Pedro Rodriguez v. State ( 2012 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-11-00809-CR
Pedro RODRIGUEZ,
Appellant
v.
The STATE of Texas,
Appellee
From the 25th Judicial District Court, Guadalupe County, Texas
Trial Court No. 11-2093-CR
Honorable Gary L. Steel, Judge Presiding
Opinion by: Steven C. Hilbig, Justice
Sitting: Phylis J. Speedlin, Justice
Rebecca Simmons, Justice
Steven C. Hilbig, Justice
Delivered and Filed: November 30, 2012
AFFIRMED IN PART, VACATED IN PART, AND REVERSED AND RENDERED IN PART
Pedro Rodriguez appeals his convictions on multiple counts of sexual assault of a child
and indecency with a child, arguing insufficiency of the evidence and that the indecency
convictions violate the prohibition against double jeopardy.
04-11-00809-CR
BACKGROUND
Rodriguez was charged with repeatedly molesting his fifteen-year-old daughter, P.R.
Counts 1 through 23 of the indictment 1 charged Rodriguez with: five counts of sexual assault of
a child by penetration of the child’s sexual organ with Rodriguez’s sexual organ; five counts of
sexual assault of a child by penetration of the child’s sexual organ with Rodriguez’s fingers; and
thirteen counts of indecency with a child, each count alleging Rodriguez touched the child’s
genitals with his hand or fingers. The offenses were alleged to have been committed on sixteen
different dates between February 1, 2009 and April 1, 2010. The State further alleged Rodriguez
committed two prior felonies and sought to punish him as a habitual offender.
The jury found Rodriguez guilty of the ten counts of sexual assault and found him guilty
of twelve counts of indecency with a child. The jury found him not guilty on one of the counts
of indecency with P.R. The trial court assessed punishment at life in prison on each of the sexual
assault counts, to run consecutively, and assessed twenty-five year terms of imprisonment on
each of the indecency counts, to run concurrently with the life sentences.
SUFFICIENCY OF THE EVIDENCE
Rodriguez argues the evidence is insufficient to support conviction for all twenty-two
offenses. He contends is the evidence is insufficiently detailed to support the verdicts on all ten
sexual assault counts and that there is not evidence of twelve separate instances of contact to
support the convictions for indecency with a child.
Standard of Review
In a sufficiency review, we look at all of 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
1
Counts 24 and 25 of the indictment charged Rodriguez with indecency with and attempted aggravated sexual
assault of a different child. The trial court granted a directed verdict of not guilty on the indecency count, and the
jury found Rodriguez not guilty of the attempted aggravated sexual assault.
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the offense beyond a reasonable doubt.” Prible v. State, 175 S.W.3d 724, 729S30 (Tex. Crim.
App.), cert. denied, 546 U.S. 962 (2005). “We resolve [any] inconsistencies in the testimony in
favor of the verdict.” Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000). We defer to
the jury’s determination of the weight to be given to contradictory testimonial evidence because
resolution of the conflict is often determined by the jurors’ evaluation of the witnesses’
credibility and demeanor. Johnson v. State, 23 S.W.3d 1, 9 (Tex. Crim. App. 2000).
The evidence
The evidence of the assaults included P.R.’s testimony at trial and a videotape of an
interview conducted of P.R. by a worker from the Child Advocacy Center. P.R. testified she
lived with her family, including her father, Rodriguez, in 2009 when she was fifteen. She
testified Rodriguez first touched her inappropriately when they were living in an apartment in
Schertz. Rodriguez put his hand up under her shirt and rubbed her stomach, and this made her
uncomfortable. The family moved to Seguin, and after living there about a month, Rodriguez
began touching her chest and bottom over her clothes. P.R. testified Rodriguez subsequently
began having sex with her and assaulted her on multiple occasions between February 2009 and
April 2010.
P.R. testified that Rodriguez sometimes “had sex” with her, which she stated was when
Rodriguez put his penis inside her vagina. She testified at trial that the first time her father “had
sex” with her was in her brother’s bedroom at the house in Seguin. The second time it happened
was in her bedroom. P.R. also described an occasion when her mother was in the shower and her
siblings were outside, and Rodriguez took her to her brother’s room. P.R. testified Rodriguez
put her on the bed, took off her pants and underwear, and “had sex” with her. P.R. testified
Rodriguez “had sex” with her “more than six or seven times,” and later testified it happened at
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least once a month between February 2009 and April 2010. In the videotaped interview, P.R.
stated Rodriguez “had sex” with her four times — the first time in her bedroom, the second time
in her brother’s room, the third time on her sister’s bed, and the fourth time on the couch in the
living room.
The prosecutor asked P.R. whether Rodriguez had ever touched her genitals with his
hands or fingers and the following exchange occurred:
Q. Okay. Now did he ever do anything else to you like with his hands,
fingers or anything?
A. Yes, with his hands and fingers.
Q. Okay. What did he do, if anything?
A. He fingered me.
Q. Okay. What does that mean? And I know this is hard, but what does that
mean when you say he fingered you?
A. He put his two fingers in my vagina.
...
