divert the question to a different
answer, and that although appellant referred to the abuse as an accident, he also agreed it was not
an accident. In Driver’s opinion, appellant’s description of what occurred indicated he had
penetrated B.O.’s female sexual organ, although neither appellant nor the victim used the word
penetration. Driver noted that he had the information from the victim’s forensic interview. He
also referred to the diagram where appellant drew a box to indicate where he touched B.O., and
that if appellant touched that part of B.O. with his entire hand and fingers “he would have to
touch the line that separated it.” The sergeant also said that if appellant was rubbing B.O. he
would actually have been pushing down on the female sexual organ, which would have broken
“the plane of the top part anyway.”
Sara, B.O.’s mother, testified that she and appellant had been married eight years and that
they were still married at the time of trial, but she had filed for divorce. Sara testified that B.O.
shared a room with her younger sister, and that they had bunk beds but did not always sleep in
their separate beds. B.O. got her own room when she was approximately nine years old. While
they shared a room, B.O. woke up easily while her sister was hard to wake up. Sara confirmed
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that, at night, she and appellant would get up and check on the children to make sure they were
covered with blankets but that appellant did this more often. She would wake up and find
appellant gone from the bed, and “a handful of times” she went to check on the girls and found
appellant already there, standing by the bunk beds. She never noticed anything suspicious, but
added that he probably heard her coming because the floors creaked. When Sara would ask
appellant what he was doing, he said he was covering up the girls. When she was seven or eight
years old, B.O. told Sara and her biological father, Lee, that appellant would come into her room
and pull up her nightgown. Sara and Lee tried to get more information from her, but the child
“didn’t say anything else to us other than [appellant] pulled her nightgown up.” When asked
about this, appellant “said he was just covering her up,” and Sara and Lee decided B.O. must
have misunderstood what was happening and did not contact the authorities. Sara testified that
she first learned about the sexual abuse at the counselor’s office on December 17, 2015. She
admitted that B.O. had a problem with “telling stories” or exaggerating when she was younger––
from approximately age six until she was around seven or eight years of age––but this stopped
when B.O. was around nine or ten and it was no longer an issue.
Lee testified that he and Sara were married in 1994 and divorced amicably in 2005. They
had two children together—B.O. and her sister. Lee married another woman in 2011, but they
were divorcing at the time of trial and Lee and Sara had started dating again. Lee testified that
several years earlier, B.O. had said something about some interactions with appellant, but she did
not give any details and Lee thought she just “misunderstood what was happening,” so he took
no action. Then, after Lee and B.O. had left her counselor’s office, she read to him a text
message from her boyfriend that said, “I don’t like [appellant] for what he’s done to you.” When
Lee asked B.O. what this meant, “she said for that stuff whenever he touched me.” Lee asked if
she was talking about “from before,” and B.O. said “yeah.” Lee told B.O. that she would not
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“give us a straight answer . . . back then,” and she said she was scared. B.O. did not provide any
further details at that point.
Lee reported what he had learned to Sara and then told B.O.’s counselor, who talked to
B.O. Lee admitted that he had said B.O. had a problem with making things up and exaggerating,
but when defense counsel asked if that was one of her more pronounced characteristics, Lee
stated, “No.” Lee testified that B.O. had had a “tough time” when he and Sara separated and
appellant “came into the picture,” but that the child “was just telling stories.” He said the only
thing he remembered her exaggerating was that they once left her alone with a next door
neighbor, “which wasn’t the case.” He added, “But that was it.” Lee testified that B.O. did not
currently have any issues with lying.
The defense argued that B.O. fabricated the allegations against appellant to aid her
mother in her divorce proceedings against appellant. It also questioned B.O.’s credibility and the
credibility of her story, and challenged whether appellant could have sexually abused B.O. for
such a long period of time when so many people were living in the house. Twenty-three-year-
old Rebeca, appellant’s biological daughter, testified, for example, that she lived in the house
with appellant and Sara for about a year and a half and that she slept in the girls’ bedroom and
never saw appellant molesting B.O. According to Rebeca, B.O. had a bad reputation for being
honest and she was frequently caught telling lies.
