Virgilio Reyes Aguilar v. State ( 2008 )

Affirmed and Memorandum Opinion filed January 22, 2008

Affirmed and Memorandum Opinion filed January 22, 2008.

In The

Fourteenth Court of Appeals

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NO. 14-06-00959-CR

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VIRGILIO REYES AGUILAR, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 185th District Court

Harris County, Texas

Trial Court Cause No. 1055002

M E M O R A N D U M   O P I N I O N

Appellant Virgilio Reyes Aguilar was convicted of sexual assault of a child and sentenced to twenty-years confinement in the Texas Department of Criminal Justice, Institutional Division.  In two issues, he challenges the legal and factual sufficiency of the evidence to support his conviction.  Because we conclude the evidence is legally and factually sufficient, we affirm.

I.  Factual and Procedural Background

On January 24, 2006, appellant was indicted for the offense of sexual assault of a child alleged to have occurred on or about July 15, 2004.  At his trial, which began on October 24, 2006, the State presented testimony from the complainant (AC.C.@), her mother, the investigating officer, and the physician who examined the complainant following her outcry regarding the assault.

The complainant  C.C. was born May 19, 1998.  According to C.C.=s mother, C.C. and her family lived in a townhouse near appellant from about August 2004 to August 2005.  While they lived there, C.C. became friends with appellant=s step-daughter, AJ.L.@  The two girls frequently played together in a large garden area in the center of the townhome complex.  C.C.=s mother testified that C.C. went outside alone to play with her friends and also went to J.L.=s house to play.  According to C.C.=s mother, C.C. had suffered from a brain lesion earlier in her life that affected her speech and education, but C.C.=s physical development was normal. Her mother explained that C.C. could not read or write and had difficulty with dates and times, but she did recognize some names and numbers.  C.C.=s mother testified that, during the time that they lived near appellant, C.C. attended special education classes.^[1] C.C. was dropped off by the school bus at about 2:30 in the afternoon, but C.C.=s father was always present when she was dropped off. 

C.C.=s mother stated that C.C. made her outcry at church after another girl disclosed abuse in an unrelated case.  The police were called and began investigating the case.  According to C.C.=s mother, C.C. knew who had abused her and cooperated with the investigation.  C.C. told both the investigating officers and the hospital staff what had happened to her.  Her mother testified that although C.C. did not understand the word Asex,@ she could describe what happened to her.  She also stated C.C. had told her something was happening before she made her outcry, but C.C. would not give any details because she did not want to cause any problems with her father.  According to her mother, C.C.=s nickname was AChacha.@

Holly Ann Whillock, an officer in the juvenile sex crimes unit at the Houston Police Department, testified next. According to Whillock, she had investigated many sexual assault cases.  She stated that she met with C.C. and interviewed her with an interpreter present. Whillock described the interview as Adifficult,@ partly due to the complications of working through an interpreter, and also because Ait wasn=t easy for [C.C.] to speak about@ what had happened.  According to Whillock, C.C. had problems expressing what had happened to her, even though she wanted to, because she had difficulty Aput[ting] words to the actions that were taken against her.@  Whillock stated that C.C.=s statements were consistent with her prior statements to the patrol officer who had interviewed her immediately after she made her outcry.  Based on C.C.=s statements, police were able to identify appellant as a suspect.  According to Whillock, C.C. identified appellant through a photo array as the Aman who gave her money.@  After C.C. identified appellant, Whillock attempted to contact him, but was unable to do so.  Another investigator spoke with appellant; according to Whillock, appellant initially denied knowing C.C., but later admitted he knew her as AChacha.@ On cross-examination, Whillock acknowledged that no one from the police department had checked with appellant=s employer regarding his work schedule and no one had attempted to discover whether anyone else had lived with appellant when the assault occurred.  In response to questions by appellant, Whillock  verified that C.C. did not identify appellant as the man who assaulted her or who touched her improperly, but as Athe man that used to give [her] money.@  Whillock also stated that C.C. indicated during her interview that the assault occurred when she was eleven years old.

