Richard Fitzgerald Barroso v. State ( 2008 )

Affirmed and Memorandum Opinion filed January 29, 2008

Affirmed and Memorandum Opinion filed January 29, 2008.

In The

Fourteenth Court of Appeals

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 NO.  14-06-00994-CR

NO.  14-06-00995-CR

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RICHARD FITZGERALD BARROSO, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 268th District Court

Fort Bend County, Texas

Trial Court Cause Nos. 42,922 and 42,923

M E M O R A N D U M   O P I N I O N

Appellant, Richard Fitzgerald Barroso, appeals his convictions after a jury trial for aggravated sexual assault of a child (No. 14-06-00994-CR) and indecency with a child (No. 14-06-00995-CR). The jury sentenced appellant to thirty-five years confinement for aggravated sexual assault of a child and fifteen years for indecency with a child.   We affirm.

BACKGROUND

Appellant lived with his common law wife, Joyce Hales, and her minor daughters from 1997 until 2005.  According to one of his step-daughters, K.H., appellant started sexually abusing her when she was eleven years old.  At trial, K.H. testified that appellant first made her masturbate him when she was eleven years old. Specifically, appellant called K.H. into his bedroom where he was laying on his bed covered with a sheet.  Appellant pulled the sheet away, exposing his penis, and made K.H. masturbate him.  K.H. testified that appellant made her do the same sexual act on him several times thereafter until she was fourteen years old. 

K.H. testified that another incident occurred when she was twelve years old.  She walked into her sister=s toyroom and found appellant sitting naked in a rocking chair staring into a mirror.  Appellant laid K.H. on the floor, put his hand down her shorts, and moved his finger around the inner lips of her vagina. Appellant performed this sexual act on K.H. numerous times thereafter as well.

Another incident occurred when K.H. was fourteen years old.  According to K.H., appellant called her into his bedroom where he was laying naked on his bed.  Appellant told K.H. to get in the bed with him and made K.H. put her mouth on his penis.         

When K.H. was a freshman in high school, she told a friend that she had been sexually abused by appellant; she also told her high school boyfriend the following year.  K.H.=s boyfriend contacted Child Protective Services, and K.H. was eventually taken into protective custody. Interviewed by Detective Rebecca Colunga of the Fort Bend County Sheriff=s Department, K.H. gave a general statement regarding the sexual abuse she endured by appellant.

Appellant was arrested, and the State charged him in three separate indictments with (1) sexual assault of a child by causing his sexual organ to penetrate the mouth of K.H., (2) aggravated sexual assault of a child by causing appellant=s finger to penetrate K.H.=s sexual organ, and (3) indecency with a child by causing contact between K.H.=s hand and appellant=s genitals.

At trial, K.H. testified to several sexual encounters with appellant, including the three detailed above when she was eleven, twelve, and fourteen years old. Joyce Hales testified that she received jail letters from appellant while he was awaiting trial, asking for forgiveness.  Detective Colunga testified that she interviewed K.H., wherein she gave a general description of various sexual encounters with appellant.  Appellant did not testify at the guilt/innocence stage of trial.  The jury found appellant guilty of aggravated sexual assault of a child and indecency with a child, but not guilty of sexual assault.

At punishment, K.H.=s sister testified that when she was thirteen years old, appellant sexually abused her by rubbing his hands on her vagina on several separate occasions.  Appellant also testified at punishment; he accepted responsibility for Avictimizing [his] family@ and admitted that he had various sexual encounters with K.H.  The jury sentenced appellant to thirty-five years for aggravated sexual assault of a child and fifteen years for indecency with a child.  The trial court ordered the sentences run concurrently.  On appeal, appellant raises five points of error: (1) the evidence is legally insufficient to uphold appellant=s convictions for aggravated sexual assault of a child and indecency with a child; (2) the evidence is factually insufficient to uphold appellant=s convictions for aggravated sexual assault of a child and indecency with a child; (3) the trial court erred in admitting K.H.=s outcry statement because it is hearsay; (4) the trial court erred in failing to conduct a reliability hearing outside the presence of the jury to determine the admissibility of K.H.=s outcry statement; and (5) the trial court erred in admitting K.H.=s outcry statement because the State failed to give proper notice to appellant.

