Rojas, Carlos Ismael v. State ( 2003 )

Opinion issued February 6, 2003

  In The

Court of Appeals

For The

First District of Texas

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  NO. 01-02-00262-CR

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CARLOS ISMAEL ROJAS, Appellant  

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 184th District Court

Harris County, Texas

Trial Court Cause No. 866164

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MEMORANDUM OPINION  

          A jury found appellant, Carlos Ismael Rojas, guilty of aggravated sexual assault of a child and assessed his punishment at confinement for life. In his sole point of error, appellant contends that the evidence was factually insufficient to support his conviction. We affirm.

Facts

          In the summer of 1997, the complainant, a nine-year-old boy, met appellant through a family friend. Appellant, an auto mechanic, asked the complainant’s family if he could teach his trade to the complainant. The complainant’s family agreed because they came from the same country and appellant had a good reputation as a mechanic. Appellant spent a lot of time alone with the complainant, buying toys for him and taking him out to eat.

          The complainant testified that one day that summer, appellant took him to appellant’s home, which had a “jail door” that appellant locked with a key. Appellant told the complainant that “he was going to rape [him],” and the complainant started to cry. Appellant attempted to calm the complainant by telling him that rape was “a good thing,” and he then forced the complainant to sit on his lap. Appellant ordered the complainant to take off his clothes and lie down on the bed. Appellant undressed and opened a bottle of cream with a black top. The complainant testified that appellant put the cream “on his sexual organ” and he “put [the cream] on my butt.” The complainant further testified that appellant “put his sexual organ on my bottom” and then“inside” the complainant’s body. After the sexual assault, appellant told the complainant to not be ashamed and insisted that the complainant eat a banana.

             Before taking the complainant home, appellant warned him not to tell anyone about the sexual assault or appellant might do “something” to the complainant. The complainant did not tell anyone about the sexual assault, fearing that appellant would “kill” him or his parents. Four years later, the complainant, while listening to a man preach about “religion, like when God is coming, when the end of the world is,” became very upset. The complainant then confessed in private to his mother that he had been sexually assaulted by appellant, and she reported the incident to the Houston Police department. A police officer took the complainant and his mother to the area where appellant had lived at the time of the assault, but the house had been torn down and replaced with a new house.

          Houston Police officer Sylvia Dreyhill, a member of the Juvenile Sex Crimes Unit, testified that she interviewed the complainant about the sexual assault, that the complainant acted consistently with sexual assault victims she had interviewed in the past, and that she “felt he was sincere, that he was being honest.” Dreyhill separately showed the complainant and his mother a photospread, and the complainant identified appellant as the man who sexually assaulted him.

Factual Sufficiency

          In his sole point of error, appellant contends that the evidence was factually insufficient to support his conviction because the evidence was “wholly” from the complainant’s “vague” testimony, the complainant never specifically stated that appellant contacted his “anus” or “rectum,” and there was “no physical evidence of the crime” because the house where the assault allegedly occurred no longer existed.

          We review factual sufficiency by examining all of the evidence neutrally and asking whether proof of guilt is so obviously weak or greatly outweighed by contrary proof as to indicate that a manifest injustice has occurred. King v. State, 29 S.W.3d 556, 563 (Tex. Crim. App. 2000). We will reverse a fact finder’s determination only if a manifest injustice has occurred. Id. In conducting our analysis, we may disagree with the jury’s determination, even if probative evidence supports the verdict, but we must avoid substituting our judgment for that of the fact finder. Id.

          An aggravated sexual assault of a child occurs when an accused intentionally causes the anus of a child younger than 14 years of age to contact the sexual organ of an actor. Tex. Pen. Code. Ann. §§ 22.021 (a)(1)(B)(iv), (a)(2)(B) (Vernon Supp. 2003). Testimony of a victim, standing alone, even when the victim is a child, is sufficient to support conviction for sexual assault. Ruiz v. State, 891 S.W.2d 302, 304 (Tex. App.—San Antonio, 1994, pet. ref’d). If a child sufficiently communicates to the trier of fact that sexual contact occurred by a touching of any part of the genitals, the evidence is sufficient even though the language used by the child is different from that in the statute which describes the part of the body. See Bellfey v. State, 638 S.W.2d 48, 50-51 (Tex. App.—Houston [1st Dist.] 1982, no pet.); Guia v. State, 723 S.W.2d 763, 766 (Tex. App.—Dallas 1986, pet. ref’d).

          Here, the complainant testified that contact was made between his “bottom” and the appellant’s “sexual organ,” and that appellant put his sexual organ “inside” the complainant’s bottom and it “hurt.” The complainant told his mother of the incident, and the mother testified that the complainant was under 14 years of age at the time of the assault. Both the complainant and his mother identified appellant in court. The mother further testified that the complainant’s behavior changed dramatically after the incident, citing behavioral problems, self-inflicted injuries, and problems at his school. Officer Dreyhill testified that, in her experience, the complainant’s behavior was consistent with young victims of sexual abuse.

          Appellant presented no witnesses and did not testify. However, as noted by appellant, the complainant’s mother also testified that, following the outcry, the complainant was examined by a doctor four years after the alleged assault, but no medical evidence of an assault was detected. In addition, the record indicates that the house in which the assault allegedly took place had been torn down.

          We hold that the complainant’s testimony sufficiently communicated to the jury that appellant touched the complainant’s anus with appellant’s sexual organ. The fact that the house where the assault occurred no longer exists is of no consequence. Moreover, the fact that a medical examination of the complainant did not reveal physical evidence of the sexual assault does not render the evidence factually insufficient. Garza v. State, 18 S.W.3d 813, 820 (Tex. App.—Fort Worth 2000, pet. ref’d).

          After reviewing the entire record, we conclude that the verdict is not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Accordingly, we hold the evidence was factually sufficient to support the jury’s verdict.

          We overrule appellant’s sole point of error.

Conclusion

          We affirm the judgment of the trial court.

                                                                        Terry Jennings

                                                                        Justice

Panel consists of Justices Hedges, Jennings, and Alcala.

Do not publish. Tex. R. App. P. 47.2(b).