Fernando Fernandez v. State ( 2010 )

Affirmed and Memorandum Opinion filed April 15, 2010.

In The

Fourteenth Court of Appeals

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NO. 14-09-00369-CR

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Fernando Fernandez, Appellant

V.

The State of Texas, Appellee

On Appeal from the 300th Judicial District Court

Brazoria County, Texas

Trial Court Cause No. 55,573

MEMORANDUM OPINION

            Appellant Fernando Fernandez challenges his conviction on two counts of indecency with a child.  After a jury trial, the jury found appellant guilty and assessed punishment at confinement for 99 years.  Appellant appeals contending that (1) the evidence is legally and factually insufficient to support the jury’s verdict; and (2) the trial court erred by not allowing him to admit certain evidence of “his good character and propensity for moral and safe relations with small children.”  We affirm.

Background

            Before 2007, the complainant lived with her mother, sister, brother, three uncles and their families, and appellant, her grandfather, in a house in Pearland, Texas. Appellant had his own room that was accessible only from a staircase located outside of the house.  Everyone else lived in the main house.   

In March 2007, the complainant, who was then 16 years old, was admitted to a hospital for treatment of pneumonia.  During an examination, a member of the hospital staff observed red marks on the complainant’s wrist.  When asked where the red marks came from, the complainant stated that they came from appellant.  The complainant then told the hospital staff that appellant had touched her breasts, “bottom,” and vagina. 

Appellant was indicted on two counts of indecency with a child on November 29, 2007.  During trial, the complainant testified that one of her chores was cleaning appellant’s room.  She testified that while she was cleaning appellant’s room, appellant touched her chest, “bottom,” and vagina with his hands.  She testified that she was 15 years old when appellant began touching her.  When asked if this happened “on one or more occasions,” the complainant testified that it happened “a lot.”  The complainant testified that appellant touched her chest, “bottom,” and vagina with his hands over the course of a year. 

Faye Fernandez, the complainant’s mother, testified that she “took care of everything” around the house, including cleaning appellant’s room.  She testified that the complainant and her other children would help her with these duties, but they were not supposed to go to appellant’s room.  She testified that appellant would call for her children to clean his room.  She also testified that appellant offered to leave the family house if “[the complainant would] say that she was lying.” Cindy Dominguez testified that the complainant told her “that her mom had told her if everything would be dropped, [appellant] would leave [the family home].”

Appellant took the stand and denied touching the complainant inappropriately.  Appellant also testified that the complainant had threatened him stating, “I can have you arrested if I want to.”  Appellant testified that the complainant told him that “a friend of hers had her father arrested, and all she had to do was say that her father had touched her.  She said, ‘I can do that same thing to you, Grandpa; and they are going to believe me because I’m a little kid.’” 

            Appellant also called Fernando Fernandez, Jr., Elizabeth Fernandez, Margarita Fernandez, and Eliza Zavala, who are family members of appellant and the complainant.  All four testified that the complainant was rude and disrespectful to appellant, and that the complainant and her mother had bad reputations for truth and veracity.  Elizabeth Fernandez also testified that she heard the complainant state the following to appellant: “You know, what, if I want to, I can make you in trouble.  I’ve got your life in my hands. . . .  You know, I can make something . . . make it something out and they are gonna believe me first than you.”  Appellant also called Beverly Rockstad, his former girlfriend, who testified that Faye Fernandez’s reputation for truth and veracity was bad. 

            The jury found appellant guilty of both counts of indecency with a child and assessed punishment at confinement for 99 years for each count.[1]  The trial court signed its judgment on April 17, 2009, and ordered the sentences to run concurrently.  Appellant appeals from the trial court’s judgment.        

Analysis

            Appellant presents six issues on appeal.  In his first and second issues, appellant argues that the evidence is legally and factually insufficient to support the jury’s verdict.  In issues three through six, appellant argues the trial court erred by not allowing appellant to admit certain evidence regarding his “good character and propensity for moral and safe relations with small children.”  We address each in turn. 

