Sergio Gonzalez v. State ( 2018 )

ACCEPTED
11-17-00197-CR
ELEVENTH COURT OF APPEALS
EASTLAND, TEXAS
1/5/2018 2:16 PM
SHERRY WILLIAMSON
CLERK
NO ORAL ARGUMENT REQUESTED
CAUSE NO. 11-17-00197-CR FILED IN
11th COURT OF APPEALS
EASTLAND, TEXAS
IN THE 01/05/18 2:16:05 PM
COURT OF APPEALS SHERRY WILLIAMSON
Clerk
ELEVENTH DISTRICT OF TEXAS
AT EASTLAND
______________________________
SERGIO GONZALEZ,
Appellant
V.
THE STATE OF TEXAS,
Appellee
______________________________
ON APPEAL IN CAUSE NO. CR48359
385TH JUDICIAL DISTRICT
MIDLAND COUNTY, TEXAS
HONORABLE ROBIN MALONE DARR,
JUDGE PRESIDING
_____________________________
BRIEF FOR THE STATE
______________________________
Lacey Holloman
State Bar No. 24087736
Assistant District Attorney
500 North Loraine, Suite 200
Midland, Texas 79701
PHONE: (432) 688-4426
FAX: (432) 688-4938
da110@co.midland.tx.us
ATTORNEY FOR THE STATE OF TEXAS
TABLE OF CONTENTS
Contents
TABLE OF CONTENTS ...........................................................................ii
TABLE OF AUTHORITIES ..................................................................... iv
STATE’S REPLIES TO ISSUES PRESENTED FOR REVIEW .............. 2
State’s Reply to Issue One ...................................................................... 2
Whether evidence of appellant’s criminal intent to commit
indecency with a child by contact is sufficient is a question
of fact to be resolved by the trier of fact. Is the evidence
legally and factually sufficient to support the jury’s finding
appellant attempted to commit the offense of indecency
with a child by contact?
STATEMENT OF THE CASE .................................................................. 2
STATEMENT OF FACTS ......................................................................... 4
ARGUMENTS AND AUTHORITIES ....................................................... 6
State’s Reply to Issue One ...................................................................... 6
Summary of Argument .......................................................................... 6
State’s Reply to Issue One ...................................................................... 7
A. Standard of Review ........................................................................ 7
ii
B. Direct and Circumstantial Evidence ............................................. 9
C. Intent to Arouse and Gratify Sexual Desire ............................... 10
D. Application of the Law to the Facts ............................................ 12
CONCLUSION ........................................................................................ 15
PRAYER .................................................................................................. 15
CERTIFICATE OF SERVICE................................................................. 16
CERTIFICATE OF COMPLIANCE ........................................................ 16
iii
TABLE OF AUTHORITIES
Cases
Adelman v. State, 828 S.W.2d 418, 421 (Tex. Crim. App. 1992) .............. 8
Blankenship v. State, 780 S.W.2d 198, 206-207 (Tex. Crim. App. 1988) . 9
Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010 ................... 8
Brown v. State 381 S.W.3d 565, 573 (Tex. App.—Eastland, no pet.) ....... 8
Dixon v. State, 43 S.W.3d 548, 552 (Tex. App.—Texarkana 2001, no
pet.). ..................................................................................................... 12
Geesa v. State, 820 S.W.2d 154, 158-59 (Tex. Crim. App. 1991) ............ 10
Gibbons v. State, 634 S.W.2d 700, 707 (Tex. Crim. App. 1982) ............. 11
Hankins v. State, 646 S.W.2d 191, 199 (Tex. Crim. App. 1981) ............. 10
Hernandez v. State, 819 S.W.2d 806, 810 (Tex. Crim. App. 1991) ......... 11
Hooker v. State, 621 S.W.2d 597, 601 (Tex. Crim. App. 1980) ............... 10
Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). ...................... 9
Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010) ............... 8, 9
Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d
560 (1979) ....................................................................................... 7, 8, 9
Jones v. State, 229 S.W.3d 489, 497-98 (Tex. App. – Texarkana 2007, no
pet.) ...................................................................................................... 11
iv
Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996) ................. 14
Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). .................. 8
McKenzie v. State, 617 S.W.2d 211, 216 (Tex. Crim. App. [Panel Op.]
1981) ..................................................................................................... 11
Paulson v. State, 28 S.W.3d 570 (Tex. Crim. App. 2000) ....................... 10
Peterson v. State, 137 S.W.3d 739, 745 (Tex. App.—Houston [1st Dist.]
