Gerardo Corral, A/K/A Rodney Serna, A/K/A Alfred Hernandez v. State ( 2013 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-11-00053-CR
GERALDO CORRAL, A/K/A RODNEY SERNA,
A/K/A ALFRED HERNANDEZ, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 69th District Court
Sherman County, Texas
Trial Court No. 878, Honorable Ron Enns, Presiding
October 28, 2013
MEMORANDUM OPINION
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
Appellant Geraldo Corral a/k/a Rodney Serna a/k/a Alfred Hernandez appeals his
convictions and resulting sentences for aggravated sexual assault1 and indecency with
a child.2 Appellant was charged under a six-count indictment. Counts one through four
alleged he committed aggravated sexual assault of K.T., the daughter of his girlfriend
1
Tex. Penal Code Ann. § 22.021( (West Supp. 2013).
2
Tex. Penal Code Ann. § 21.11 (West 2011).
Gina Sanchez. Counts five and six alleged he committed indecency with a child toward
K.T. A jury found appellant guilty on counts one, four, five and six and not guilty on
counts two and three. The jury assessed punishment at eighteen years‟ confinement in
prison for counts one and four and five years‟ confinement for counts five and six. The
sentences run concurrently. Through three issues alleging insufficiency of the
evidence, improper jury communication by the trial court, and abuse of discretion for not
granting a mistrial, appellant appeals. We will affirm.
Background
K.T. was born in October 1998. Appellant and Sanchez, K.T.‟s mother, began a
dating relationship in 2004. They lived together at times.
In November 2004, appellant and Sanchez moved to Stratford, Texas.
Beginning in April 2005, K.T. lived with them in three different residences in Stratford.
One of the residences was a white house with red window frames3 on Poplar Street, in
which they lived from August 2005 through June 2006. K.T. referred to appellant as
“dad.” Others called him “Cholo.” In July 2006, the three moved to a house on South
Wall Street, where they were joined a few weeks later by Sanchez‟s teen-aged sons
“J.F.” and “T.”
The relationship between appellant and Sanchez was volatile. Appellant
described Sanchez as a “real jealous person.” He moved out more than once,
3
The house is depicted in a color photograph, State‟s exhibit 2.
2
sometimes on Sanchez‟s orders4 and other times on his own volition. One such
occasion occurred in July 2006, when, appellant testified, Sanchez ordered him out of
the house after K.T. told her appellant was “cheating on her” with K.T.‟s former
babysitter. Appellant said K.T. later admitted her story was a fabrication. Sanchez later
asked appellant to return to the home.
The couple‟s relationship worsened after her sons moved in. Appellant moved
out for the last time in August or September 2006. He testified he did so, “Because I
couldn‟t handle it no more, fight every day, you know, and all because of her kids
so . . . .” There also was evidence that appellant‟s moving out was related to Sanchez‟s
accusation he had an inappropriate relationship with a local sixteen-year-old female.
A Stratford police officer testified Sanchez called him in October 2006 to report
that K.T. had told her appellant had “touched” her.5 Sanchez told the officer she
believed some of K.T.‟s allegations but not all of them. When the officer visited with
K.T., the child said appellant had touched her “chichis” and rubbed her below her “belly
button.” She was interviewed by a counselor at the Bridge, a children‟s advocacy
center in Amarillo, giving her essentially the same report. Appellant was then arrested
and charged with indecency with a child. He was jailed on October 19 and remained in
jail until the time of trial.
Two months later, on December 13, 2006, Sanchez again contacted Stratford
police, and reported K.T. was experiencing vaginal bleeding and had a rash. According
4
Appellant testified, “[S]he kicks me out if I don‟t do what she says.”
5
Other testimony showed the officer was acquainted with the family because of
previous domestic disturbances.
3
to this report from Sanchez, appellant‟s conduct toward K.T. had been far worse than
initially reported. She said he had penetrated K.T.‟s vagina with his penis and fingers
and placed his penis in her mouth. K.T. was taken to Amarillo for an examination by a
sexual assault nurse examiner (SANE) and back to the Bridge for another interview.
During the SANE examination, K.T. told the examining nurse that she was penetrated
anally by appellant. K.T.‟s written history was in evidence and read to the jury by the
SANE nurse. It included allegations appellant penetrated the child‟s sexual organ,
mouth and “butt” with his penis, “put his mouth on my boobs,” and “made me put my
mouth on his private.” It also contained the statements, “Cholo did it last year when
school started, then he moved out then came back and started doing it again. He done
it a lot of times. He told me not to tell or he‟d kill my family. . . .”
