Luis Segura, Jr. v. State ( 2004 )

  NUMBER 13-03-098-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

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LUIS SEGURA, JR.,                                                           Appellant,

v.

THE STATE OF TEXAS,                                                      Appellee.

___________________________________________________________________

On appeal from the 139th District Court

of Hidalgo County, Texas.

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MEMORANDUM OPINION

Before Justices Yañez, Rodriguez, and Garza

Memorandum Opinion by Justice Rodriguez

         Appellant, Luis Segura, Jr., was indicted on two felony counts of aggravated sexual assault. See Tex. Pen. Code Ann. § 22.021 (Vernon 2003). A jury acquitted appellant on the first count of the indictment, but found him guilty on the second count. Appellant was sentenced to eighteen years imprisonment and fined $5,000.00. Appellant challenges his conviction by five points of error. We affirm.

         The trial court has certified that this case is not a plea-bargain case, and the defendant has the right of appeal. See Tex. R. App. P. 25.2(a)(2).   

I. FACTS

         As this is a memorandum opinion, and the parties are familiar with the facts, we will not recite them here except as necessary to advise the parties of the Court’s decision and the basic reasons for it. See Tex. R. App. P. 47.4.   

II. SUFFICIENCY OF THE EVIDENCE

         We construe appellant’s first point of error as a challenge to the sufficiency of the evidence supporting the guilty verdict.

A. Standard of Review

         In a legal sufficiency review, this Court must examine the evidence presented in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense present beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Young v. State, 14 S.W.3d 748, 753 (Tex. Crim. App. 2000). In making this determination, the reviewing court considers all the evidence admitted that will sustain the conviction, including improperly admitted evidence. Conner v. State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001). Questions concerning the credibility of witnesses and the weight to be given their testimony are to be resolved by the trier of fact. Mosley v. State, 983 S.W.2d 249, 254 (Tex. Crim. App. 1998). Evidence is not rendered insufficient when conflicting evidence is introduced. Matchett v. State, 941 S.W.2d 922, 936 (Tex. Crim. App. 1996). The reviewing court must assume that the fact finder resolved conflicts, including conflicting inferences, in favor of the verdict, and must defer to that resolution. Id. 

         On appeal, we measure the legal sufficiency of the evidence by the elements of the offense as defined by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). Such a charge accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s theories of liability, and adequately describes the particular offense for which the defendant is being tried. Id.  

         We also measure the factual sufficiency of the evidence by the elements of the offense as defined by a hypothetically correct jury charge for the case. See Adi v. State, 94 S.W.3d 124, 131 (Tex. App.–Corpus Christi 2002, pet. ref’d). In evaluating the factual sufficiency of the evidence, this Court must complete a neutral review of all the evidence. Vasquez v. State, 67 S.W.3d 229, 236 (Tex. Crim. App. 2002); King v. State, 29 S.W.3d 556, 563 (Tex. Crim. App. 2000). We must then determine whether the proof of guilt is so obviously weak as to undermine confidence in the jury’s determination or whether the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. King, 29 S.W.3d at 563; Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). We are also required to accord due deference to the fact-finder’s determinations on the weight and credibility of the evidence and may not merely substitute our own judgment. Swearingen v. State, 101 S.W.3d 89, 97 (Tex. Crim. App. 2003).   

B. Analysis

         Appellant contends that the evidence is legally and factually insufficient to support a guilty verdict for aggravated sexual assault based on the allegations found in paragraph one of count two of the indictment. To prove aggravated sexual assault under the theory alleged in paragraph one, the State was required to prove that: (1) on or about March 28, 2002, appellant did then and there intentionally or knowingly cause his sexual organ to penetrate the mouth of the victim; and (2) the victim was a child younger than seventeen years of age and was not the spouse of appellant; and (3) the victim was then and there younger than fourteen years of age. See Tex. Pen. Code Ann. §§ 22.011(c)(1); 22.021(a)(1)(B)(ii); 22.021(a)(2)(B) (Vernon 2003); see Malik, 953 S.W.2d at 240.

         In support of this allegation, the State called the victim to testify. The victim was nine years old at the time of trial. She testified that appellant forced her to perform oral sex on him while her mother was away from the house. The victim described appellant’s sexual organ and what appellant was wearing. The victim also described the positions they were in while she performed oral sex. On cross examination, however, the victim testified she did not know where the male sexual organ was located. In addition, the victim testified that she did not tell her mother what had happened initially because appellant had threatened to hit her.

         Appellant’s wife, who is also the victim's mother, testified that at the time of the alleged events, appellant, a truck driver, was on the road. He was also a patient in a Florida hospital for a period of time during the month of March. Appellant’s wife also testified that the victim had told lies in the past but that she believed the victim was telling the truth regarding the sexual assault.

         Nonetheless, testimony of a sexual abuse victim alone is sufficient to support a conviction. Garcia v. State, 563 S.W.2d 925, 928 (Tex. Crim. App. 1978). Courts give wide latitude to testimony given by child victims of sexual abuse. Villalon v. State, 791 S.W.2d 130, 134 (Tex. Crim. App. 1990). The victim’s description need not be precise in describing what happened to her, and she is not expected to express herself at the same level of sophistication as an adult. Id. There is no requirement that the victim’s testimony be corroborated by medical or physical evidence. Garcia, 563 S.W.2d at 928; Kemple v. State, 725 S.W.2d 483, 485 (Tex. App.—Corpus Christi 1987, no writ).  