I.         Legal and Factual Sufficiency

In reviewing legal sufficiency of the evidence, an appellate court examines all of the evidence in the light most favorable to the verdict to determine whether any rational factfinder could have found proof of the essential elements of the offense beyond a reasonable doubt.  Jackson v. Virginia, 443 U.S. 307, 319 (1979); Rollerson v. State, 227 S.W.3d 718, 724 (Tex. Crim. App. 2007).  The court does not sit as a thirteenth juror and may not re-evaluate the weight and credibility of the record evidence or substitute its judgment for that of the factfinder.  Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999).

Reconciliation of conflicts in the evidence is within the exclusive province of the factfinder.  See Mosley v. State, 983 S.W.2d 249, 254 (Tex. Crim. App. 1998).  The appellate court’s duty is not to reweigh the evidence, but to serve as a final due process safeguard ensuring only the rationality of the factfinder.  See Williams v. State, 937 S.W.2d 479, 483 (Tex. Crim. App. 1996).  An appellate court faced with a record that supports conflicting inferences must presume — even if not obvious from the record — that the factfinder resolved any such conflicts in favor of the verdict and must defer to that resolution.  Jackson, 443 U.S. at 326; Evans v. State, 202 S.W.3d 158, 161 (Tex. Crim. App. 2006).

In reviewing factual sufficiency of the evidence, an appellate court must determine whether (1) the evidence introduced to support the verdict is “so weak” that the factfinder’s verdict seems “clearly wrong and manifestly unjust,” or (2) the factfinder’s verdict is nevertheless against the great weight and preponderance of the evidence.  Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2008).  In a factual sufficiency review, the court views all of the evidence in a neutral light.  Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000) (en banc).  If the court finds the evidence factually insufficient, the court must remand the case for a new trial.  Clewis v. State, 922 S.W.2d 126, 135 (Tex. Crim. App. 1996).

In order to declare that an evidentiary conflict justifies a new trial, an appellate court must rely on some objective basis in the record demonstrating that the great weight and preponderance of the evidence contradicts the jury’s verdict.  See Lancon v. State, 253 S.W.3d 699, 706-07 (Tex. Crim. App. 2008).  An appellate court should not intrude upon the factfinder’s role as the sole judge of the weight and credibility of witness testimony.  Vasquez v. State, 67 S.W.3d 229, 236 (Tex. Crim. App. 2002).  The factfinder may choose to believe or disbelieve any portion of the testimony presented at trial.  Bargas v. State, 252 S.W.3d 876, 887 (Tex. App.—Houston [14th Dist.] 2008, no pet.) (citing Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986) (en banc)).  Due deference must be given to the factfinder’s determinations concerning the weight and credibility of the evidence and reversal of those determinations is appropriate only to prevent the occurrence of a manifest injustice.  Martinez v. State, 129 S.W.3d 101, 106 (Tex. Crim. App. 2004).

An individual commits the offense of indecency with a child if the individual engages in sexual contact with a child.  Tex. Pen. Code Ann. § 21.11(a)(1) (Vernon Supp. 2009).  “Sexual contact” is defined to include “(1) any touching by a person, including touching through clothing, of the anus, breast, or any part of the genitals of a child; or (2) any touching of any part of the body of a child, including touching through clothing, with the anus, breast, or any part of the genitals of a person.”  Id. at § 21.11(c)(1).  “[T]he requisite specific intent to arouse or gratify the sexual desire of any person can 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. 1981).  An expression of intent by words is not required.  Navarro v. State, 241 S.W.3d 77, 79 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d). 

A conviction for the offense of indecency with a child is “supportable on the uncorroborated testimony of the victim of the sexual offense if the victim informed any person, other than the defendant, of the alleged offense within one year after the date on which the offense is alleged to have occurred.”  Tex. Code Crim. Proc. Ann. art. 38.07(a) (Vernon 2005).   But the requirement that the victim inform another person of an alleged offense does not apply “if at the time of the alleged offense the victim was a person . . . 17 years of age or younger.” Id. art. 38.07(b). 

Appellant contends that the evidence is legally insufficient to support his conviction because there was “no detail to [the complainant’s] testimony.  There was no clear incident described by [the complainant].” 