Dr. Donna Mendez, the supervising physician at Texas Children=s Hospital, testified regarding an examination she performed on C.C. on September 14, 2005.  According to Dr. Mendez, the exam was normal. But she also stated, AThe majority of times, that=s C in 90 to 95 percent of the time, it=s a normal exam, even though there=s been admitted assault.@

C.C. testified next.  Although she was eighteen at the time of trial, C.C. initially said she was fifteen when asked her age; she later described herself as seventeen years old.  C.C. referred to both her own and appellant=s sexual organs as Acolita.@  She indicated that appellant often took her into his bedroom or his daughter=s bedroom.  Using anatomically correct dolls, C.C. indicated that appellant put his penis in her vagina, sucked her vaginal area, and bit her breasts.  C.C. verified that appellant Astuck his colita into her colita@; she also described how appellant would get on top of her and Astruggle,@ which made her feel Abad.@  She testified that appellant wanted her to suck his Acolita,@ but she refused.  She stated that appellant gave her money so she would not tell anyone about what had happened; she also said he told her he wanted to be her Aboyfriend@ and have a baby with her.  She testified that appellant was the one who had assaulted her and described  an incident that had occurred in a truck.  She also stated that the abuse occurred Aevery day.@  When asked about J.L.=s uncle on cross-examination, C.C. stated that he was her Aboyfriend@ for about a year. She further acknowledged that she had met with the prosecutor every day for two weeks prior to trial.  After she testified, the State re-called her mother, who stated that C.C. had only met with the prosecutor twice before trial.  The State then rested its case-in-chief.

Appellant=s thirteen-year-old step-daughter, J.L., testified for appellant.  J.L.  stated that appellant was her step-father.  She also testified that her uncle had lived with her family in July 2004.  J.L. indicated that during the 2004 and 2005 school years, she arrived home from school at about 4:00 p.m. each day.  She explained that her mother worked from 7:00 a.m. to 4:00 p.m. daily, and that appellant worked from 8:00 a.m. to about 5:00 or 6:00 p.m.  Her uncle had sometimes stayed at home while everyone else was away.  According to J.L., C.C. did not play in her house and never informed her about the abuse.^[2]

Sergeant Mark Loera of the Houston Police Department testified next.  He stated that he read appellant his rights and took appellant=s statement.  According to Loera, appellant never asked for an attorney nor refused to speak with him.  During cross-examination, Loera indicated that when he showed appellant a photograph of C.C. and asked whether appellant knew her, appellant initially stated he did not recognize her. Later, when Loera told appellant that C.C. had visited his step-daughter, appellant admitted knowing her as AChacha,@ but denied assaulting her.

According to Quang Tu Ho, appellant=s employer at the time of the assault, appellant worked for his seafood wholesale company.  Ho explained that appellant=s normal work hours were from 9:00 a.m. to 5:00 or 6:00 p.m.  Ho also brought appellant=s work records for the relevant time period and they were admitted into evidence.  Ho stated that appellant completed his own time sheets, and that appellant=s job involved driving a seafood delivery truck.  According to Ho, appellant was typically out of the office all day delivering seafood, with no one else with him.  After Ho testified, the defense rested.

The jury found appellant guilty as charged and assessed punishment at 20 years confinement in the Texas Department of Criminal Justice, Institutional Division.  This appeal timely followed.

II.  Issues Presented for Review

In two issues, appellant challenges the legal and factual sufficiency of the evidence supporting his conviction. Specifically, he focuses on the lack of physical evidence, the alleged Aunavailability@ of the complainant to appellant, the lack of proof that an offense occurred on or about the alleged date, and the lack of evidence of penetration.