In addition, the history included K.T.‟s allegation a neighbor once “touched my
private.”
The nurse examiner found no signs of trauma to the child‟s labia majora, labia
minora, or hymen. K.T. did not report bleeding and the nurse saw no indication of a
rash.
According to appellant, K.T. had previously fabricated another allegation against
him. On that occasion, he testified, she fell from her bicycle and sustained a large
bruise on her hip. At school, she reported the bruise was the result of a spanking by
appellant. He said Child Protective Services investigated the matter and took no further
action.
4
K.T. testified at trial. Asked if she ever had seen appellant‟s “private,” she told
the jury she did so in her “mom‟s room” at the “house with the red windows.” It looked
like a “stick” and emitted “gooey stuff.” She said on “many” other occasions at the
house with red windows, appellant touched her “boobs.” “Probably more than ten
times” at the house with red windows appellant “put his private in [K.T.‟s] private,” and
“gooey stuff” went into her private. This “hurt” K.T., who said she was age seven at the
time. “[F]our or five” times appellant “put his finger into [her] private.” On one occasion
this occurred at the house with red windows. Appellant twice “put his private in [her]
mouth.” This once occurred in her “mom‟s” room at the house on South Wall Street.
Three times appellant “put his private in [her] butt.” One of these acts took place at the
house on South Wall Street. K.T. told the jury appellant said he would “hurt” her mother
if she told anyone of these events.
K.T. also testified to the incident involving the neighbor. She said he “always”
gave her ice cream at his house. Once he touched her private. She said she reported
this to her teacher who responded, “„Oh, he‟s just playing.‟”
K.T. further testified to sexual contact by her brother J.F. Once when K.T. was
sick and in her mother‟s bed, and appellant and Sanchez were not at home, J.F. lay in
bed with K.T. and touched her private. J.F. once asked K.T. to “have sex.” She
declined but told a counselor at the Bridge they “kind of” had sex. She could not recall
at trial what she meant by “kind of.” Later at trial she agreed that J.F. put his penis in
her mouth, in her “butt,” they “had sex,” and “that he put his private on [her] private,”
causing pain that made her cry. She testified Cholo did more “things” to her than J.F.
5
A relative of appellant testified K.T. told her that one night while appellant and
Sanchez slept, J.F. and T. touched her and it hurt “a lot.”
Trial began on August 27, 2007, and the sentences were imposed on August 29,
2007. Appellant did not file a motion for new trial nor did he timely file a notice of
appeal. However, he was granted an out-of-time appeal through habeas corpus
proceedings in the Court of Criminal Appeals.6 After appeal to this court was perfected,
the case was twice abated and remanded to the trial court for determination of
questions relating to appellant‟s representation by counsel on appeal.7 On the second
remand, the trial court appointed appellant‟s present counsel.
Analysis
In his first issue, appellant argues the evidence was insufficient to support
conviction under counts one, four, five and six.
When deciding whether evidence is sufficient to support a conviction, we assess
all the evidence in the light most favorable to the verdict to determine whether any
rational trier of fact could find the essential elements of the crime beyond a reasonable
doubt. Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). In
applying the Jackson standard of review, “the relevant question is whether, after viewing
the evidence in the light most favorable to the prosecution, any rational trier of fact could
6
See Ex parte Corral, No. AP-76,459, 2010 Tex. Crim. App. Unpub. Lexis 694
(Tex.Crim.App. Nov. 24, 2010) (not designated for publication).
7
See Corral v. State, No. 07-11-00053-CR, 2011 Tex. App. Lexis 7598
(Tex.App.—Amarillo, Sept. 19, 2011) (per curiam order, not designated for publication);
Corral v. State, No. 07-11-00053-CR, 2012 Tex. App. Lexis 807 (Tex.App.—Amarillo,
Jan. 31, 2012) (per curiam order, not designated for publication).
6
have found the essential elements of the crime beyond a reasonable doubt.” Id. at 319
(emphasis in original). As the Court of Criminal Appeals has explained, the Jackson
standard accounts for the factfinder‟s duty “to resolve conflicts in the testimony, to weigh
the evidence, and to draw reasonable inferences from basic facts to ultimate facts.”
Clayton v. State, 235 S.W.3d 772, 778 (Tex.Crim.App. 2007) (quoting Jackson, 443
U.S. at 319). Therefore, when the evidence would support conflicting inferences, we
must presume that the factfinder resolved the conflicts in favor of the prosecution and
must defer to that determination. Clayton, 235 S.W.3d at 778 (citing Jackson, 443 U.S.
at 319. The deference we are required to give a jury‟s verdict is perhaps most acute
when it depends on the jury‟s evaluation of the credibility of witnesses and the weight to
be given their testimony. See Brooks v. State, 323 S.W.3d 893, 894 (Tex.Crim.App.