The complainant testified that one of her chores was cleaning appellant’s room.  She testified that while she was cleaning appellant’s room, appellant touched her chest, “bottom,” and vagina with his hands.  She testified that she was 15 years old when appellant began touching her.  When asked if this happened “on one or more occasions,” the complainant testified that it happened “a lot.”  She later testified that appellant touched her chest, “bottom,” and vagina with his hands over the course of a year. 

Faye Fernandez, the complainant’s mother, testified that she “took care of everything” around the house, including cleaning appellant’s room.  She testified that the complainant and her other children would help her with these duties, but they were not supposed to go to appellant’s room.  She testified that appellant would call for her children to clean his room.  She also testified that appellant offered to leave the family house if “[the complainant would] say that she was lying.” Cindy Dominguez testified that the complainant told her “that her mom had told her if everything would be dropped, [appellant] would leave.”

Viewing the evidence in the light most favorable to the verdict, the jury could have found beyond a reasonable doubt that appellant engaged in sexual contact with the complainant, a child.  See Tex. Code Crim. Proc. Ann. art. 38.07(a), (b); Jackson, 443 U.S. at 326; Evans, 202 S.W.3d at 161. 

Appellant contends that the evidence is factually insufficient to support his conviction because “neither [the complainant] nor her mother were entitled to belief.”  Appellant does not argue that the complainant’s testimony did not sufficiently cover all of the elements alleged in the indictment; he only attacks the complaint’s and her mother’s credibility.  Appellant relies heavily on Goodman v. State, 66 S.W.3d 283 (Tex. Crim. App. 2001) (en banc), to support his position. 

In Goodman, the court described two types of factual insufficiency situations.  Id. at 285-86.  The court stated that the second type of situation “involve[d] a balancing scale,” with some evidence supporting a positive inference and some evidence supporting a negative inference.  Id. at 285.  The court then used a hypothetical to illustrate this type of situation:

[S]uppose a modern-day Cretan Liar testifies: “I saw the defendant put the baggie of cocaine down on the sidewalk.”  Although the Cretan Liar has five prior perjury convictions, his testimony is nonetheless legally sufficient to prove that the defendant possessed the baggie.  Direct evidence of “X” fact is always legally sufficient to support a finding of “X” fact.  The Cretan Liar’s testimony, standing alone, is also factually sufficient to support the element of possession.  If the jury believes him (and it is entitled to do so under either a legal or factual sufficiency review), then the Cretan Liar’s testimony conclusively proves the point.  Now, suppose that the defendant calls a dozen boy scouts, who uniformly testify that they definitely saw the baggie lying on the sidewalk before the defendant came along and sat down. Now we have the Cretan Liar’s testimony (which the jury was entitled to believe and actually did believe) set against the testimony of twelve boy scouts (whose testimony the jury was entitled to reject and whose testimony, for whatever reason, it did reject).  Clearly, the jury’s finding that the defendant possessed the baggie of cocaine is against the great weight and preponderance of the evidence.  The Cretan Liar, with multiple perjury convictions, versus twelve boy scouts?  Given this state of the evidence, the jury’s verdict is “clearly wrong” and “manifestly unjust.”  A reviewing court can only attribute the verdict to bias, irrationality, or some other peculiarity.   

Id. at 285-86 (emphasis in original).

            Appellant called numerous family members who testified that the complainant was rude and disrespectful to appellant, and that the complainant and her mother had bad reputations for truth and veracity. Elizabeth Hernandez also testified that she heard the complainant state the following to appellant: “You know, what, if I want to, I can make you in trouble.  I’ve got your life in my hands. . . .  You know, I can make something . . . make it something out and they are gonna believe me first than you.”  Appellant also took the stand and denied touching the complainant inappropriately. Appellant testified that the complainant had threatened him stating, “I can have you arrested if I want to” and that “a friend of hers had her father arrested, and all she had to do was say that her father had touched her.  She said, ‘I can do that same thing to you, Grandpa; and they are going to believe me because I’m a little kid.’”  Relying on the court’s “Cretan Liar” hypothetical in Goodman, appellant asserts that the jury’s verdict is “against the great weight and preponderance of the evidence” and is “manifestly unjust.”