On cross-examination, Rebeca admitted that when she lived with appellant and Sara, she
went to school during the day and worked at night, and that she would get home at around 10:00
or 11:00 p.m. B.O. and her sister usually went to sleep at about 9:00 p.m. Rebeca also testified
that she would fall asleep on the couch and usually got up and went into the girls’ room at
around midnight, where she slept on the top bunk bed. Rebeca agreed there were opportunities
for appellant to have committed the offenses when she was not present. She saw appellant come
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into the room at night, but explained that it was to turn off the lights or the fan and to cover the
girls with blankets. When asked if she knew whether appellant would move the girls’ legs,
Rebeca replied: “I don’t know. I wasn’t at the bottom of the bed.” She also said, “I mean, I
couldn’t see anything because it’s a bunk bed.” She agreed she had no idea what appellant did or
did not do when he was in the room, and that she “would just see him go in and put the covers on
and leave the room.”
Other defense witnesses similarly testified that B.O. had a poor reputation for honesty.
Appellant’s twenty-five-year-old son, Ricardo, testified that he lived with appellant and Sara
from about 2007 until 2009 and that, during that time, B.O. had a bad reputation for honesty.
Ricardo also noted that B.O. had nearly gotten him into trouble once, but had gotten caught.
B.O.’s stepmother, Donna, who was then married to but divorcing Lee, B.O.’s biological father,
testified that she saw B.O. regularly beginning in 2008 because she would stay one week with
appellant and Sara and one week with her and Lee. In Donna’s opinion, B.O. had a reputation
for not being honest. Donna admitted that she had not spoken to B.O. since July of 2015, and
that she was unfamiliar with B.O.’s reputation for truthfulness at the time she made her outcry.
The trial court ultimately found appellant guilty of continuous sexual abuse of a child
younger than fourteen years of age, as charged in the indictment, and assessed punishment at
twenty-seven years’ imprisonment. This appeal followed.
DISCUSSION
1. Admission of Custodial Statements
In his first issue, appellant contends the trial court erred by admitting his “written
confession” over the objection of defense counsel. While appellant does not dispute that he was
informed of his rights under Miranda and article 38.22, nor does he contend he did not
understand those rights, he argues that he never actually waived them. Appellant acknowledges
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that an express waiver of rights was not required, but he asserts that “this situation is not as
straightforward as, was there an implied waiver in the absence of an express waiver?” Appellant
argues that his conduct in not initialing the three blank spaces next to the waiver language on the
form and not verbally stating that he was waiving his rights amounted to an “express refusal” to
waive his rights.
The record shows that after appellant was arrested and transported to an interview room
in the Collin County Sheriff’s Department, he was provided with a copy of the statutory
warnings on a pre-printed form. At the beginning of the interview, Sergeant Driver commented
that appellant spoke English well, and appellant stated that he could read English better than he
could speak it. Appellant then read aloud, “word for word,” all of the rights and warnings on the
form in English. Appellant told the sergeant he understood what he had just read. Driver read
each of the five rights aloud to appellant, and after each one appellant either verbally stated or
agreed that he understood the right, and he signed his initials next to each right. Driver testified
that he made sure he thought appellant understood each warning before moving on to the next
one.
After reviewing the statutory warnings with appellant, Sergeant Driver summarized them
as follows: “So, understanding all these rights, okay, I’m not gonna promise you anything; I’m
not gonna torture anybody. I just want to talk, ok? Because there’s always two sides to a story.”
Appellant said, “Okay.” The sergeant added, “And so you understand that, right?” Appellant
said, “Yes, sir.” Driver said, “Okay.” He also said, “And I’m not promising you any favors or
nothing,” to which appellant shook his head and said “no” several times. The sergeant asked
appellant to sign his name at the bottom of the form, and appellant signed it.
Appellant did not initial the three blanks on the form associated with the additional
“waiver” language set out after the five statutory rights, and Driver did not ask appellant to do
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so. Nor did he specifically review them with appellant. Driver suggested in his testimony that
appellant did not need to sign the blank lines next to the waiver language because they were all
located under the fifth Miranda right, which appellant had already initialed. The form appears in
part as follows:
While appellant did not verbally state that he was waiving his rights, he began speaking with the
sergeant freely and without hesitation after signing the form, and this continued for the
approximate two-and-one-half hour length of the interview. At no point did appellant ask to
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speak to an attorney or ask to stop the interview.
Sergeant Driver testified that he neither promised appellant anything for his statements
nor coerced or threatened him to give any statements. Appellant had no trouble communicating,
appeared to understand, and asked questions if he did not. After speaking with Driver, appellant
voluntarily wrote the letter to B.O., according to Driver’s testimony.