2010) (plurality op.) (under Jackson standard, reviewing court is required to defer to
jury‟s credibility and weight determinations).
The testimony of a child sexual abuse victim alone is sufficient to support a
conviction for indecency with a child or aggravated sexual assault. Soto v. State, 267
S.W.3d 327, 332 (Tex.App.—Corpus Christi 2008, no pet.). The 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) (en banc). The victim‟s description of what
happened need not be precise, and the child is not expected to communicate with the
same level of sophistication as an adult. Soto, 267 S.W.3d at 332. Corroboration of the
victim‟s testimony by medical or physical evidence is not required. Id. at 332; Ozuna v.
State, 199 S.W.3d 601, 606 (Tex.App.—Corpus Christi 2006, no pet.). See also Cantu
v. State, 366 S.W.3d 771, 775-776 (Tex.App.—Amarillo 2012, no pet.).
7
To convict appellant of aggravated sexual assault under the counts alleged in the
indictment, it was for the State to prove beyond a reasonable doubt that appellant
intentionally or knowingly caused the penetration of the anus or sexual organ of K.T.
(Counts I, II, and III); caused the penetration of the mouth of K.T. by the sexual organ of
appellant (Count IV); and K.T. was younger than 14 years of age. Tex. Penal Code
Ann. § 22.021(a)(1)(B)(i)(ii),(2)(B) (West Supp. 2013).
To convict appellant of indecency with a child under the counts alleged in the
indictment, the State was required to prove beyond a reasonable doubt that K.T. was a
child younger than seventeen years of age and not his spouse, of the same or opposite
sex, with whom he engaged in sexual contact (Count V) or with the intent to arouse or
gratify sexual desire exposed any part of his genitals, knowing K.T. was present (Count
VI). Tex. Penal Code Ann. § 21.11(a)(1) & (a)(2)(A) (West 2011). Under section 21.11
sexual contact includes touching, including touching through clothing, of any part of
K.T.‟s breast, if committed with the intent to arouse or gratify sexual desire. Tex. Penal
Code Ann. § 21.11(c)(1) (West 2011).
Testifying before the jury, appellant emphatically denied any improper sexual
contact with K.T. He acknowledged it might have been possible she saw him as he
arose from bed of a morning, but denied he ever intentionally exposed his genitals to
K.T. He testified he has been around children all his life and has never before been
accused of any sexual misconduct. He told the jury he believes the child was induced
by Sanchez to fabricate the stories and allegations after he left their relationship.
8
On appeal, appellant emphasizes the evidence of K.T.‟s prior fabrications. He
also points to the very significant differences in the story K.T. told the Bridge interviewer
in October, in which she mentioned only touching her “chichis” and her belly button
area, from that she told in December, of repeated vaginal, anal and oral penetration,
when appellant had been in jail since October. He points also to the questions raised
by the child‟s accusations that others have sexually assaulted her, questions concerning
potential fabrications and concerning the possibility that the sexual experiences she
testified to came from the actions of her brother rather than appellant. He notes the
sexual assault exam did not confirm Sanchez‟s report of vaginal bleeding or a rash.
Appellant also notes the evidence of Sanchez‟s jealous and accusatory nature.
Certainly there were conflicts in the evidence the jury heard, and conflicting
inferences rationally can be drawn from the evidence. K.T.‟s testimony contained
inconsistencies that reasonably can be seen as impeaching her credibility. But her
testimony before the jury was consistent with the information she gave the sexual
assault nurse examiner. She testified to actions of appellant that met the elements of
the counts on which he was convicted. She was thoroughly and effectively cross
examined. As was its role, the jury assessed the credibility and demeanor of the
witnesses. The jury was free to believe some, all, or none of the evidence supporting
appellant‟s innocence or guilt. Chambers v. State, 805 S.W.2d 459, 461 (Tex.Crim.App.
1991). This latitude also applied to the evidence of unlawful acts allegedly committed
against K.T. by others, as well as that of the jealousy of Sanchez and her intent to harm
appellant through fabricated allegations. Applying the Jackson standard, we conclude a
rational trier of fact could have found beyond a reasonable doubt each essential
9
element of each offense on which a conviction was returned. We overrule appellant‟s
first issue.
In his second issue, appellant complains that the trial court responded to a jury
question with a statement “which was not read to appellant in open court.”