Q. Okay. Now did his finger actually go inside your vagina?
A. Yes, sir.
Q. Okay. And did he also touch it on the outside?
A. Yes.
P.R. testified that Rodriguez “fingered” her six or seven times over the period of February 2009
to April 2010. She testified that when Rodriguez would assault her, sometimes he would “have
sex” with her, sometimes he would “finger” her, and sometimes he would do both. P.R. testified
the abuse stopped in April of 2010, when she told her mother and the police were called.
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Discussion – ten counts of sexual assault
Rodriguez argues the evidence contains insufficient factual detail to support the
convictions on all ten sexual assault charges. He contends the lack of evidence regarding dates,
times, circumstances, or descriptions of discrete separate incidents renders the evidence
insufficient to support the sexual assault convictions.
Rodriguez relies on McEntire v. State, 265 S.W.3d 721 (Tex. App.—Texarkana 2008, no
pet.), arguing it is factually similar to this case. In McEntire, four of the counts alleged that on
four different dates the defendant caused the child’s sexual organ to contact his mouth. 265
S.W.3d at 724. A witness testified he saw McEntire lick the child’s sexual organ on one
occasion. Id. at 724. The child testified the defendant had licked her on four occasions, but
neither the questions nor the answers indicated where on her body he licked her and it was not
apparent from the context. Id. The court affirmed the conviction on one of the counts, but
reversed the other three. The court held the child’s testimony was too general and there was no
evidence that McEntire contacted the child’s sexual organ with his mouth on four separate
occasions. Id. at 724–25.
In contrast, P.R. expressly testified about what she meant when she said Rodriguez “had
sex” with her. And she testified that Rodriguez “had sex” with her “monthly” and “more than
six or seven times” between February 2009 and April 2010. She also provided some detail about
where and how some of the assaults occurred. Likewise, P.R. described what she meant when
she testified Rodriguez “fingered” her, and testified that Rodriguez “fingered her” “six or seven
times” during that same time period. Unlike the complainant in McEntire, P.R. specifically
described the conduct that constituted sexual assault and testified that Rodriguez committed each
type of assault at least six or seven separate times during a particular time period. This testimony
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is sufficiently specific to support the convictions. See Klein v. State, 273 S.W.3d 297, 302–03
(Tex. Crim. App. 2008) (holding evidence appellant touched complainant’s sexual organ with his
fingers and with his tongue “most nights” or “many times” when complainant’s mother was at
dance class on Monday nights during a six to eight week period of time is “specific evidence of
separate” sexual assaults that occurred “on at least four separate occasions,” and rational jury
could find four separate sexual assaults occurred); see also Ex parte Pruitt, 233 S.W.3d 338,
340–41 (Tex. Crim. App. 2007) (holding complainant’s testimony that defendant penetrated her
sexual organ with his penis “at least once a month” between first incident of penetration in
summer of 1998 and the last incident of penetration in August or September of 2000 sufficiently
described each incident of penetration during this period of time for double jeopardy purposes).
A reasonable jury could have found that Rodriguez committed sexual assault by
penetrating P.R.’s sexual organ with his sexual organ on five separate occasions, and committed
sexual assault by penetrating P.R.s’ sexual organ with his fingers on five separate occasions.
Any conflict between P.R.’s trial testimony and her videotaped statements were for the jury to
resolve, and we do not reevaluate the weight or credibility of the evidence. Jackson v. Virginia,
443 U.S. 307, 326 (1979).
Discussion – twelve counts of indecency by contact
Rodriguez was convicted of twelve counts of indecency with a child by touching P.R.’s
genitals with his hand or fingers. Rodriguez contends there is no evidence of any contact
separate from digital penetration and that the evidence of digital penetration does not support
twelve separate convictions. We agree in part.
The only evidence in the record of contact between Rodriguez’s hand or fingers and
P.R.’s genitals is P.R.’s testimony that Rodriguez “fingered” her six or seven times and P.R.’s
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affirmative answer to the prosecutor’s question “And did he also touch [your vagina] on the
outside?”. Rodriguez contends this answer is simply further description of the digital
penetration; whereas, the State asserts it is evidence of separate incidents of contact. Viewing
the evidence in the light most favorable to the jury’s verdict, we hold a rational jury could have
found this testimony referred to a discrete incident of indecency by contact, separate from the six
or seven times Rodriguez’s fingers touched P.R.’s genitals when he “fingered” her. However,
there is nothing in the record that would support an inference that the testimony Rodriguez
touched P.R. “on the outside” referred to more than one incident. The State generally asserts the
evidence is legally sufficient to support each of the twelve separate convictions for indecency
with a child by contact, but does not point to any evidence beyond that discussed above. We
therefore hold there is sufficient evidence to support the verdicts on eight counts of indecency
with a child (seven instances of “fingering” and one instance of touching P.R.’s vagina on the
“outside”). We hold there is insufficient evidence to support the verdicts on four of the
indecency counts.
DOUBLE JEOPARDY
Rodriguez argues the remaining eight counts of indecency by contact are barred by
double jeopardy because they are subsumed in the sexual assault offenses and he is being
punished twice for the same offense.