SUFFICIENCY OF THE EVIDENCE

 In appellant=s first two points of error, he argues that the evidence is legally and factually insufficient to uphold is convictions for aggravated sexual assault of a child and indecency with a child.  In a legal sufficiency review, we view all the evidence in the light most favorable to the verdict and determine whether a trier of fact could not have found each element of the offense 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).  The jury is the exclusive judge of the credibility of witnesses and of the weight to be given to their testimony.  Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996).  Reconciliation of conflicts in the evidence is within the exclusive province of the jury.  Id. Thus, when performing a legal sufficiency review, we may not reevaluate the weight and credibility of the evidence and substitute our judgment for that of the fact-finder.  Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999).  We must resolve any inconsistencies in the testimony in favor of the verdict.  Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000).

When reviewing the factual sufficiency of the evidence to support a conviction, we review all the evidence in a neutral light, favoring neither party.  Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006); Drichas v. State, 175 S.W.3d 795, 799 (Tex. Crim. App. 2005).  We then ask (1) whether the evidence supporting the conviction, although legally sufficient, is nevertheless so weak that the jury=s verdict seems clearly wrong and manifestly unjust, or (2) whether, considering conflicting evidence, the jury=s verdict is against the great weight and preponderance of the evidence.  Watson, 204 S.W.3d at 414‑15, 417; Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000).   An appellate court judge cannot conclude that a conviction is Aclearly wrong@ or Amanifestly unjust@ simply because, on the quantum of evidence admitted, he would have voted to acquit had he been on the jury.  Watson, 204 S.W.3d at 417.  Nor can an appellate court declare that a conflict in the evidence justifies a new trial simply because it disagrees with the jury=s resolution of that conflict.  Id. Additionally, we give due deference to the jury=s determinations, particularly those concerning the weight of the evidence and the credibility of witness testimony.  See Johnson, 23 S.W.3d at 8-9. 

The Charged Offenses

Appellant was charged and convicted of aggravated sexual assault of a child by causing his finger to penetrate K.H.=s sexual organ.  A person commits the offense of aggravated sexual assault of a child if he intentionally or knowingly causes the penetration of the sexual organ of a child by any means and the victim is younger than fourteen years of age.  Tex. Penal Code Ann. ' 22.021 (Vernon 2003).

Appellant was also convicted of indecency with a child by causing contact between his genitals and K.H.=s hand.  A person commits indecency with a child if he has sexual contact with a child younger than 17 years of age, who is not the person=s spouse.  Id. at ' 21.11(a)(1).  Sexual contact is any touching of any part of the body of a child with the anus, breast, or any part of the genitals of a person, if the act is committed with the intent to arouse or to gratify the sexual desire of any person.  Id. at 21.11(c)(2).

Age of the Victim

Appellant argues in his first two points of error that the evidence is legally and factually insufficient to uphold each of his convictions because K.H. was unable to testify as to her exact age at the time of the offenses.  In support of this argument, appellant relies on K.H.=s testimony, wherein she stated that she could not remember being thirteen or fourteen or a particular time when some of the incidents occurred. 

To prove the offense of aggravated sexual assault of a child, the State had to provide evidence that the offense took place before K.H.=s fourteenth birthday, and evidence that the indecency with a child offense occurred before her seventeenth birthday.  On direct examination, K.H. testified that she was eleven years old when appellant first made sexual contact with her, making her masturbate him, and twelve years when appellant moved his finger around the inner lips of her vagina.  K.H. also testified that she could not remember the particular time when appellant moved his finger beyond the internal lips of her vagina, into the vaginal canal.  Regardless of K.H.=s inability to recall the exact date of each sexual act, she consistently testified at trial that she was eleven years old when appellant first made her masturbate him, and that he made her continue to do so until she was fourteen years old.  K.H. consistently testified that she was twelve years old when appellant moved his finger around the inner lips of her vagina during the toyroom incident.   A rational juror could find beyond a reasonable doubt that K.H. was under the age of fourteen at the time of the aggravated sexual assault and under the age of seventeen when appellant committed the offense of indecency with a child. Furthermore, we cannot say that the jury=s findings were so contrary to the overwhelming weight of the evidence as to be clearly wrong and manifestly unjust.  