III.  Sufficiency of the Evidence

A.        Legal Sufficiency

When reviewing the legal sufficiency of the evidence, we do not ask whether we believe the evidence at trial established guilt beyond a reasonable doubt.  Jackson v. Virginia, 443 U.S. 307, 318‑19, 99 S. Ct. 2781, 2789 (1979).  Rather, we examine all the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt.  Id. at 319, 99 S. Ct. at 2789; Mason v. State, 905 S.W.2d 570, 574 (Tex. Crim. App. 1995) (en banc).  Our review of the evidence includes both properly and improperly admitted evidence.  Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).  We consider both direct and circumstantial evidence, and all reasonable inferences that may be drawn therefrom in making our determination.  Id.

The indictment in this case alleged appellant Aintentionally and knowingly cause[d] the penetration of the FEMALE SEXUAL ORGAN of [C.C.] . . . , a person younger than seventeen years of age and not his spouse, by placing HIS SEXUAL ORGAN in the FEMALE SEXUAL ORGAN of the Complainant.@  See Tex. Penal Code Ann. ' 22.011(a)(2)(A) (Vernon 2003).  The testimony of a sexual assault victim alone is sufficient to warrant a conviction.  See Tex. Code Crim. Proc. Ann. art. 38.07 (Vernon 2005) (stating that a conviction under section 22.011 of the Penal Code is supportable on the uncorroborated testimony of the victim of the sexual assault without corroboration if the victim was younger than seventeen years old at the time of the alleged offense); Sandoval v. State, 52 S.W.3d 851, 854 n.1 (Tex. App.CHouston [1st Dist.] 2001, pet. ref=d). 

As discussed above, much of C.C.=s testimony came through her demonstrative use of anatomically correct dolls.^[3] She referred to both her own and appellant=s sexual organs as Acolita.@^[4]  She specifically stated that appellant placed his Acolita@ in her Acolita@:

[C.C.]: He asked me to open my legs all the way.

[the State]: Can we let the record reflect she=s opened the legs of the female doll?

[the State]: And when he did that, did he stick his colita into your colita?

[C.C.]: (Nods head affirmatively.)

[the State]: Can you answer out[loud]?

[C.C.]: Yes.

. . .

[the State]: [C.C.], before [appellant] put his colita in your colita, did you see him do anything with his colita?

[C.C.]: He put it in hard.  I asked him, No more. [sic]

This testimony alone is legally sufficient to establish appellant sexually assaulted C.C.  See Tex. Code Crim. Proc. Ann. art. 38.07; Sandoval, 52 S.W.3d at 854 n.1.

Appellant, however, contends that the evidence is insufficient to prove that appellant assaulted C.C. during the brief time period while she was living in close proximity to appellant before she turned seventeen on May 9, 2005.  Although the indictment alleges the sexual assault occurred on or about July 15, 2004, the Aon or about@ language permits the State to prove a date other than the one alleged in the indictment, so long as that date is anterior to presentment of the indictment and within the statutory limitation period.  Sledge v. State, 953 S.W.2d 253,  255B56 (Tex. Crim. App. 1997) (en banc). Although C.C. had difficulty understanding and relating dates and times, she testified that appellant assaulted her during the school year after she got home from school; she stated that appellant took her into Athe room@ while appellant=s daughter was at school.  She also testified that appellant sexually abused her Aevery day.@  Her mother stated that the family moved to the town home near appellant in August 2004.  Viewing this evidence in the light most favorable to the verdict, we conclude that a rational trier of fact could have found that appellant sexually assaulted C.C. between August 2004 and her seventeenth birthday on May 9, 2005.  We therefore overrule appellant=s first issue.

