Raul Garcia Mirano v. State ( 2014 )

Opinion filed June 19, 2014
In The
Eleventh Court of Appeals
___________
No. 11-12-00179-CR
__________
RAUL GARCIA MIRANO, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 70th District Court
Ector County, Texas
Trial Court Cause No. A-36,379
MEMORANDUM OPINION
The jury found Raul Garcia Mirano guilty of eight offenses from a fifteen-
count indictment1: Count Three for aggravated sexual assault of a child, N.L.;
Counts Four, Six, Ten, and Eleven for indecency with a child, N.L.;
Counts Twelve and Fourteen for indecency with a child, E.L.; and Count Fifteen
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The State abandoned Counts One, Two, Seven, Eight, Nine, and Thirteen prior to trial and
abandoned Count Five after it rested.
for continuous sexual abuse of young children, for acts against both N.L. and E.L.
The jury assessed punishment at five years’ confinement for Count Three; two
years’ probated sentences for Counts Four, Six, Ten, Eleven, Twelve, and
Fourteen; and twenty-five years’ confinement for Count Fifteen. The jury assessed
no fines. The court sentenced Appellant accordingly. Appellant challenges the
sufficiency of the evidence on all convictions. We affirm.
I. The Charged Offenses
The grand jury returned a multi-count indictment against Appellant for
aggravated sexual assault of a child, namely N.L.; indecency with a child, for acts
committed against both N.L. and E.L.; and continuous sexual abuse of young
children, for acts committed against both N.L. and E.L.
A person commits the offense of aggravated sexual assault of a child,
younger than fourteen years of age, if he intentionally or knowingly causes the
penetration of the anus or sexual organ of the child by any means or causes the
anus or sexual organ of the child to contact the sexual organ of another person,
including the actor. TEX. PENAL CODE ANN. § 22.021 (West Supp. 2013).
A person commits the offense of indecency with a child, younger than
seventeen years of age, whether the child is of the same or opposite sex, if the
person engages in sexual contact with the child with the intent to gratify the sexual
desire of any person. TEX. PENAL CODE ANN. § 21.11 (West 2011).
A person commits the offense of continuous sexual abuse of a child if
(1) during a period that is thirty or more days in duration, the person commits two
or more acts of sexual abuse, regardless of whether the acts of sexual abuse are
committed against one or more victims, and (2) at the time of the commission of
each of the acts of sexual abuse, the actor is seventeen years of age or older and the
victim is a child younger than fourteen years of age. TEX. PENAL CODE ANN.
§ 21.02 (West Supp. 2013).
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II. The Evidence at Trial
The two victims are N.L. and E.L., granddaughters of Appellant. Their
mother is C.M., who is the daughter of Appellant. C.M. is married to R.L. N.L.
and E.L., who are fourteen years old and eleven years old, respectively, 2 have two
sisters, B.L., seventeen years old, and O.L., nine years old, as well as three
brothers, ages nineteen, twenty, and twenty-three. C.M. and R.L. lived with their
four daughters in Odessa, Texas. Appellant also lived in Odessa, Texas, with his
then-wife, R.B.
N.L. testified she had just finished the eighth grade at the time of trial. N.L.
testified that she first recounted the abuse of Appellant to her mother, C.M., after
C.M. had found her and her sister, E.L., with another neighborhood girl, Nana,
playing “mommy and daddy”; C.M. had inquired if anyone had touched them
inappropriately. C.M. testified that N.L. said that Appellant had touched her, as
did E.L. These outcries occurred in August 2008.
N.L. said the first time she was touched inappropriately by Appellant was at
Christmas, when she became upset that the Christmas card she had made for
Appellant was not displayed at Appellant’s house and had been replaced by an
aunt’s card. N.L. said she cried and went to Appellant’s room where she got
underneath the blankets on the bed. N.L. said she was crying and her eyes were
red when Appellant entered his bedroom and asked why she was crying. N.L. said
that Appellant then put his hands under the blanket and pulled down her pants and
underwear. N.L. testified that, after he pulled her pants and underwear down, he
touched her anus and her vagina. N.L. said that she was touched inside her vagina
lips and her butt during this incident while she was lying on her stomach. N.L.
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These were their ages in June 2012 at the time of trial.
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testified that Appellant touched the back part of her vagina and butt and slipped his
finger in between her butt cheeks and the back part of her vagina. N.L. testified:
I was laying on my stomach and he was touching my butt. And his
hand went in a little bit to my anal part and he had slid his hand
through there to my butt and his hand went by my vagina, but it didn’t
go all the way in, but it was, it kind of went into my lips where -- I
guess that you would say.