2004, pet. ref’d) .................................................................................... 14
Sorrells v. State, 343 S.W.3d 152, 155 (Tex. Crim. App. 2011). ............... 9
Soto v. State, 267 S.W.3d 327, 332 (Tex. App. – Corpus Christi 2008, no
pet.) ...................................................................................................... 11
Tibbs v. Florida, 457 U.S. 31, 40-41, 102 S. Ct. 2211, 72 L. Ed. 2d 652
(1982)...................................................................................................... 8
Whitaker v. State, 977 S.W.2d 595, 598 (Tex. Crim. App. 1998) .............. 8
Wise v. State, 364 S.W.3d 900, 903 (Tex. Crim. App. 2012). .................... 9
Wright v. State, 603 S.W.2d 838, 840-41 (Tex. Crim. App. 1979) ......... 10
Statutes
TEX. CODE CRIM. PROC. ANN. ART. 38.07 .................................................. 10
v
CAUSE NO. 11-17-00197-CR
IN THE
COURT OF APPEALS
ELEVENTH DISTRICT OF TEXAS
AT EASTLAND
______________________________
SERGIO GONZALEZ,
Appellant
V.
THE STATE OF TEXAS,
Appellee
______________________________
CR48359
385TH JUDICIAL DISTRICT
MIDLAND COUNTY, TEXAS
HONORABLE ROBIN MALONE DARR,
JUDGE PRESIDING
______________________________
BRIEF FOR THE STATE
______________________________
TO THE HONORABLE JUSTICES OF THE COURT OF
APPEALS:
COMES NOW the appellee, the State of Texas, and files the
State's brief on appeal in reply to the brief by the appellant, and in
support thereof would show the Court as follows:
1
STATE’S REPLIES TO ISSUES PRESENTED FOR REVIEW
State’s Reply to Issue One
Whether evidence of appellant’s criminal intent to commit
indecency with a child by contact is sufficient is a question
of fact to be resolved by the trier of fact. Is the evidence
legally and factually sufficient to support the jury’s finding
appellant attempted to commit the offense of indecency
with a child by contact?
STATEMENT OF THE CASE
Appellant was indicted in the 385th District Court of Midland
County, Texas, on December 7, 2016, for the offense of indecency with a
child by contact. (CR1 7). He was re-indicted on June 28, 2017, for the
offense of attempted indecency with a child by contact. (CR 8). The
case proceeded to trial on July 17, 2017, and a jury of twelve people was
sworn. (RR27 172). Appellant entered a plea of "not guilty" to the
indictment. (RR7 177). After the presentation of evidence and argument
of counsel, the jury found appellant guilty of the offense of attempted
1 References to the Clerk’s Record are abbreviated as “CR”, followed by the page
number.
2 References to the Reporter’s Record are abbreviated as “RR” followed by the
volume number and page number.
2
indecency with a child by contact as alleged in the indictment. (CR 83;
RR8 109).
Appellant elected for the jury to assess punishment and the case
proceeded to trial on punishment. (CR 70; RR8 110). After presentation
of the evidence and argument of counsel, the jury sentenced appellant
to 7 years imprisonment in the Institutional Division of the Texas
Department of Criminal Justice and assessed a fine of $7,000. (CR75;
RR8 121). The sentence was pronounced on July 18, 2017. (RR8 122).
The judgment of conviction was entered on July 18, 2017. (CR 95-97).
Appellant timely gave notice of appeal. (CR 100).
3
STATEMENT OF FACTS
On November 16, 2016, A.H. was at her dad’s shop with her
brothers. RR7 239. Her parents and appellant were also present. RR7
219. Appellant worked for A.H.’s father at his shop. RR7 216. A.H.
was 13. RR7 235. A.H. was in the office watching a video with her
brother, J.H. RR7 240. J.H. was 12. RR8 14, RR7 244. Appellant
came into the office and asked A.H. if she wanted to go to the store.
RR7 241. Appellant asked just A.H. and not her brothers to go to the
store. Id. A.H. asked J.H. go with her because her parents don’t let her
go to the store with older men. RR7 241-42. Appellant told the children
that their parents said it was okay. RR7 242. A.H.’s parents did not
give appellant to take A.H. to the store. RR7 220, 183. Initially
appellant drove, J.H. sat in the front, and A.H. sat in the backseat of
the vehicle. RR7 243. Once they reached a dark road, appellant
stopped and asked who wanted to drive. Id. J.H. stated he wanted to
drive. Id. After J.H. got in the driver’s seat, appellant got into the back
seat right next to A.H. RR7 244. While in the back seat, appellant
started to touch A.H. RR7 245. He started touching her stomach and
back. Id. Appellant began to lift up her shirt and attempt to take it off.