Penetration

Appellant also argues in his first point of error that the evidence is legally insufficient to support his conviction of aggravated sexual assault of a child because there is no evidence that he penetrated K.H.=s sexual organ.  Appellant relies on Vernon v. State, 841 S.W.2d 407 (Tex. Crim. App. 1992), which held that while mere contact with the outside of an object does not amount to penetration of it, pushing aside and reaching beneath a natural fold of skin into an area of the body not usually exposed to view, even in nakedness, is a significant intrusion beyond mere external contact.  Id. at 409.  Appellant argues that, at most, he touched the external area of K.H.=s vagina, and did not penetrate it. However, proof of penetration of the vaginal canal is not required to establish penetration under the foregoing allegations and within the meaning of section 22.021 of the Penal Code.  See id.; Karnes v. State, 873 S.W.2d 92, 96 (Tex. App.CDallas 1994, no writ).   AVagina@ and Afemale sexual organ@ are not synonymous terms.  Everage v. State, 848 S.W.2d 357, 358 (Tex. App.CAustin 1993, no writ).  AFemale sexual organ@ is a more general term than Avagina@ and refers to the entire female genitalia.  See Aylor v. State, 727 S.W.2d 727, 729-30 (Tex. App.CAustin 1987, writ ref=d) (stating that the Legislature made the statutory amendment and used the term Afemale sexual organ@ because of the restrictive meaning given to the term Avagina@ by court decisions).

On direct examination, K.H. testified that appellant put his hands down her shorts and into her underwear when she was twelve years old during the toyroom incident. When appellant began to move his finger around the inner lips of her vagina, K.H. began to Asquirm.@  Testimony of the sexual assault victim alone is sufficient evidence of penetration to support a conviction.  Karnes, 873 S.W.2d at 96.  Appellant also confessed to Detective Colunga, in the videotape confession played to the jury, that he touched K.H.=s Abare vagina.@  Further, appellant=s letters pleading for forgiveness can be interpreted as evidence of his guilt.  In light of this evidence, a reasonable fact-finder could have concluded beyond a reasonable doubt that appellant=s finger penetrated K.H.=s sexual organ.

Intent to Arouse or Gratify

Appellant also argues that the evidence is legally insufficient to uphold his conviction of indecency with a child because there is no evidence that he had the intent to sexually arouse or gratify himself.  Intent to arouse or to 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); Perales v. State, 226 S.W.3d 531, 535 (Tex. App.CHouston [1st Dist.] 2006, pet. filed). 

The jury could have inferred the requisite intent from appellant=s statements to police and the surrounding circumstances.  Appellant admitted to Detective Colunga that he had K.H. masturbate him, which made him ejaculate.  K.H. testified that appellant had her masturbate him until his penis became hard and a white substance eventually came out.  Appellant also told K.H. not to tell anyone about the sexual encounters because he would go to jail.  A reasonable fact-finder could have concluded beyond a reasonable doubt that appellant intended to arouse or gratify himself during these sexual encounters.

After reviewing all of the evidence under the appropriate standards of review, we hold that the evidence is legally and factually sufficient to support appellant=s convictions for aggravated sexual assault of a child and indecency with a child.  We overrule appellant=s first and second points of error. 

ADMISSION OF OUTCRY STATEMENT

In appellant=s third, fourth, and fifth points of error, he argues that the trial court erred by admitting K.H.=s outcry statement because: (1) it is hearsay; (2) the trial court failed to conduct a reliability hearing outside the presence of the jury to determine its admissibility; and (3) appellant was given improper notice of the statement.