N.L. said the second instance of abuse occurred just before N.L. and others
were going to go to the movies, when Appellant asked her if she wanted candy or
chocolates; she did and she went into his bedroom to get the candy, but Appellant
instead lay down on the bed and put her on top of him facing him. N.L. testified
that his privates touched hers and he moved it around but that both of them were
wearing clothes at the time. N.L. testified that the third instance of abuse occurred
when they were in the living room watching television when Appellant asked her
to sit on his lap. She said that she sat on his lap, that she felt his private parts move
against her private parts, and that it felt weird. N.L. also reported that, several
times after people had left a room at Appellant’s house and he was alone with her,
he would touch her butt on top of her clothes. N.L. said that she felt bad about
herself because of these instances; that she suffers from depression, weight loss,
sleep loss, and nightmares; and that she has cut herself.
E.L. testified that she was eleven years old, had just finished the fifth grade,
and was about to go into sixth grade at the time of trial. E.L. testified that
Appellant had touched her on more than one occasion. E.L. said the first time was
when he asked her if she wanted a massage and he took her and her sister, O.L., to
his bedroom. E.L. said he touched her privates over her clothes in the bedroom
while she was lying facedown on the bed. E.L. said that, during the first incident,
Appellant asked her if she “liked it” when he touched her privates and that she said
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“no.” E.L. said she was scared when Appellant asked her if she liked him touching
her during this first incident.
E.L. said the second instance of abuse occurred when Appellant took her to
the guest room with her sister, O.L., and a cousin, Julie, and he flipped her over his
shoulder and onto the bed. E.L. said Appellant touched her butt on the outside of
her clothes when he flipped her over his shoulder. E.L. reported that Appellant
told her not to tell anyone about the incidents of touching in the bedrooms.
O.L. stated she was present when this second incident occurred and testified
Appellant had touched E.L.’s butt in the guest room. O.L. testified that Appellant
flipped her and played with her, that it was fine, that she had a good time, and that
it was not scary. She testified that he played with the other grandchildren too.
O.L. said she was not afraid, so she had not told her mother or grandmother about
playing with Appellant.
E.L. testified that the third incident occurred when Appellant was in the
garage and he asked to fix her belt; he then put his hand underneath her clothes and
underwear and touched her butt. Her father, R.L., saw part of the incident and
confronted Appellant. R.L. testified about the incident that occurred in the garage 3
when Appellant touched E.L. on the butt. According to R.L., he asked, “[W]hat
are you doing?” and Appellant claimed he was fixing E.L.’s belt. Then R.L. said,
“[N]o, you weren’t.” R.L. said Appellant looked scared. R.B., Appellant’s ex-
wife, remembered that R.L. was upset about an incident in the garage and that R.L.
and his wife took the children home, but R.B. did not see the incident. R.L.
admitted he had a conviction for criminal mischief and two prior DWIs.
C.M. testified her daughters were playing “mommy and daddy” with another
girl from the neighborhood and were kissing each other, which C.M. thought was
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R.L. also testified that, while he was at Appellant’s house on another occasion, Appellant had
shown him pornographic magazines while they were in the garage and that it made R.L. uncomfortable.
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inappropriate; C.M. then asked her daughters if anyone had touched them
inappropriately. E.L. and N.L. told her that Appellant had touched them. E.L.
recounted that the first time she spoke to anyone about the abuse by Appellant was
after her mother had seen her and her sisters and a friend playing a “mommy and
daddy” game.
C.M. testified that the first incident N.L. described occurred at Christmas in
2007 when Appellant pulled N.L.’s pants and underwear down while she was on
the bed and under the blankets in Appellant’s bedroom. C.M. said the second
incident described by N.L. occurred in the summer just before they went to a
movie, Shrek, when Appellant offered N.L. candy that was in his bedroom. N.L.
told C.M. that, once N.L. was in the bedroom, Appellant lay down on the bed; put
N.L. on top of him; and, while they were both clothed, moved his privates on her
privates. C.M. said the third incident N.L. recounted occurred when N.L. was in
the living room and was asked to sit on Appellant’s lap; when she did, Appellant
moved his private part against her private part through the clothes. C.M. also
described what E.L. had told her about Appellant’s inappropriate actions when he
touched her in his bedroom, the guest room, and the garage, all of which occurred
before E.L.’s outcry to C.M. in August 2008.
Shawndee Kennedy, Program Director for Harmony Home, testified about
the services that her organization provides to the community. Kennedy also
testified about “grooming” and how sexual predators groom young children by
befriending them, flattering them, spending time with them, and buying gifts for
them. Kennedy said that the predator then engages in accidental touches to the
child to desensitize the child before moving to inappropriate touching of the child’s
sexual organs. Kennedy also talked about “delayed outcry” by children and the
five phases that children go through. Kennedy admitted that she had not met or
interviewed the children in this case.