The State contends we should not consider Rodriguez’s double jeopardy argument
because he failed to raise it in the trial court. At trial, Rodriguez moved to require the State to
elect between one of the indecency counts and one of the sexual assault counts, arguing that one
is a lesser-included offense of the other. The court denied the motion, and Rodriguez did not
otherwise raise double jeopardy in the trial court. However, a double jeopardy claim may be
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raised for the first time on appeal when the “undisputed facts show the double jeopardy violation
is clearly apparent on the face of the record and when enforcement of usual rules of procedural
default serves no legitimate state interests.” Gonzalez v. State, 8 S.W.3d 640, 643 (Tex. Crim.
App. 2000). Here, the claimed double jeopardy violations are apparent on the face of the record.
See Saldana, 287 S.W.3d at 56–57; Belt v. State, 227 S.W.3d at 339, 345 Tex. Crim. App.—
Texarkana 2007, no pet.). Moreover, enforcement of the usual procedural default rules would
not serve any legitimate state purpose in this case. If we hold double jeopardy violations have
occurred, no retrial or remand would be required. Rather, we would reform the judgment to
delete the convictions and sentences that violate double jeopardy. See Saldana, 287 S.W.3d at
56S57; Saenz v. State, 131 S.W.3d 43, 50 (Tex. App.—San Antonio 2003), aff’d, 166 S.W.3d
270 (Tex. Crim. App. 2005). We will therefore review the record to determine whether
Rodriguez’s right against double jeopardy has been violated.
Sexual contact that occurs in the course of or incident to an act of sexual penetration is
subsumed in the completed act. Patterson v. State, 152 S.W.3d 88, 92 (Tex. Crim. App. 2004).
The double jeopardy clause of the Fifth Amendment bars prosecution for sexual contact that was
incidental to or subsumed within an alleged act of penetration for which the defendant had been
placed in jeopardy at previous trial. Ex parte Pruitt, 233 S.W.3d 338, 348 (Tex. Crim. App.
2007). The Double Jeopardy Clause also bars multiple punishments for the same offense.
Whalen v. U.S., 445 U.S. 684, 688S93 (1980); Evans v. State, 299 S.W.3d 138, 140S41 (2009)
(holding convictions and punishments for indecency with a child by contact and aggravated
sexual assault of child based on same conduct resulted in multiple punishments for same offense
in violation of double jeopardy clause).
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As discussed above, the State presented evidence of one instance of Rodriguez touching
P.R.’s genitals that was not part of a digital penetration. Each of the other seven offenses for
which there is evidence involved Rodriguez touching P.R.’s genitals with his hand or fingers in
the course of “fingering” her. As to the five of those occurrences that are the bases of the sexual
assault convictions, the offense of indecency by contact is subsumed by the greater offense of
sexual assault by digital penetration. The record demonstrates that five of the convictions and
sentences for indecency with a child by contact are based on the same offense as the five
convictions for sexual assault by digital penetration. Rodriguez was punished twice for those
offenses and the convictions therefore violate his right against double jeopardy. See Saldana v.
State, 287 S.W.3d 43 (Tex. App.—Corpus Christi 2008, pet. ref’d) (where evidence showed
defendant touched victim’s vagina with his finger and then penetrated it with his finger in same
course of action, convictions for aggravated sexual assault and indecency with child by contact
violated double jeopardy); Gonzalez Soto v. State, 267 S.W.3d 327, 343 (Tex. App.—Corpus
Christi 2008, no pet) (holding that “conviction and sentence for both the completed act of
penetration and for the sexual contact or exposure incident to the penetration constitutes double
jeopardy.”).
We therefore vacate five of the convictions for indecency with a child by contact. See
Ball v. United States, 470 U.S. 856, 864–65 (1985) (appropriate remedy for any double jeopardy
violation is to vacate one of the convictions); Ex parte Cavazos, 203 S.W.3d 333, 337 (Tex.
Crim. App. 2006) (when a defendant is convicted of two offenses that are the same for double
jeopardy purposes, the conviction for which the greatest sentence was assessed is retained and
the other conviction is set aside). Because Rodriguez received the same punishment for each of
the indecency with a child convictions, the sentences for each of the indecency convictions is
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identical, we uphold the convictions for the first charged offenses and vacate the latter. See
Cavazos, 203 S.W.3d at 399 n. 8; Flores v. State, 30 S.W.3d 29, 31S32 (Tex. App.—San
Antonio 2000, pet. ref’d).
CONCLUSION
We hold there is insufficient evidence to support Rodriguez’s convictions on four of the
counts of indecency with a child by contact. We therefore reverse the judgments of conviction
for indecency with a child by contact under Counts Fifteen, Nineteen, Twenty, and Twenty-one,
and render judgments of acquittal on those counts. We further hold that the convictions for
indecency with a child by contact under Counts Eight, Nine, Ten, Thirteen, and Fourteen violate
the Double Jeopardy Clause of the Fifth Amendment. We vacate the convictions on those counts
and reform the trial court’s judgment of conviction to so reflect. In all other respects, we affirm
the trial court’s judgment.
Steven C. Hilbig, Justice
DO NOT PUBLISH
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