Outcry Exception to Hearsay Rule

Appellant complains in his third point of error that K.H.=s boyfriend, who was not the outcry witness, was permitted to testify to an out-of-court statement made by K.H. Appellant objected to the complained of testimony, and the trial court sustained the objection.  Appellant, however, did not seek further relief.  To preserve error for appellate review, a party must make a timely specific objection and obtain an adverse ruling from the trial court.  See Tex. R. App. P. 33.1 (a)(2); Valle v. State, 109 S.W.3d 500, 509 (Tex. Crim. App. 2003).  Once appellant=s hearsay objection was sustained, counsel should have pursed the objection to an adverse ruling to properly preserve possible error for review.  Dixon v. State, 2 S.W.3d 263, 265 (Tex. Crim. App. 1998). Because appellant did not obtain an adverse ruling, no error is presented.  See Dooley v. State, 65 S.W.3d 840, 842 (Tex. App.CDallas 2002, pet. ref=d).  We overrule appellant=s third point of error.

Reliability Hearing

In appellant=s fourth point of error, he argues that the trial court erred in admitting outcry testimony without first holding a preliminary hearing to determine the reliability of the testimony pursuant to article 38.072.  See Tex. Code Crim. Proc. Ann. art. 38.072 ' 2(b)(2) (Vernon 2005).  Article 38.072, section 2(b)(2) provides as follows:

(b) A statement that meets the requirements of Subsection (a) of this article is not inadmissible because of the hearsay rule if:

. . . .

(2) the trial court finds, in a hearing conducted outside the presence of the jury, that the statement is reliable based on the time, content, and circumstances of the statement.

Id.

The provisions of article 38.072 are mandatory and must be complied with in order for the outcry statement to be admissible over a hearsay objection.  Long v. State, 800 S.W.2d 545, 547 (Tex. Crim. App. 1990).  Here, however, appellant=s hearsay objection was sustained.  See Smith v. State, 131 S.W.3d 928, 932 (Tex. App.CEastland 2004, pet. ref=d) (stating that the trial court only commits error if it overrules the hearsay objection without conducting a hearing).  Because the hearsay objection was sustained, there was no basis for the trial court to conduct a hearing regarding the admissibility of the complained of testimony.  Furthermore, counsel failed to seek further relief after the court=s ruling and did not get an adverse ruling on his objection. See Tex. R. App. P. 33.1.^[1]  Accordingly, no error is presented.  We overrule appellant=s fourth point of error.

Notice

In appellant=s fifth point of error, he complains that the trial court improperly admitted the outcry statement because he was not given proper notice.  The State maintains that appellant has failed to preserve error regarding this contention.  We agree.  Appellant did not object to the introduction of the outcry statement on the ground he had not received the requisite notice. Failure to do so results in a waiver of error on appeal.^[2] Id.  We overrule appellant=s fifth point of error.

We affirm the trial court=s judgment.

/s/        Adele Hedges

Chief Justice

Judgment rendered and Memorandum Opinion filed January 29, 2008.

Panel consists of Chief Justice Hedges and Justices Anderson and Boyce. 

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

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^[1]  Appellant also did not specifically request a reliability hearing.  See Smith, 131 S.W.3d at 932 (holding that the requirement to conduct a reliability hearing was not invoked because appellant failed to request a hearing); Cates v. State, 72 S.W.3d 681, 699 (Tex. App.CTyler 2001, pet. ref=d) (failure to request an article 38.072 hearing waives error on appeal); see also Diaz v. State, 125 S.W.3d 739, 743 (Tex. App.CHouston [1st Dist.] 2003, pet. ref=d) (holding that appellant failed to preserve error because he did not object to the trial court=s denial of that hearing).

^[2]  There is a split among some courts of appeals as to whether a general hearsay objection to outcry testimony is sufficient to preserve error with regard to the absence of the notice requirement. Compare Garcia v. State, 907 S.W.2d 635, 637 (Tex. App.CCorpus Christi 1995) (finding waiver), aff=d, 981 S.W.2d 683 (Tex. Crim. App. 1998), and Skidmore v. State, 838 S.W.2d 748, 753 (Tex. App.CTexarkana 1992, writ ref=d) (finding waiver); with Gabriel v. State, 973 S.W.2d 715, 719 (Tex. App.CWaco 1998, no pet.) (finding error preserved by general hearsay objection).  Nevertheless, the record in this case reveals that the State sent adequate notice of the outcry statement in accordance with article 38.072 to appellant on March 21, 2006, more than six months before the trial.