B.        Factual Sufficiency

When reviewing the factual sufficiency of the evidence, we view all the evidence in a neutral light and set aside the verdict Aonly if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.@  Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App.1997) (en banc) (quoting Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App.1996) (en banc)).  Before we may reverse for factual insufficiency, we must first be able to say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury=s verdict.  Watson v. State, 204 S.W.3d 404, 417 (Tex. Crim. App. 2006).  When reviewing the evidence, we must avoid intruding on the factfinder=s role as the sole judge of the weight and credibility of the witness testimony.  Johnson v. State, 23 S.W.3d 1, 9 (Tex. Crim. App. 2000) (en banc). We do not re‑evaluate the credibility of witnesses or the weight of evidence, and we will not substitute our judgment for that of the factfinder.  Johnson v. State, 967 S.W.2d 410, 412 (Tex. Crim. App. 1998).  Finally, we must discuss the most important and relevant evidence that supports the appellant=s argument on appeal.  Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003). 

Appellant points to several inconsistencies in C.C.=s testimony and her apparent confusion; C.C.=s developmental issues are quite evident in the record.  For example, C.C. had variously described the person who assaulted her in prior statements and some of these descriptions did not match appellant=s appearance.  Although she had difficulty describing her assailant in the abstract, however, she repeatedly identified her assailant as J.L.=s father and denied that anyone else assaulted her when pressed by appellant on cross-examination.  Moreover, she was clearly confused regarding dates and times, stating that she had met with the prosecutor in this case every day for two weeks when her mother testified that she had only met with the prosecutor twice before trial.

The jury was informed of C.C.=s developmental disabilities through both testimony and voluminous school records entered into evidence.  In fact, according to her school records, C.C. had an IQ of only 52, which was designated a Avery poor@ classification.  The jury no doubt took these facts into consideration in weighing the credibility of her testimony.  See Westbrook v. State, 29 S.W.3d 103, 112 (Tex. Crim. App. 2000) (en banc) (emphasizing the jury=s role as the sole judge of the weight and credibility of witness testimony).  Indeed, the jury may choose to believe or disbelieve any portion of a witness=s testimony.  Rojas v. State, 171 S.W.3d 442, 446 (Tex. App.CHouston [14th Dist.] 2005, pet. ref=d).  We presume the jury resolved any conflicting evidence in favor of the prevailing party.  Id.

Appellant also relies on the testimony of his employer, Quang Tu Ho, and the copies of his employment records submitted into evidence to support his contention that he did not have access to C.C. during the time period alleged because he worked full-time. But, as noted above, Ho indicated that appellant drove a seafood delivery truck for Ho=s seafood wholesale company.  Appellant was therefore out of the office delivering seafood, with no one to verify where he was between deliveries.  Thus, appellant=s evidence does not establish that he could not have sexually assaulted C.C.  And appellant=s claim that Ano one@ testified that they saw him alone with C.C. during the relevant times ignores C.C.=s testimony that appellant sexually assaulted her when no one else was present. 

Viewing all the evidence in a neutral light, we cannot say that the jury=s verdict is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.   We therefore overrule appellant=s second issue.

IV.  Conclusion

Having overruled appellant=s legal and factual sufficiency challenges, we affirm the judgment of the trial court.

 /s/       Eva M. Guzman

Justice

Judgment rendered and Memorandum Opinion filed January 22, 2008.

Panel consists of Justices Yates, Fowler, and Guzman.

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

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^[1]  C.C.=s educational records were admitted into evidence.  According to these records, C.C. suffered from both mental retardation and speech impairment.

^[2]  A fourteen-year-old friend of C.C. and J.L. also stated that she did not recall ever seeing C.C. in appellant=s house.

^[3]  Much of C.C.=s testimony is difficult to understand and appears inconsistent.  For example, she often did not answer the question asked, and she seemed confused about seemingly simple concepts, such as her own age.  The record, however, also reflects that C.C. suffered from developmental delays and difficulty with language and concepts such as dates and time.

^[4]  For example, the prosecutor asked C.C. what she called the male sexual organ by indicating it on the anatomically correct doll.  C.C. replied, AColita.@ The prosecutor indicated for the record that C.C. was referring to the penis of the male doll.  Later, when C.C. was asked where on her body appellant put his mouth, she indicated, using the dolls, that appellant put his face in her vaginal area.