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Nicole McLean, a former forensic interviewer for Harmony Home, testified
that she interviewed E.L. McLean described what she heard from E.L. and what
she observed about E.L.’s behavior and mannerisms during the interview. McLean
remembered that E.L. cried during the interview and alternated between looking at
her and looking away and that E.L. initially giggled when McLean mentioned body
parts. McLean also interviewed N.L. the same day, and N.L. described the
incidents of abuse by Appellant.
Shelly Stanford, an investigator with the Odessa Police Department, testified
that the department had received a complaint from C.M. of sexual abuse of
children by Appellant. Investigator Stanford testified that the children were
interviewed at Harmony Home and that she reviewed the information gathered in
those interviews and interviewed Appellant, who, after being read his Miranda4
rights, waived them and agreed to talk to Investigator Stanford and provide her
with a statement. Investigator Stanford testified she also gathered information
from C.M.
Count Three alleged that Appellant, in December 2007, committed
aggravated sexual assault against N.L. when he penetrated N.L.’s sexual organ
with his finger. Counts Four, Six, and Ten alleged that, in June 2007 (Count Four)
and August 2007 (Counts Six and Ten), Appellant, with the intent to arouse or
gratify his sexual desire, committed indecency with a child, N.L., when he touched
her anus with his hand. Count Eleven alleged that Appellant, in August 2007, with
the intent to arouse or gratify his sexual desire, committed indecency with a child,
N.L., when he touched his sexual organ to her sexual organ over clothes.
Count Twelve alleged that Appellant, in June 2007, with the intent to arouse
or gratify his sexual desire, committed indecency with a child, E.L., when he
touched her sexual organ with his hand over her clothes. Count Fourteen alleged
4
Miranda v. Arizona, 384 U.S. 436 (1966).
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that Appellant, in August 2007, with the intent to arouse or gratify his sexual
desire, committed indecency with a child, E.L., when he touched her anus with his
hand over her clothes. Count Fifteen alleged that Appellant committed two or
more acts of sexual abuse—indecency with a child, namely N.L. and E.L.—when
he touched their anus or sexual organ with his hand, during a period of thirty days
or more, and did so with the intent to arouse or gratify his sexual desire.
III. Issues Presented
Appellant has asserted two sufficiency points of error. First, Appellant
complains that there was insufficient evidence to convict him as to E.L. and,
second, that there was insufficient evidence to convict him as to N.L.
IV. Standard of Review
We apply the sufficiency standard outlined in Jackson and its progeny for
both of Appellant’s sufficiency points. Jackson v. Virginia, 443 U.S. 307, 318
(1979); Brooks v. State, 323 S.W.3d 893, 894 (Tex. Crim. App. 2010); Hooper v.
State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). We review all of the evidence
introduced by both the State and Appellant in the light most favorable to the jury’s
verdict and decide whether any rational jury could have found each element of the
offense beyond a reasonable doubt. Jackson, 443 U.S. at 319.
V. Discussion and Analysis
The testimony of a child victim alone is sufficient to support a conviction for
sexual assault. See TEX. CODE CRIM. PROC. ANN. art. 38.07(a) (West Supp. 2013);
Villalon v. State, 791 S.W.2d 130, 134 (Tex. Crim. App. 1990) (concluding child
victim’s unsophisticated terminology alone established element of penetration
beyond a reasonable doubt). The trier of fact may believe all, some, or none of a
witness’s testimony because the factfinder is the sole judge of the weight and
credibility of the witnesses. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App.
1986); Isham v. State, 258 S.W.3d 244, 248 (Tex. App.—Eastland 2008, pet.
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ref’d). We defer to the trier of fact’s resolution of any conflicting inferences raised
in the evidence and presume that the trier of fact resolved such conflicts in favor of
the prosecution. Jackson, 443 U.S. at 318; Brooks, 323 S.W.3d at 894; Fuentes v.
State, 991 S.W.2d 267, 271 (Tex. Crim. App. 1999) (citing Turro v. State, 867
S.W.2d 43, 47 (Tex. Crim. App. 1993)).