4
Id. A.H. used her elbow to stop appellant’s hand from touching her
elsewhere. RR7 245-46. Appellant grabbed A.H.’s hips and tried to put
her in his lap. RR7 246. When he did that, A.H. jumped in the front
seat and told her brother she wanted to drive. Id. At the store, A.H.
told J.H. to stay with her because she was afraid. RR7 247. Appellant
drove them back from the store and A.H. sat in the backseat. RR7 249.
Back at the shop, A.H. ran back to the office and attempted to arrange
for her Aunt Janet to come pick her up. Id. A.H. was unable to get her
Aunt Janet to come get her so she ran to her Aunt Aide’s house. RR7
250. At her Aunt Aide’s house she was crying and asked her to take her
to her aunt Janet. RR7 250-51. Once they were at her Aunt Janet’s
house, A.H. told both of her aunts what appellant did. RR7 251. Her
Aunt Janet eventually took her back to the shop. RR7 252. A.H. could
not recall talking to the police that night. Id. The officer who spoke to
her described A.H. as extremely hysterical, crying, saying she was
scared of appellant. RR8 31. Appellant told the officer nothing
happened. RR8 33-34. That they just went to the store. Id.
5
ARGUMENTS AND AUTHORITIES
State’s Reply to Issue One
Whether evidence of appellant’s criminal intent to commit
indecency with a child by contact is sufficient is a question
of fact to be resolved by the trier of fact. Is the evidence
legally and factually sufficient to support the jury’s finding
appellant attempted to commit the offense of indecency
with a child by contact?
Summary of Argument
The evidence must be viewed in the light most favorable to the
verdict. The fact finder is the sole judge of the credibility of the
witnesses and the weight to be given their testimony and may choose to
believe or disbelieve all or any part of any witness's testimony. The
State’s witnesses testified appellant invited the 13 year old victim to the
store under false pretenses. Appellant isolated the victim from the
other adults. He then had the 12 year old drive and rode in the back
seat with the 13 year old girl. A.H. testified that in the backseat,
appellant attempted to lift her shirt, touch her bare skin, and pull her
onto his lap. All of this took place while the vehicle was moving and
appellant would have no legitimate reason to touch A.H., much less try
and pull her onto his lap. Based off appellant’s conduct and all the
6
surrounding circumstances, the jury rationally concluded that appellant
attempted to touch A.H. with the intent to arouse or gratify his sexual
desire. Appellant’s argument seeks for this court to substitute its
judgment for that of the jury without any basis in fact or law.
State’s Reply to Issue One
Whether evidence of appellant’s criminal intent to commit
theft is sufficient is a question of fact to be resolved by the
trier of fact. The State’s witnesses said appellant entered
the building after hours without permission, he fled
immediately after setting off the alarm, and gave an
unreasonable explanation as to why he was there. Is the
evidence legally and factually sufficient to support the
jury’s finding that appellant committed burglary of a
building?
A. Standard of Review
The standard of review for an appellate court to evaluate
sufficiency of the evidence, whether denominated as a legal or as a
factual sufficiency claim, is to examine all the evidence in a light most
favorable to the verdict and to determine whether, based on the
evidence and any reasonable inferences from it, any rational finder of
fact could have found the existence of the elements of the offense
beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.
Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979); Isassi v. State, 330 S.W.3d 633,
7
638 (Tex. Crim. App. 2010); Brooks v. State, 323 S.W.3d 893, 912 (Tex.
Crim. App. 2010). Evidence is insufficient under this standard in four
circumstances: (1) the record contains no evidence probative of an
element of the offense; (2) the record contains a mere “modicum” of
evidence probative of an element of the offense; (3) the evidence
conclusively establishes a reasonable doubt; and (4) the acts alleged do
not constitute the criminal offense charged. Brown v. State 381 S.W.3d
565, 573 (Tex. App.—Eastland, no pet.) (Citing Jackson, 443 U.S. at
314, 318 n. 11, 320). If evidence is insufficient under this standard, the
appellate court must reverse the judgment and enter an acquittal. See
Tibbs v. Florida, 457 U.S. 31, 40-41, 102 S. Ct. 2211, 72 L. Ed. 2d 652
(1982). The sufficiency test must be applied to the application
paragraph in a hypothetically correct jury charge. Malik v. State, 953
S.W.2d 234, 240 (Tex. Crim. App. 1997). Appellant did not object to the
Court’s Charge and does not object to the Court’s Charge now. (RR5 5).