When the State offered the video recording of the interview, appellant objected under
article 38.22 of the Texas Code of Criminal Procedure, arguing that “there’s clearly a receipt of
the information and understanding of it. But there is no waiver, which is further compounded by
the fact that those blanks to initial the waiver are left blank . . . .” The State replied that neither a
written nor an oral waiver is specifically required for a valid waiver of Miranda rights, and that
the video recording showed appellant understood his rights and wanted to talk. After watching
the video, which showed Driver administering the statutory warnings to appellant, the trial court
overruled appellant’s objections and admitted the video recording and the signed statutory
warnings.
We review a trial court’s decision regarding the admissibility of evidence under an abuse
of discretion standard. See, e.g., Cameron v. State, 241 S.W.3d 15, 19 (Tex. Crim. App. 2007);
Winegarner v. State, 235 S.W.3d 787, 790 (Tex. Crim. App. 2007). The trial court’s ruling will
be upheld if it is within the zone of reasonable disagreement and correct under any theory of law
applicable to the case. Ramos v. State, 245 S.W.3d 410, 418 (Tex. Crim. App. 2008);
Winegarner, 235 S.W.3d at 790.
Article 38.22 governs the admissibility of statements made by a defendant during
custodial interrogation in a criminal proceeding. Herrera v. State, 241 S.W.3d 520, 526 (Tex.
Crim. App. 2007) (citing TEX. CODE CRIM. PROC. ANN. art. 38.22). Article 38.22 requires that a
defendant be provided with warnings virtually identical to those required by Miranda, but also
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that the accused has the right to terminate the interview at any time. Id. It further provides that
an oral statement is admissible against a defendant in a criminal proceeding if, among other
things, the defendant “knowingly, intelligently, and voluntarily” waived the rights set out in the
warnings. Id.The State has the burden of showing a defendant knowingly, intelligently, and voluntarily
waived his rights under Miranda and article 38.22 by a preponderance of the evidence. Leza v.
State, 351 S.W.3d 344, 349, 351 (Tex. Crim. App. 2011). In evaluating whether an individual
waived his rights, courts look at (1) whether the waiver was made voluntarily, which is defined
as being a product of a free and deliberate choice rather than intimidation, coercion, or
deception; and (2) whether the waiver was made with full awareness of both the nature of the
rights being abandoned and the subsequent consequences of that decision. Id. at 349–50, 352.
Such an evaluation involves the totality of the circumstances, which requires the consideration of
all the circumstances surrounding the interrogation, including the defendant’s experience,
background, and conduct. Joseph v. State, 309 S.W.3d 20, 25 (Tex. Crim. App. 2010).
A waiver can be expressly made or implied by the accused’s conduct. Berghuis v.
Thompkins, 560 U.S. 370, 384 (2010); Joseph, 309 S.W.3d at 24. An implied waiver can be
established upon a showing that the accused (1) was given the proper warnings; (2) understood
the warnings and their consequences; and (3) made an uncoerced statement. Berghuis, 560 U.S.
at 382–85; Leza, 351 S.W.3d at 354 n.33; Howard v. State, 482 S.W.3d 249, 256 (Tex. App.––
Houston [1st Dist.] 2015, pet. ref’d); Hernandez v. State, 387 S.W.3d 881, 885 (Tex. App.—San
Antonio 2012, no pet.). In Berghuis, the Supreme Court noted that “[t]he main purpose of
Miranda is to ensure that an accused is advised of and understands the right to remain silent and
the right to counsel.” Berghuis, 560 U.S. at 383; see Hernandez, 387 S.W.3d at 885. Therefore,
“[a]s a general proposition, the law can presume that an individual who, with a full
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understanding of his or her rights, acts in a manner inconsistent with their exercise has made a
deliberate choice to relinquish the protection those rights afford.” Berghuis, 560 U.S. at 385; see
also Watson v. State, 762 S.W.2d 591, 601 (Tex. Crim. App. 1988) (en banc) (“the general rule
is that neither a written nor an oral express waiver is required”). The Berghuis court summarized
its holding by stating, “In sum, a suspect who has received and understood the Miranda
warnings, and has not invoked his Miranda rights, waives the right to remain silent by making an
uncoerced statement to the police.” Berghuis, 560 U.S. at 388–89.