            The appellant’s reliance on Goodman is misplaced.  Appellant is the only witness who testified that he did not touch the complainant’s breasts, “bottom,” or vagina, in direct contradiction of the complainant’s testimony.  The other witnesses merely testified as to the credibility of the complainant.  The other witnesses appellant called to testify did not testify that appellant did not touch the complainant. 

            Courts have routinely held the jury is the sole judge of the facts, the credibility of the witnesses, and the weight to be given the evidence.  Wyatt v. State, 23 S.W.3d 18, 30 (Tex. Crim. App. 2000); Beckham v. State, 29 S.W.3d 148, 151 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d).  The jury may believe or disbelieve all or part of any witness’s testimony.  Jones v. State, 984 S.W.2d 254, 258 (Tex. Crim. App. 1998) (en banc).  The jury is in the best position to evaluate the credibility of witnesses and the evidence, and we must afford due deference to its determination.  Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006).

            Viewing the evidence in a neutral light, the jury could have found beyond a reasonable doubt that appellant engaged in sexual contact with the complainant, a child.  See Johnson, 23 S.W.3d at 11.  The evidence supporting the verdict is not so weak that the verdict is clearly wrong and manifestly unjust.  See Watson, 204 S.W.3d at 414-15; see also Newby v. State, 252 S.W.3d 431, 435-37 (Tex. App.—Houston [14th Dist.] 2008, pet. ref’d) (finding the evidence factually sufficient despite appellant’s argument that the State’s case relied entirely on the testimony of the complaining witness and the complaining witness was not credible); Guajardo v. State, 176 S.W.3d 402, 404-05 (Tex. App.—Houston [1st Dist.] 2004, pet. ref’d) (same).  

            We overrule appellant’s first and second issues.    

II.        Admissibility of Evidence

Appellant next argues that the trial court committed reversible error by not allowing Zavala, Rockstad, and Margarita Fernandez to testify that appellant had “good character and propensity for moral and safe relations with small children or young girls.”  Specifically, appellant asserts that the trial court erred in sustaining the State’s objections to the following three questions: (1) appellant’s counsel asked Zavala: “Has [appellant] ever touched you inappropriately?”;[2] (2) appellant’s counsel asked Rockstad: “Would you have had any reason to be afraid to leave your daughter with [appellant]?”; and (3) appellant’s counsel asked Margarita Fernandez: “Would you have any hesitation in letting your daughter go with [appellant]?”          

We review the trial court’s decision to admit evidence under an abuse-of-discretion standard.  Casey v. State, 215 S.W.3d 870, 879 (Tex. Crim. App. 2007).  If the trial court’s decision is within the zone of reasonable disagreement, the trial court’s ruling will be upheld.  Id.  

Generally, character evidence is not admissible to show that a person acted in conformity with a character trait on a particular occasion.  Tex. R. Evid. 404(a).  However, an accused in a criminal case is permitted to introduce evidence of a specific good-character trait to show that it is improbable that he committed the charged offense, when that character trait is pertinent to the offense.  Tex. R. Evid. 404(a)(1)(A); Valdez v. State, 2 S.W.3d 518, 519 (Tex. App.—Houston [14th Dist.] 1999, pet. ref’d). A pertinent trait is “one that relates to a trait involved in the offense charged or a defense raised.” Spector v. State, 746 S.W.2d 946, 950 (Tex. App.—Austin 1988, pet. ref’d).  Proof of such good character may be made through reputation or opinion testimony.  Tex. R. Evid. 405(a); Valdez, 2 S.W.3d at 519.  Specific instances of conduct are only admissible if the character trait is an essential element of the crime charged.  Tex. R. Evid. 405(b); Biagas v. State, 177 S.W.3d 161, 175 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d).

A defendant charged with a sexual offense against a child is entitled to proffer evidence of his good character or propensity for moral and safe relations with small children.  Wheeler v. State, 67 S.W.3d 879, 882 (Tex. Crim. App. 2002).  However, a defendant must do so in accordance with the procedures and foundations set out in Texas Rule of Evidence 405.  Id.    