         Reviewing this evidence in the light most favorable to the verdict, see Jackson, 443 U.S. at 319, and assuming the fact finder resolves conflicts in favor of the verdict, see Matchett, 941 S.W.2d at 936, we conclude any rational trier of fact could have found the essential elements of aggravated sexual assault beyond a reasonable doubt. Therefore, the evidence is legally sufficient to sustain the conviction of aggravated sexual assault. Moreover, after reviewing all of the evidence neutrally, see Vasquez, 67 S.W.3d at 236, and according due deference to the fact finder’s determination of the weight and credibility of the evidence, see Swearingen, 101 S.W.2d at 97, we conclude that the proof of guilt is not so obviously weak as to undermine confidence in the jury’s determination. See King, 29 S.W.3d at 563. Nor is the proof of guilt, although adequate if taken alone, greatly outweighed by contrary proof. See id. Therefore, the evidence is factually sufficient to support appellant’s conviction. Appellant’s first point of error is overruled.  

III. MOTION FOR INSTRUCTED VERDICT

         By his second point of error, appellant contends the trial court erred in denying his motion for instructed verdict as to paragraph two of count two. Paragraph two reads, in relevant part, as follows:

[Segura], on or about the 28th day of March A.D., 2002, and before the presentment in this indictment, in Hidalgo County, Texas, did then and there intentionally or knowingly cause the finger of . . . a child who was then and there younger than 14 years of age and not the spouse of the defendant, to penetrate the anus of the defendant[.]

         A point of error complaining about a trial court's failure to grant a motion for directed verdict is treated as a challenge to the legal sufficiency of the evidence. Williams v. State, 937 S.W.2d 479, 482 (Tex. Crim. App. 1996). However, "[i]t is well-settled that when a general verdict is returned and the evidence is sufficient to support a finding of guilt under any of the paragraph allegations submitted the verdict will be upheld." Fuller v. State, 827 S.W.2d 919, 931 (Tex. Crim. App. 1992) (en banc); Rabbani v. State, 847 S.W.2d 555, 558 (Tex. Crim. App. 1992). Therefore, even assuming the trial court erred in failing to grant appellant's motion for directed verdict as to paragraph two of count two, the verdict will be upheld because the jury returned a general verdict and because we have concluded the evidence is sufficient to support the allegations of aggravated sexual assault found in paragraph one of count two. Accordingly, appellant's second point of error is overruled.IV. LESSER-INCLUDED OFFENSE

         By his third point of error, appellant contends the trial court erred in denying his request for a lesser-included offense of indecency with a child in the jury charge. See Tex. Pen. Code Ann. § 21.11 (Vernon 2003). In response, the State argues that appellant failed to request a charge on any lesser-included offense and, thus, did not preserve error on this issue. Assuming without deciding whether appellant preserved error, under the facts of this case, we conclude the trial court was not required to give a jury charge instruction on indecency with a child as a lesser-included offense.

A. Standard of Review

         When we review alleged charge error, we determine: (1) whether error actually exists in the charge; and (2) whether any resulting harm requires reversal. Castaneda v. State, 28 S.W.3d 685, 694 (Tex. App.—Corpus Christi 2000, no pet.); see Mann v. State, 964 S.W.2d 639, 641 (Tex. Crim. App. 1998).

B. Analysis  

         The Texas Court of Criminal Appeals has held that indecency with a child can be a lesser-included offense of aggravated sexual assault. See Ochoa v. State, 982 S.W.2d 904, 907-12 (Tex. Crim. App. 1998). However, whether it is a lesser-included offense of aggravated sexual assault depends on the facts of each case. DeMoss v. State, 12 S.W.3d 553, 560 (Tex. App.—San Antonio 1999, pet. ref’d). A charge on the lesser-included offense of indecency with a child is required if the evidence at trial raises the issue that appellant intended to arouse and gratify his sexual desire while in the course of committing the alleged penetration of the victim. Ochoa, 982 S.W.2d at 908.

         In this case, a charge on the lesser-included offense of indecency with a child is not required because the evidence does not raise the issue that appellant intended to arouse and gratify his sexual desire within the course of committing aggravated sexual assault. See id. There was no evidence of conduct leading up to but just short of penetration that would constitute indecency with a child. Cunningham v. State, 726 S.W.2d 151, 155 (Tex. Crim. App. 1987). Accordingly, the trial court did not err in denying appellant's request, if any, for a lesser-included offense of indecency with a child in the jury charge. See Castaneda, 28 S.W.3d at 694. Appellant’s third point of error is overruled.

V. CHILD WITNESS TESTIMONY

         By his fourth point of error, appellant contends the trial court erred in allowing the child witnesses to testify via closed circuit television. However, a review of the record reveals the children testified before a live jury. Appellant’s contention has no merit; thus we overrule appellant’s fourth point of error.

VI. CLOSING ARGUMENT

         By his fifth point of error, appellant contends the trial court erred in allowing the prosecution’s closing arguments to inflame the jury.

A. Standard of Review

         The standard of review for improper jury argument is to review the record in its entirety to determine whether any erroneous statements were made, and if so, whether they were so prejudicial as to deprive the appellant of a fair and impartial trial. Willis v. State, 785 S.W.2d 378, 385 (Tex. Crim. App. 1989). However, before a defendant will be permitted to complain on appeal about an erroneous jury argument, the defendant will have to show he objected and pursued his objection to an adverse ruling. Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996); see Tex. R. App. P. 33.1. The failure to object to a jury argument forfeits the right to complain about the argument on appeal. Cockrell, 933 S.W.2d at 89.

B. Analysis

         In this case, appellant conceded that he failed to object to the prosecution’s final argument during the punishment phase of the trial. Because appellant failed to object, appellant forfeited his right to complain about the argument on appeal. See id. Therefore, appellant’s fifth point of error is overruled.

VII. CONCLUSION

         The judgment of the trial court is affirmed.                                                                                         

                                                                        NELDA V. RODRIGUEZ

                                                                        Justice

Do not publish.

Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and

filed this 26th day of August, 2004.