The factfinder is the exclusive judge of each witness' credibility
and the weight to be given each witness' testimony. Whitaker v. State,
977 S.W.2d 595, 598 (Tex. Crim. App. 1998); Adelman v. State, 828
S.W.2d 418, 421 (Tex. Crim. App. 1992). The appellate court's duty is
8
not to sit as a thirteenth juror reweighing the evidence or deciding
whether it believes the evidence established the elements in question
beyond a reasonable doubt. Blankenship v. State, 780 S.W.2d 198, 206-
207 (Tex. Crim. App. 1988); see also, Isassi, 330 S.W.3d at 638. In
reviewing the evidence the appellate court is to defer to the trier of facts
to responsibly resolve conflicts in testimony, weigh evidence, and draw
reasonable inferences from basic facts to ultimate facts. Jackson, 443
U.S. at 319, 99 S. Ct. at 2789; Hooper v. State, 214 S.W.3d 9, 13 (Tex.
Crim. App. 2007). The appellate court determines whether the
necessary inferences are reasonable based upon the cumulative force of
the evidence when viewed in the light most favorable to the verdict.
Sorrells v. State, 343 S.W.3d 152, 155 (Tex. Crim. App. 2011). The court
must presume the factfinder resolved any conflicting inferences in favor
of the verdict and defer to that resolution. Jackson, 443 U.S. at 326;
Wise v. State, 364 S.W.3d 900, 903 (Tex. Crim. App. 2012).
B. Direct and Circumstantial Evidence
In this case, the conclusion that appellant was attempting to touch
A.H. with the intent to arouse and gratify his sexual desire is based on
circumstantial evidence. In a circumstantial evidence case, each fact or
9
piece of evidence need not point directly to the defendant’s guilt; rather,
the cumulative effect of all the incriminating facts may be sufficient to
support the conviction. Hooker v. State, 621 S.W.2d 597, 601 (Tex. Crim.
App. 1980) (op. on reh’g). Circumstantial evidence is no less trustworthy
or probative than direct evidence. See Geesa v. State, 820 S.W.2d 154,
158-59 (Tex. Crim. App. 1991), overruled in part, Paulson v. State, 28
S.W.3d 570 (Tex. Crim. App. 2000) (same standard of review applies to
direct as well as circumstantial evidence cases). "Circumstantial
evidence alone may suffice . . . if the inferences arising therefrom prove
the fact in question beyond a reasonable doubt." Hankins v. State, 646
S.W.2d 191, 199 (Tex. Crim. App. 1981). An accused's presence at the
scene is a circumstance that tends to prove guilt and, when combined
with other facts, may indeed show the accused to be guilty of the crime.
Wright v. State, 603 S.W.2d 838, 840-41 (Tex. Crim. App. 1979) (op. on
reh’g).
C. Intent to Arouse and Gratify Sexual Desire
The testimony of a child victim alone is sufficient to support a
conviction for indecency with a child. TEX. CODE CRIM. PROC. ANN. ART.
38.07. A child victim’s description of what happened need not be
10
precise. Soto v. State, 267 S.W.3d 327, 332 (Tex. App. – Corpus Christi
2008, no pet.). Intent generally is an element that must be inferred
from the circumstances. Hernandez v. State, 819 S.W.2d 806, 810 (Tex.
Crim. App. 1991). Intent to arouse and gratify sexual desire can also be
inferred from the defendant’s conduct, his remarks and all surrounding
circumstances. McKenzie v. State, 617 S.W.2d 211, 216 (Tex. Crim.
App. [Panel Op.] 1981).
In McKenzie, the defendant asked the girls to meet him behind
buildings and in places under construction where they would not be
seen. Id. at 215-16. The defendant also isolated one girl when he first
made physical contact with her. Id. at 216. The Court found that there
was sufficient evidence in this case to support the jury’s finding that the
defendant had the specific intent to arouse and gratify his sexual desire.
Id.
The imaginary line between mere preparation and an attempt
depends on the nature of the crime and must be considered on a case by
case basis. Gibbons v. State, 634 S.W.2d 700, 707 (Tex. Crim. App.
1982); see Jones v. State, 229 S.W.3d 489, 497-98 (Tex. App. –
Texarkana 2007, no pet.) (rubbing up against the child’s leg and thigh,
11
whispering he loved her, and claiming he thought she was her mother
was more than mere preparation).
D. Application of the Law to the Facts
J.H. and A.H. testified that when appellant asked them to go to
the store he told them that their parents had given their permission.