The record in this case shows that appellant willingly shared his version of events with
Sergeant Driver immediately after receiving and acknowledging his understanding of the
Miranda and article 38.22 warnings. At no time during the approximate two-and-one-half hour
interview did appellant ask to stop the interview or ask for counsel. In addition, appellant makes
no allegations of coercion, nor does he argue that he did not understand the warnings. Indeed,
appellant read the warnings aloud and said he understood them, after which Sergeant Driver read
the warnings aloud to appellant, and appellant verbally agreed or otherwise indicated that he
understood those rights. Appellant also signed his initials next to each of the five rights, and he
signed his name at the bottom of the form. The fact that appellant neither signed his initials next
to the waiver language on the form nor explicitly stated he was waiving his rights does not mean
that he invoked his Miranda rights. See, e.g., U.S. v. Plugh, 648 F.3d 118, 125 (2d Cir. 2011)
(“[A] refusal to waive rights, however unequivocal, is not necessarily equivalent to an
unambiguous decision to invoke them.”). As the court of criminal appeals stated in Joseph,
“[a]ppellant’s objection to the absence of a written or articulated waiver runs contrary to ‘the
general rule . . . that neither a written nor an oral express waiver is required.’” Joseph, 309
S.W.3d at 24 (quoting Watson, 762 S.W.2d at 601). A waiver need not assume a particular form
and, in some cases, a waiver can be clearly inferred from the actions and words of the person
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interrogated. See id. This is such a case.
Based on the totality of the circumstances, the trial court could have reasonably
concluded that appellant knowingly, intelligently, and voluntarily waived his rights under
Miranda and article 38.22. As a result, the trial court did not abuse its discretion by admitting
appellant’s custodial statements into evidence. We overrule appellant’s first issue.
2. Sufficiency of the Evidence
In his second issue, appellant argues the evidence is insufficient to support the
conviction. He contends that fact witnesses who had personal knowledge of B.O.’s reputation
for truthfulness testified she lied and was untruthful. Appellant also argues the State offered no
testimony that verified any of B.O.’s allegations, and that there were conflicts between some of
B.O.’s statements and the testimony of other witnesses.
In reviewing the sufficiency of the evidence, we consider all evidence in the light most
favorable to the jury’s verdict and determine whether any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S.
307, 319 (1979); Acosta v. State, 429 S.W.3d 621, 624–25 (Tex. Crim. App. 2014). It remains
the factfinder’s responsibility to fairly resolve conflicts in the testimony, weigh the evidence, and
to draw reasonable inferences from basic to ultimate facts. Jackson, 443 U.S. at 319. We do not
reevaluate the weight and credibility of the evidence and then substitute our judgment for that of
the factfinder. See Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010). Instead, we
determine whether the necessary inferences are reasonable based on the cumulative force of the
evidence when viewed in the light most favorable to the verdict. See Sorrells v. State, 343
S.W.3d 152, 155 (Tex. Crim. App. 2011).
A person commits the offense of continuous sexual abuse of a child if, during a period
that is thirty or more days in duration, he commits two or more acts of sexual abuse and, at the
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time of the commission of each act, he is seventeen years of age or older and the victim is a child
younger than fourteen years of age. TEX. PENAL CODE ANN. § 21.02(b). Although the exact
dates of the abuse need not be proven, the offense does require proof that two or more acts of
sexual abuse occurred during a period of thirty days or more. Baez v. State, 486 S.W.3d 592,
595 (Tex. App.––San Antonio 2016, pet. ref’d); see TEX. PENAL CODE ANN. § 21.02(d) (jury not
required to unanimously agree on which specific acts of sexual abuse were committed by
defendant or exact dates when those acts occurred, but jury must agree unanimously that
defendant, during period of thirty or more days, committed two or more acts of sexual abuse).
The statute defines an “act of sexual abuse” as including:
(2) indecency with a child under Section 21.11(a)(1), if the actor committed the
offense in a manner other than by touching, including touching through clothing,
the breast of a child;
(3) sexual assault under Section 22.011;
(4) aggravated sexual assault under Section 22.021[.]
Id. § 21.02(c)(2)–(4). The testimony of a child victim alone is sufficient to support a conviction
for continuous sexual abuse of a child. See TEX. CODE CRIM. PROC. ANN. art. 38.07; Lee v. State,
186 S.W.3d 649, 656 (Tex. App.––Dallas 2006, pet. ref’d). Further, the penal code does not
require that a child victim be specific about the dates the abuse occurred. See Dixon v. State, 201
S.W.3d 731, 736 (Tex. Crim. App. 2006); Vazquez v. State, Nos. 05–12–00548–CR, 05–12–
00549–CR, 2013 WL 5614300, at *5 (Tex. App.––Dallas Oct. 14, 2013, no pet.) (mem. op., not
designated for publication). This is because it is not often that a child knows, even within a few
days, the date she was sexually assaulted. See Sledge v. State, 953 S.W.2d 253, 256 n.8 (Tex.
Crim. App. 1997).
