Marcos Evangelisto Escobar v. State ( 2018 )

AFFIRM; Opinion Filed November 29, 2018.
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-17-00960-CR
MARCOS EVANGELISTO ESCOBAR, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 363rd Judicial District Court
Dallas County, Texas
Trial Court Cause No. F17-00354-W
MEMORANDUM OPINION
Before Justices Lang, Fillmore, and Schenck
Opinion by Justice Schenck
Marcos Evangelisto Escobar appeals his conviction for indecency with a child. In a single
issue, appellant challenges the sufficiency of the evidence to support his conviction. We affirm
the trial court’s judgment. Because all issues are settled in law, we issue this memorandum
opinion. TEX. R. APP. P. 47.4.
BACKGROUND
Appellant was in a relationship with R.G.’s mother and had lived with her and her family
since 2009. In January 2011, when she was six-years old, R.G. woke up to see appellant touching
her genitals with his hands. It was dark where R.G. was sleeping, and she could see appellant was
using his phone’s flashlight feature. After a while, appellant stopped touching her and went into
the bathroom. A week later, R.G. told her mother what had happened, and R.G.’s mother told
R.G.’s grandmother. Soon after, R.G.’s grandmother confronted appellant who apologized and
said he would never do it again. In December 2013, appellant ended his relationship with R.G.’s
mother.
Years later, R.G.’s aunt, X.S., purchased a hard drive from her brother Betuel, who is also
R.G.’s uncle. X.S. discovered the hard drive contained a video of Betuel sexually abusing R.G.
X.S. called the police to report what she had seen. During the subsequent investigation into
Betuel’s conduct, R.G. was forensically interviewed. Towards the end of the interview, R.G.
described the foregoing incident with appellant.
Appellant was indicted for the first degree felony offense of aggravated sexual assault of a
child. He pleaded not guilty, and the case proceeded to trial before a jury who found him guilty
of the lesser-included second degree felony offense of indecency of a child and assessed
punishment at three years’ confinement.
DISCUSSION
When reviewing whether there is legally sufficient evidence to support a criminal
conviction, we view the evidence in the light most favorable to the prosecution, asking whether
any rational trier of fact could have found the essential elements of the crime beyond a reasonable
doubt. See Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App. 2015), cert. denied, 136 S. Ct.
198 (2015) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). This standard tasks the
factfinder with resolving conflicts in the testimony, weighing the evidence, and drawing any
reasonable inferences the evidence might support. See id. On appeal, we determine whether the
necessary inferences are reasonable based upon the combined and cumulative force of all the
evidence when viewed in the light most favorable to the verdict. See id. Thus, we are not permitted
to use a “divide and conquer” strategy for evaluating sufficiency of the evidence because that
approach does not consider the cumulative force of all the evidence. See id. When the record
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supports conflicting inferences, we presume that the factfinder resolved the conflicts in favor of
the verdict, and we defer to that determination. See id. at 448–49.
A person commits the offense of indecency with a child if he engages in sexual contact
with a child younger than 17 years of age. See TEX. PENAL CODE ANN. § 21.11(a)(1). “Sexual
contact” means any touching by a person, including touching through clothing, of the genitals of
a child, if such act is committed with the intent to arouse or gratify the sexual desire of any person.
See id. § 21.11(c)(1).
Appellant urges that on this record a rational trier of fact could not have found that the
State proved the essential elements of indecency with a child beyond a reasonable doubt.
Appellant maintains there was a lack of evidence corroborating R.G.’s testimony, such as the
testimony from X.S., R.G.’s aunt, that R.G. never spoke to her about what appellant did to her, she
never personally observed appellant do anything to R.G., and she was aware there was an
allegation of abuse of R.G.’s sister, but that R.G.’s mother never reported it to the police.
Appellant also points to evidence that would undermine the credibility of R.G.’s testimony, like
the fact that R.G. testified that appellant was her step-father, but she could not identify him in court
and his own testimony that, around the time of the incident, R.G. had become upset with him for
refusing to give her money for an electronic device and spanking her leg to discipline her for
screaming at him. He also notes discrepancies between R.G.’s testimony at trial and that of the
forensic interviewer regarding which bed R.G. was sleeping in when appellant touched her, which
members of the family were sleeping in that room, and whether appellant was sleeping in the same
bed as her. R.G. testified that appellant apologized, but the forensic interviewer said R.G. did not
tell her that, only that appellant told R.G. he loved her. Appellant indicates R.G. may have been
mistaken in her identity of him as her abuser, maintaining there was no evidence R.G. used
appellant’s name in the forensic interview and that the translation of the forensic interview from
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Spanish to English may have confused everyone into believing it was appellant who abused R.G.
and not her biological father or her uncle Betuel. Appellant points out that R.G. said she
“glimpsed” who was touching her and urges that R.G. likely would have had difficulty identifying
a person holding a flashlight towards her and away from himself in a dark room. Appellant further
appears to challenge the evidence of his sexual intent by noting the testimony of the forensic
interview that when R.G. described the incident, R.G. used the words “exploring” or “checking”
to describe how appellant touched her genitals.
We conclude the evidence is sufficient to support appellant’s conviction. Both R.G. and
the forensic interviewer testified regarding appellant’s abuse of R.G. Appellant testified that
around the time of the incident, R.G.’s mother and grandmother confronted him about sexually
abusing R.G., thus providing some evidence that the incident took place other than R.G.’s
testimony and that of the forensic interviewer. As for appellant’s identity, in addition to R.G.’s
own testimony identifying appellant as her abuser during this incident, during her forensic
interview, R.G. was able to clearly distinguish the abuse involving appellant from the abuse she
received from her uncle. As for evidence of appellant’s specific intent, the specific intent required
for the offense of indecency with a child may be inferred from a defendant’s conduct, his remarks,
and all of the surrounding circumstances. Bazanes v. State, 310 S.W.3d 32, 40 (Tex. App.—Fort
Worth 2010, pet. ref’d). The record shows R.G. woke during the night to find appellant touching
her improperly and pointing his phone’s flashlight at her to do so. He said nothing to her, and then
left the room to go to the bathroom. R.G. testified she was uncomfortable and felt she had to move
away from the bed.
A rational trier of fact could have believed the testimony of R.G. and the forensic
interviewer and disbelieved appellant’s testimony to conclude he touched six-year-old R.G.’s
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genitals with the intent to arouse or gratify his sexual desire. See PENAL § 21.11(a)(1), (c)(1)
(indecency with a child); Murray, 457 S.W.3d at 448; id.
We overrule appellant’s sole issue.
CONCLUSION
We affirm the trial court’s judgment.
/David J. Schenck/
DAVID J. SCHENCK
JUSTICE
DO NOT PUBLISH
TEX. R. APP. P. 47
170960F.U05
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
MARCOS EVANGELISTO ESCOBAR, On Appeal from the 363rd Judicial District
Appellant Court, Dallas County, Texas
Trial Court Cause No. F17-00354-W.
No. 05-17-00960-CR V. Opinion delivered by Justice Schenck,
Justices Lang and Fillmore participating.
THE STATE OF TEXAS, Appellee
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered this 29th day of November, 2018.
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