RR8 18, RR7 242. A.H. testified that appellant wanted just her to go to
the store. RR7 241. She testified that on the way to the store, once
they reached a dark road, appellant stopped and asked who wanted to
drive. RR7 243. Once her little brother got in the driver’s seat,
appellant sat in the back with her. RR7 244. He sat right next to her in
the back seat. Id. A.H. testified that appellant began touching her
stomach and back. RR7 245. He attempted to lift up her shirt and take
it off. Id. A.H. testified that appellant grabbed her by the hips and
tried to pull her into his lap. RR7 246. Appellant made her so
uncomfortable that at the store A.H. asked her little brother to stay
with her because she was scared. RR8 21, RR7 247.
J.H. testified that he thought appellant only asked his sister to go
to the store. RR8 25. J.H. also testified that when they got back to the
shop appellant told them “we’re not going to tell nobody, ok.” RR8 22.
12
Appellant admitted that he rode with the children to the store.
RR8 71. Appellant admitted that he told the children it was ok for
them to go with him even though he had never asked their parents.
RR8 87. He testified that he rode in the back with A.H while J.H.
drove. RR8 71, 74. Appellant testified that he let them drive because
he “wanted to be cool.” RR8 80.
It is a reasonable inference for the jury to find that appellant was
attempting to lift up A.H’s shirt in an attempt to touch her breasts in
order to arouse and gratify his sexual desire. There is no other
reasonable explanation for why appellant would lie to the children in
order to get them to go to the store with him. There is no other
reasonable explanation as to why appellant would allow a 12 year old
child to drive down a dark and deserted road while sitting in the back
with a 13 year old. There is no other reasonable explanation for why
appellant would try to lift up a 13 year old’s shirt, and attempt to pull
her on to his lap while the vehicle was moving. Appellant wanted to
look cool to A.H. in an attempt to groom her. Appellant knew he did
something was not supposed to and that is why he told J.H. not to tell
anyone when they got back to the shop. These facts combined create
13
the inference that appellant was attempting to touch A.H. with the
intent to arouse and gratify his sexual desire. The jury as the exclusive
judge of the facts, the credibility of the witnesses, and the weight to be
given to their testimony, was free to believe or disbelieve all or any part
of the witnesses’ testimony. See Jones v. State, 944 S.W.2d 642, 647
(Tex. Crim. App. 1996). Clearly, the jury disbelieved appellant’s version
of events as shown by their guilty verdict. An appellate court cannot
hold the evidence factually insufficient merely because a defendant
offers an explanation of the facts that is different from the explanation
offered by the State. Peterson v. State, 137 S.W.3d 739, 745 (Tex. App.—
Houston [1st Dist.] 2004, pet. ref’d). Appellant simply asks this court to
substitute its judgment for that of the jury without any facts or
explanation as to why the jury’s verdict is unreasonable. Appellant’s
point of error should be denied.
14
CONCLUSION
The evidence is legally and factually sufficient to support the
conviction of appellant for attempted indecency with a child by contact.
The jury as the finder of facts has sufficient evidence to determine
appellant attempted to touch A.H. in a way as an attempt to arouse or
gratify his sexual desire. Appellant’s appeal should be denied and the
conviction should be affirmed by this court.
PRAYER
WHEREFORE, PREMISES CONSIDERED, the Appellee prays
that this Honorable Court affirm the judgment of conviction in this
cause.
Respectfully submitted,
Laura Nodolf
District Attorney
Midland County, Texas
By:
/S/ Lacey Holloman
Lacey Holloman
Assistant District Attorney
State Bar No. 24087736
500 North Loraine, Suite 200
Midland, Texas 79701
da110@co.midland.tx.us
15
(432) 688-4426; FAX (432) 688-4938
CERTIFICATE OF SERVICE
I, Lacey Holloman, do hereby certify that on the 5th day of
January, 2018, I sent a true and correct copy of the foregoing brief by
electronic service to Damian Castillo, attorney of record for Appellant,
at 1120 N. Big Spring, Midland TX, 79701.
/S/ Lacey Holloman
Lacey Holloman
Assistant District Attorney
CERTIFICATE OF COMPLIANCE
I, Lacey Holloman, certify the Brief for Appellee was prepared
with Microsoft Word 2010 and that according to that program’s word-
count function, the sections covered by TEX. R. APP. P. 9.4(i)(3) contain
2,509 words. I further certify the body text is Century Schoolbook 14
point font and the footnote text is 12 point font.
By:
/S/ Lacey Holloman
Lacey Hollman
Assistant District Attorney
16