Appellant’s arguments about the sufficiency of the evidence focus largely on B.O.’s
credibility or various conflicts in the evidence. Appellant suggests, for example, that the trial
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court could not have found B.O. credible because the only evidence of her credibility showed she
was untruthful. Yet, other evidence showed B.O. was a poor liar who would get caught after
admitting she had lied, that any propensity to “tell stories” or exaggerate subsided as B.O. grew
older, and that she no longer had a problem with untruthfulness. In addition, when the State
asked forensic interviewer McConnell if she had seen any signs B.O. had been coached or was
trying to manipulate a family situation, McConnell testified she had seen no “red flags or
anything like that.” McConnell also explained that, in interviewing a child, she looked for, and
found in this case, consistency throughout the interview, the use of sensory details, and an ability
to describe things as they happened. Furthermore, appellant’s statements during his interview
corroborated aspects of B.O.’s testimony and her outcry statements to McConnell. Appellant
admitted, for example, that he went into the girls’ room almost every night to check on them and
he “accidentally” touched the top part of B.O.’s “vagina area” approximately five times over
several years. Appellant said he felt “really dirty” after touching B.O., and he indicated that he
believed touching her was wrong, even if for only a second.
Appellant further argues that some of B.O.’s statements conflicted with the testimony of
other witnesses. Appellant points out that B.O. said she slept in a bedroom alone, while her
stepsister Rebeca testified they slept in the same room. But Rebeca testified that she typically
fell asleep on the couch and would get up and go into the girls’ room at around midnight, after
they had gone to sleep, and that she slept on the top bunk bed. Rebeca acknowledged that
appellant came into the room most nights and she had no idea what he did or did not do when he
was there; she would just see him go in and put the covers on and leave the room. Moreover,
Rebeca––who lived in the house for approximately eighteen months––agreed that there were
opportunities for appellant to have committed the offenses when she was not present.
Appellant comments that B.O. thought her mother worked nights at the time of some of
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the sexual abuse, but evidence showed she mostly worked during the day. Asked about this
apparent discrepancy, McConnell testified that one should not expect a child talking about sexual
abuse that happened over a number of years to always recall exactly where her parents were at
the time. McConnell explained that “[w]hen things are occurring over and over again it’s hard to
separate things and be very precise about who was where and what, because it was something
that was happening over and over again.”
Appellant also comments that B.O. never told the forensic interviewer that appellant
placed his mouth on her sexual organ, although the child testified that this occurred. McConnell
testified that this did not concern her, explaining that the “disclosure process” could trigger other
memories after B.O. left the interview or as she grew more comfortable talking about what had
happened.
Finally, appellant points out that while B.O. testified appellant’s penis felt “[h]ard” when
he placed her hand on it over appellant’s clothes, she told McConnell she could not say what it
felt like. McConnell, however, testified that even if a child did not seem embarrassed––as B.O.
did not appear to be––to discuss body parts in a situation like this, they would not always tell an
interviewer everything about them or describe how they felt.
It was the responsibility of the factfinder to resolve the conflicts in the testimony, weigh
the evidence, and draw reasonable inferences from basic to ultimate facts. See Jackson, 443 U.S.
at 319; see also Cain v. State, 958 S.W.2d 404, 408–09 (Tex. Crim. App. 1997). We do not sit
as the thirteenth juror and substitute our judgment for that of the factfinder by re-evaluating the
weight and credibility of the evidence. Isassi, 330 S.W.3d at 638. Viewing the evidence under
the appropriate standard, the trial court could have found beyond a reasonable doubt that
appellant committed two or more acts of sexual abuse during a period of thirty or more days, as
charged in the indictment. Deferring to the factfinder’s determination of the credibility of the
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witnesses and the weight to be given to their testimony, based on the cumulative force of all the
evidence when viewed in the light most favorable to the verdict, and considering the reasonable
inferences to be drawn from that evidence, we therefore conclude a rational trier of fact could
have found the essential elements of the offense beyond a reasonable doubt. We overrule
appellant’s second issue.
We affirm the trial court’s judgment.
/Lana Myers/
LANA MYERS
JUSTICE
Do Not Publish
TEX. R. APP. 47
160970F.U05
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
CLEOFAS ALEJANDRO RUIZ, Appellant On Appeal from the 296th Judicial District
Court, Collin County, Texas
No. 05-16-00970-CR V. Trial Court Cause No. 296-80461-2016.
Opinion delivered by Justice Myers. Justices
THE STATE OF TEXAS, Appellee Lang and Stoddart participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered this 28th day of July, 2017.
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