The jury began its deliberations regarding guilt or innocence at 2:12 p.m. During
the afternoon the court received and addressed five jury notes. From comments by the
court, the jury was apparently provided an evening meal. The court granted the jury a
twenty-minute break at 6:30 p.m. At an unspecified time thereafter, the court received a
sixth jury note, marked as court‟s exhibit 6, which the court read on the record. The
note inquired:
Could you please let us have [K.T.‟s] testimony concerning the houses
with the red windows and the approximate times of the alleged abuse?
There is disagreement on the date(s) of alleged abuse in house w/ red
windows.
/s/ [jury foreman] (Underlining in original).
Below the request the court gave its handwritten response:
The testimony you have requested is so broad that it would require a
reading of nearly all of the witnesses‟ testimony. Unless you can be much
more specific in your request, the Court cannot provide this testimony.
/s/ [district judge presiding] (Underlining in original).
In regard to above (white house with red windows)[.]
In the presence of the prosecutor and counsel for appellant, the court read the
portion of its response that preceded its signature. Neither expressed objection. The
court did not, however, read orally the final sentence of its response, “In regard to above
10
(white house with red windows).” As for whether the court otherwise submitted the
written question and its response, including the final sentence, to appellant or his
counsel before delivery to the jury, the record is silent.8
In responding to a request from the jury, article 36.27 of the Code of Criminal
Procedure requires the court to “first submit the question and also submit his answer to
the same to the defendant or his counsel or objections and exceptions, in the same
manner as any other written instructions are submitted to such counsel, before the court
gives such answer to the jury . . . .”9 Before the charge is read to the jury “the
defendant or his counsel shall have a reasonable time to examine the same . . . .” Tex.
Code Crim. Proc. Ann. art. 36.14 (West 2007).
8
On receipt of the jury‟s first question, the court proposed a response and asked
if the State or appellant objected. Counsel for appellant responded, “Judge, I want the
Court to note that I have shown [appellant] the jury‟s question . . . and I‟ve also shown
him the Court‟s proposed response.” The record does not indicate this procedure was
followed in conjunction with the later jury notes, but the record also does not indicate the
court failed to submit the questions and responses to appellant or his counsel before
tendering them to the jury.
9
Article 36.27 provides:
The court shall answer any such communication in writing, and before
giving such answer to the jury shall use reasonable diligence to secure the
presence of the defendant and his counsel, and shall first submit the
question and also submit his answer to the same to the defendant or his
counsel or objections and exceptions, in the same manner as any other
written instructions are submitted to such counsel, before the court gives
such answer to the jury, but if he is unable to secure the presence of the
defendant and his counsel, then he shall proceed to answer the same as
he deems proper. The written instruction or answer to the communication
shall be read in open court unless expressly waived by the defendant.
Tex. Code Crim. Proc. Ann. art. 36.27 (West 2006).
11
In support of his contention the court‟s apparent failure to comply with the
requirements of article 36.27 requires reversal, appellant cites case law holding that a
trial court‟s substantive responses to jury questions during deliberations essentially
amount to additional or supplemental jury instructions. See Villareal v. State, 205
S.W.3d 103 (Tex.App.—Texarkana, 2006, pet. dismissed, untimely filed) (so stating,
citing Daniell v. State, 848 S.W.2d 145, 147 (Tex.Crim.App. 1993)). He contends the
last sentence of the court‟s response to the jury‟s sixth note was such an additional
instruction. We disagree.
The court‟s response to the jury‟s sixth note told the jury the court could not
provide the testimony jurors requested unless the request was made more specific.
The response was akin to those discussed in Allaben v. State, 418 S.W.2d 517, 520-21
(Tex.Crim.App. 1967), in which the court simply refuses to answer the jury‟s request for
further instruction. Such a response is not a substantive response, and does not
constitute additional instruction to the jury. Id. at 520; see Daniell, 848 S.W.2d. at 147
(citing Allaben, 418 S.W.3d at 520). The court‟s addition of the last sentence, “In regard
to above (white house with red windows),” did not convert the court‟s non-substantive
response to one of substance.
Where a communication between the jury and the trial court does not amount to
an additional instruction, the court‟s failure to comply with article 36.27 does not
constitute reversible error. McFarland v. State, 928 S.W.2d 482, 517-18 (Tex.Crim.App.
1996); Dooley v. State, 65 S.W.3d 840, 842 (Tex.App.—Dallas 2002, pet. refused).
That is the case here.
