Michael Torres Alvarez v. State ( 2003 )

NUMBER 13-02-320-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

___________________________________________________________________

MICHAEL TORRES ALVAREZ, Appellant,

v.

THE STATE OF TEXAS, Appellee.

___________________________________________________________________

On appeal from the 105th District Court of Kleberg County, Texas.

__________________________________________________________________

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Rodriguez and Castillo Opinion by Justice Rodriguez

  Appellant, Michael Torres Alvarez, brings this appeal following a conviction for one count of indecency with a child and three counts of aggravated sexual assault of a child. 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). By three points of error, appellant contends the evidence was legally insufficient to support the convictions: (1) for indecency with a child; (2) for aggravated sexual assault of a child; and (3) for aggravated sexual assault of a child on the date the act is alleged to have occurred. We affirm.

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 id. rule 47.4.II. Standard of Review

In reviewing the legal sufficiency of the evidence, we must consider the evidence presented in the light most favorable to the jury's verdict and determine whether any rational trier of fact could have found the elements of the offense present beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). Because the jury solely judges the weight and credibility of the evidence, we must review the evidence as already evaluated and resolve any inconsistencies in favor of the verdict. Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988).

III. Analysis

A. Indecency with a Child

By his first point of error, appellant contends there is legally insufficient evidence to support his conviction for indecency with a child. Appellant was convicted of indecency with a child because the jury found that appellant touched complainant's breasts and complainant was thirteen years of age at the time. The pertinent parts of section 21.11 of the Texas Penal Code provide that a person commits indecency with a child if that person engages in sexual contact with a child younger than seventeen years of age. Tex. Pen. Code Ann. § 21.11(a)(1) (Vernon 2003). The penal code defines sexual contact as the following acts, when committed with intent to arouse or gratify the sexual desire of any person:

(1) any touching by a person, including touching through clothing, of the anus, breast, or any part of the genitals of a child; or (2) any touching of any part of the body of a child including touching through clothing with the anus, breast, or any part of the genitals of a person.

Id. § 21.11(c).

Appellant asserts that: (1) no physical evidence existed that he touched complainant's breasts; (2) no other witness observed this specific act; and (3) complainant did not identify appellant as the actor. However, the jury is entitled to consider the evidence, weigh the credibility of the witnesses, and make reasonable inferences based upon what it believes. Nazemi v. State, 28 S.W.3d 806, 809-10 (Tex. App.-Corpus Christi 2000, no pet.) (citing Wolfe v. State, 917 S.W.2d 270, 275 (Tex. Crim. App. 1996)). The jury may apply common sense and general life experience when interpreting circumstantial evidence and drawing reasonable inferences. Booker v. State, 929 S.W.2d 57, 60 (Tex. App.-Beaumont 1996, pet. ref'd).

Testimony at trial by the Sexual Assault Nurse Examiner at Driscoll Children's Hospital showed that complainant reported appellant having touched her breasts with his hands and mouth. Testimony by appellant's companion, Lance Hajek, showed that he witnessed appellant and complainant unclothed in the back seat of the car with complainant seated on top of and facing appellant. Hajek also testified that he witnessed complainant performing an act of fellatio on appellant. Further, Hajek testified that he later witnessed appellant and complainant disrobing to shower together. Other testimony showed that complainant was thirteen years of age at the time these events occurred.

Viewing the evidence in the light most favorable to the verdict, a rational jury could have found beyond a reasonable doubt that appellant committed indecency with a child by touching complainant's breasts during any of the acts that occurred. See Jackson, 443 U.S. at 319. Appellant's first point of error is overruled.B. Aggravated Sexual Assault of a Child

By his second and third points of error, appellant contends there is legally insufficient evidence to support his conviction of aggravated sexual assault of a child. Appellant was convicted of aggravated sexual assault of a child because the jury found he engaged in sexual intercourse with the then-thirteen-year-old complainant on or about July 16, 2001, and again on or about July 17, 2001. Section 22.021 of the Texas Penal Code provides that a person commits aggravated sexual assault of a child if that person intentionally or knowingly causes the penetration of the anus or female sexual organ of a child by any means and the victim is younger than fourteen years of age. Tex. Pen. Code Ann. § 22.021(a)(1)(B)(i), (a)(2)(B) (Vernon Supp. 2004).

Testimony by Hajek showed that appellant engaged in what appeared to be sexual intercourse with complainant in the back seat of the car on July 16, 2001. This testimony was corroborated by physical evidence found during examination of complainant at the hospital shortly after appellant left her at the drug store. The examiner testified that she noted bruising consistent with sexual intercourse and found prostate specific antigen present in a vaginal swab. In addition, the paramedic who picked complainant up from the drug store on July 18, 2001 testified that complainant reported she had been sexually assaulted by at least three men on July 16, 2001 and again on July 17, 2001. However, Hajek testified that he left on July 16, 2001 and did not return. Further, there is conflicting evidence concerning an admission by complainant to Hajek's sister-in-law on the way to the drug store on July 18, 2001. During her testimony, the sister-in-law retracted her earlier sworn statement to investigators that complainant had admitted having sexual contact with appellant. Any inconsistencies in the testimony should be resolved in favor of the verdict. Moreno, 755 S.W.2d at 867.

Viewing the evidence in the light most favorable to the verdict, a rational jury could have found beyond a reasonable doubt that appellant sexually assaulted complainant based upon testimony by the paramedic and Hajek, as well as the examiner's findings. See Jackson, 443 U.S. at 319. Further, although Hajek was unable to testify as to any acts that may have occurred after he allegedly left appellant's home on July 16, 2001, the evidence showed that appellant and complainant remained together in appellant's home from July 16, 2001 until he left her at a drug store in Corpus Christi on July 18, 2001. See Ex parte Alexander, 685 S.W.2d 57, 59 (Tex. Crim. App. 1985) (supporting conviction for acts occurring within specific time period and without regard to exact date). Appellant's second and third points of error are overruled.IV. Conclusion

Accordingly, we affirm the judgment of the trial court.

NELDA V. RODRIGUEZ

Justice

Do not publish.

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

Opinion delivered and filed

this 13th day of November, 2003.