Appellant argues that the challenged questions prompted admissible character evidence in the form of opinion testimony relating to appellant’s good character or propensity for moral and safe relations with small children.  We disagree.  Appellant’s trial counsel’s questions did not seek to establish evidence of appellant’s good character or propensity for moral and safe relations with small children; rather, the challenged questions sought to establish that appellant was not known to have committed a sexual offense against a child in the past.  These questions were an impermissible attempt to put on evidence of specific instances of good conduct to support the inference that it is unlikely that appellant touched the complainant inappropriately.  See Valdez, 2 S.W.3d at 520; see also Schmidt v. State, 449 S.W.2d 39, 40 (Tex. Crim. App. 1969) (while the defendant may offer reputation evidence on his law-abiding character, he may not testify that he has never been in trouble with a law enforcement officer).  Accordingly, the trial court did not abuse its discretion in refusing to allow the testimony.

Appellant also argues that “the trial court denied him the right to present a complete defense under the Due Process Clause of the Fourteenth Amendment to the United States Constitution” or the Sixth Amendment of the United States Constitution by excluding this evidence.  Appellant has waived this argument on appeal by not first presenting it to the trial court.  See Tex. R. App. P. 33.1(a); Reyna v. State, 168 S.W.3d 173, 176-79 (Tex. Crim. App. 2005) (failure to present a particular argument to the trial court in support of the admission of excluded evidence waives that argument for appeal); see also Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995) (en banc) (appellant’s failure to argue in the trial court that he was denied right to present a defense and right to due process or course of law in violation of federal and state constitutions waived those arguments on appeal).

Nonetheless, even if appellant had preserved this argument for our review, it is without merit.  A trial court’s ruling excluding evidence can rise to the level of a constitutional violation if (1) “a state evidentiary rule . . . categorically and arbitrarily prohibits the defendant from offering otherwise relevant, reliable evidence which is vital to his defense;” or (2) “a trial court’s clearly erroneous ruling [excludes] otherwise relevant, reliable evidence which ‘forms such a vital portion of the case that exclusion effectively precludes the defendant from presenting a defense.’”  Wiley v. State, 74 S.W.3d 399, 405 (Tex. Crim. App. 2002) (quoting Potier v. State, 68 S.W.3d 657, 665 (Tex. Crim. App. 2002) (en banc)). 

Appellant asserts that the trial court erroneously excluded evidence; he does not argue that an evidentiary rule is unconstitutional.  In order to prevail on an erroneous evidence argument, appellant first must show that the trial court’s ruling was erroneous.  See id. at 406.  Because the trial court did not abuse its discretion in excluding the complained of evidence, appellant has failed to show that the trial court’s ruling was erroneous, or that it was so clearly erroneous that it violated his constitutional rights.  See id. at 408.       

We overrule appellant’s third, fourth, fifth, and sixth issues.

Conclusion

We affirm the trial court’s judgment.

                                                                        /s/        William J. Boyce

                                                                                    Justice

Panel consists of Justices Frost, Boyce, and Sullivan.

Do Not Publish — Tex. R. App. P. 47.2(b).

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[1] Appellant pleaded true to three enhancement paragraphs.

[2] The State argues that appellant failed to preserve error on his complaint as pertaining to Zavala’s testimony.  In general, to preserve error on appeal, a contemporaneous objection must be made and an adverse ruling obtained.  Tex. R. App. P. 33.1(a).  This means the trial court must explicitly or implicitly make an adverse ruling or refuse to rule on the objection.  Id.  

During trial, appellant’s counsel asked Zavala, “Has [appellant] ever touched you inappropriately?”  The State objected and the trial court excused the jury from the courtroom.  The trial court then heard arguments relating to whether the previous question violated the trial court’s order on one of appellant’s motions in limine.  The hearing ended with the trial court stating, “You know, Mr. Gerard, that that was an inappropriate, uncalled for, unethical question to ask in front of this jury. . . .  Don’t ask it again or any other question like that.” 

The trial court effectively sustained the State’s objection when it ordered appellant’s trial counsel not to ask that question again “or any other question like that.”  Therefore, the ruling was adverse to appellant and error was preserved.  See id.