12
Nor can we agree with appellant‟s further contention the court‟s addition of the
last sentence to its response constituted a comment on the weight of the evidence. A
trial court‟s comment on the weight of the evidence is improper if it implies approval of
the State‟s argument, indicates any disbelief in the defense position, or diminishes the
credibility of the defense‟s approach to the case. Clark v. State, 878 S.W.2d 224, 226
(Tex.App.—Dallas 1994, no pet.). Whether such a comment constitutes harmful error
depends on its materiality, that is, whether the same issue was before the jury. Id.
Here, there is no evidence of more than one white house, nor is there evidence of more
than one house with red windows. And from the photograph in evidence it appears
undisputed the white house on Poplar Street had red window frames. We see no
indication from the record of dispute over the color of the windows at the white house,
nor of dispute over which house K.T. was referring to when she testified some events
occurred in the house with red windows. We thus see no risk that the court‟s written
statement connecting the red windows with the white house would have been seen by a
juror as supporting any position the State was taking or casting doubt on any argument
appellant had presented.
For all these reasons, we overrule appellant‟s second issue.
By his third issue, appellant contends the trial court abused its discretion by three
times failing to grant a mistrial on receipt of a communication from the jury.
In a note marked as court‟s exhibit 7, the jury informed the court that as of 9:00
p.m. jurors were divided on each of the six counts. The court responded, “Please
continue your deliberations.” Counsel for defendant moved for a mistrial on the ground,
13
“they‟re trying to tell the Court that they‟re deadlocked on a decision.” In denying the
motion, the court noted the time was 9:10 p.m., some seven and one-half hours into
deliberation.
Later, the jury submitted another note which the court marked as court‟s exhibit
8. It sought clarification regarding K.T.‟s testimony supporting the charge in count 1.
The court responded that the request must be made more clear. Appellant moved for a
mistrial arguing the jury‟s note further indicated it was deadlocked. The court denied the
motion.
By its note marked as court‟s exhibit 9, the jury clarified the division among jurors
regarding a portion of K.T.‟s testimony. The court proposed to have the reporter read a
brief excerpt of K.T.‟s testimony to the jury. In the colloquy that followed, counsel for
appellant again moved for a mistrial on the ground the jury was deadlocked. The court
overruled the motion and the jury returned to open court to hear the designated excerpt.
Thereafter, the jury reached a verdict, and at 10:22 p.m. court convened for its reading.
A trial court may discharge the jury in its discretion if the jury “has been kept
together for such time as to render it altogether improbable that it can agree.” Tex.
Code Crim. Proc. Ann. art. 36.31 (West 2006). Thus an express time limit is not
imposed on a jury for its deliberations. Guidry v. State, 9 S.W.3d 133, 155
(Tex.Crim.App. 1999). “The trial court is not bound to declare mistrial at the first sign of
jury impasse.” Howard v. State, 941 S.W.2d 102, 121 (Tex.Crim.App. 1996) (en banc).
Reversal is not mandated unless the record establishes the trial court abused its
discretion in holding the jury for deliberations. Montoya v. State, 810 S.W.2d 160, 166
14
(Tex.Crim.App. 1989) (en banc). Whether the trial court abused its discretion is
assessed by the amount of time the jury deliberated considered in light of the nature of
the case and the evidence. Ex parte Templin, 945 S.W.2d 254, 256 (Tex.App.—San
Antonio 1997, pet. refused) (per curiam) (citing Patterson v. State, 598 S.W.2d 265, 268
(Tex.Crim.App. [Panel Op.] 1980); cf. Jackson v. State, 17 S.W.3d 664, 676
(Tex.Crim.App. 2000) (considering length of trial and volume of evidence for abuse of
discretion determination).
Appellant was charged with six serious felonies alleging sexual misconduct with
a child. By the child‟s testimony, the offenses alleged occurred at different locations,
some identified by the exterior color of a structure. Only following its 9:00 p.m. vote did
the jury indicate it had not reached a unanimous vote on each count. By that time,
deliberations had been underway about seven hours, but during the period the jury had
a meal and received a twenty-minute break. Nothing here suggests at the time of the
9:00 p.m. vote, or any time over the following hour and twenty-two minutes, it was
improbable the jury would reach a unanimous verdict. Indeed, court‟s exhibit 7 can be
seen as no more than a report on the progress of deliberations. And the remaining jury
communications appellant questions here did not contain an express statement of
perceived incurable deadlock. We conclude the trial court did not abuse its discretion
by overruling appellant‟s three motions for mistrial, and we overrule appellant‟s third
issue.
15
Conclusion
Having overruled each of appellant‟s issues, we affirm the judgment of the trial
court.
James T. Campbell
Justice
Do not publish.
16