A. Sufficiency of Evidence for Convictions as to E.L.
Appellant asserted in his first point of error that the evidence was
insufficient to convict him of the crimes alleged to have been committed by him
against E.L. and that there was insufficient proof of the required culpable mental
state. E.L. testified that Appellant had inappropriately touched her on three
separate occasions. E.L. testified that Appellant touched her private parts over her
clothes in Appellant’s bedroom and asked if she “liked it,” that he touched her butt
in the guest bedroom after he flipped her over his shoulder, and that Appellant
touched her butt inside of her underwear while they were in the garage. The jury
may convict on the testimony of the victim alone. See CRIM. PROC. art. 38.07(a);
Villalon, 791 S.W.2d at 134. In E.L.’s case, O.L. corroborated E.L.’s testimony
about the inappropriate touching of E.L. by Appellant in his guest bedroom, and
E.L.’s father, R.L., testified about what he saw in the garage. In addition, E.L.’s
mother testified about E.L.’s outcry, which can be sufficient for conviction. See
Rodriguez v. State, 819 S.W.2d 871, 873 (Tex. Crim. App. 1991).
Appellant complains that his intent to sexually arouse or gratify himself was
never proven, but intent can be inferred from words or deeds. “Mental culpability
is of such a nature that it generally must be inferred from the circumstances under
which a prohibited act or omission occurs.” Moore v. State, 969 S.W.2d 4, 10
(Tex. Crim. App. 1998) (quoting Hernandez v. State, 819 S.W.2d 806, 810 (Tex.
Crim. App. 1991)). “A defendant’s mental state ‘was concealed within his own
mind and can only be determined from his words, acts, and conduct.’” Id. (quoting
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Norwood v. State, 120 S.W.2d 806, 809 (Tex. Crim. App. 1938)). Appellant’s acts
of touching E.L. over and under her clothes and asking her if she “liked it” evinced
his intent to sexually arouse or gratify himself. C.M. described the time periods
when these instances of abuse occurred. We hold that a rational jury could have
found beyond a reasonable doubt that Appellant committed the crimes of
indecency with E.L. and continuous sexual abuse of E.L. We overrule Appellant’s
first point of error.
B. Sufficiency of Evidence for Convictions as to N.L.
Appellant asserts in his second point of error that there was insufficient
evidence to convict him of crimes against N.L. The jury may convict on the
testimony of the victim alone. See CRIM. PROC. art. 38.07(a); Villalon, 791 S.W.2d
at 134. N.L. said that Appellant had inappropriately touched her on several
occasions.
N.L. said the first incident of abuse occurred at Christmas in Appellant’s
bedroom when he pulled her pants and underwear down and touched her butt and
vagina. N.L. testified:
I was laying on my stomach and he was touching my butt. And his
hand went in a little bit to my anal part and he had slid his hand
through there to my butt and his hand went by my vagina, but it didn’t
go all the way in, but it was, it kind of went into my lips where -- I
guess that you would say.
N.L. said the second incident occurred just before they were going to go to
the movies when Appellant asked her if she wanted candy and she followed him
into his bedroom; Appellant, who was clothed, then lay down on the bed and put
N.L., who was also clothed, on top of him and facing him. N.L. testified that his
privates touched hers and that he moved his privates around. N.L. testified about a
third incident in the living room when they were watching television and Appellant
asked her to sit on his lap; she said that she felt his private parts move against her
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private parts and that it felt weird. N.L. also reported that, several times after
people had left a room at Appellant’s house and she and Appellant were alone,
Appellant touched her butt on top of her clothes. C.M. testified about when these
acts of abuse occurred.
Appellant again complains that his intent to sexually arouse or gratify
himself was never proven, but “[m]ental culpability is of such a nature that it
generally must be inferred from the circumstances under which a prohibited act or
omission occurs.” Moore, 969 S.W.2d at 10 (quoting Hernandez, 819 S.W.2d at
810). “A defendant’s mental state ‘was concealed within his own mind and can
only be determined from his words, acts, and conduct.’” Id. (quoting Norwood,
120 S.W.2d at 809). Appellant’s actions in the bedroom and living room incidents,
when he moved his private parts against N.L.’s private parts, demonstrated his
intent to arouse or gratify his sexual desire. We hold that a rational juror could
have found the evidence was sufficient to prove beyond a reasonable doubt that
Appellant committed the crimes of aggravated sexual assault of N.L., indecency
with N.L., and continuous sexual abuse of N.L. We overrule Appellant’s second
point of error.
VI. Conclusion
After reviewing the record, we hold that the evidence was sufficient to
convict Appellant of indecency with a child and continuous sexual abuse of a
child, namely E.L. We also hold that the evidence was sufficient to convict
Appellant of aggravated sexual assault of a child, indecency with a child, and
continuous sexual abuse of a child, namely N.L. We overrule both of Appellant’s
points of error on sufficiency of the evidence.
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VII. This Court’s Ruling
We affirm the judgment of the trial court.
MIKE WILLSON
JUSTICE
June 19, 2014
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.
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