Pedro Santiago Marin v. the State of Texas ( 2021 )


Menu:
  • AFFIRMED as MODIFIED and Opinion Filed October 11, 2021
    S   In The
    Court of Appeals
    Fifth District of Texas at Dallas
    No. 05-19-01160-CR
    PEDRO SANTIAGO MARIN, Appellant
    V.
    THE STATE OF TEXAS, Appellee
    On Appeal from the Criminal District Court No. 7
    Dallas County, Texas
    Trial Court Cause No. F-1952413-Y
    MEMORANDUM OPINION
    Before Justices Osborne, Reichek, and Smith
    Opinion by Justice Smith
    A jury convicted appellant Pedro Santiago Marin of intentionally and
    knowingly, during a period of thirty days or more in duration, committing two or
    more acts of sexual abuse against a child younger than fourteen years of age. The
    trial court sentenced Marin to thirty years’ confinement. Marin argues the evidence
    is legally insufficient to support his conviction because the State failed to prove that
    he committed two sexual acts of abuse during a period that was thirty days or more
    in duration. Marin and the State ask the Court to reform the judgment to reflect that
    the trial court, instead of the jury, assessed punishment. As modified, we affirm the
    trial court’s judgment.
    Sufficiency of the Evidence
    To avoid unnecessary repetition of facts, we do not include a separate
    background section, but instead include only those facts necessary to dispose of
    Marin’s sufficiency challenge. See TEX. R. APP. P. 47.1.
    On February 22, 2019, complainant’s mother walked into complainant’s room
    and saw Marin, who was in his boxer shorts, in bed with complainant with his hand
    under her shirt. Officer Mayra Balderas was dispatched to the home and after talking
    to complainant, Officer Balderas determined further investigation was necessary.
    Officers took complainant, who was nine-years-old, to the Children’s
    Advocacy Center where Jessica Parada conducted a forensic interview.              The
    interview lasted over an hour.
    Complainant indicated during the interview that the first instance of abuse was
    around September 2018 and continued until around November 2018. The first time
    Marin abused her, he said he wanted to play a game, but instead, he held her hands
    down and put his mouth on her vagina. She described a second time in which Marin
    woke her up in the middle of the night, removed her underwear, and put his penis
    “on the top of her vagina.” He also put his mouth on her vagina. She told Parada
    the last time “something happened with her private parts” was right before her
    birthday, which was November 30.
    Although complainant was unsure how many times Marin abused her, she
    testified during trial that he put his mouth on her vagina more than once. Parada also
    –2–
    testified during trial to the two incidents complainant described during her forensic
    interview.
    Marin argues the evidence if legally insufficient because the State failed to
    prove he committed two or more acts of sexual abuse during a period of thirty days
    or more. The State responds the evidence is legally sufficient.
    In reviewing the legal sufficiency of the evidence, we consider whether “any
    rational trier of fact could have found the essential elements of the crime beyond a
    reasonable doubt.” Jackson v. Virginia, 
    443 U.S. 307
    , 319 (1979). We review the
    evidence in the light most favorable to the verdict and defer to the trier of fact to
    resolve conflicts in testimony, to weigh the evidence, and to draw reasonable
    inferences from basic to ultimate facts. See Merritt v. State, 
    368 S.W.3d 516
    , 525
    (Tex. Crim. App. 2012); see also Isassi v. State, 
    330 S.W.3d 633
    , 638 (Tex. Crim.
    App. 2010). The testimony of a child victim alone is sufficient to support a
    conviction for continuous sexual abuse of a child. See TEX. CODE CRIM. PROC. ANN.
    art. 38.07(a); Garner v. State, 
    523 S.W.3d 266
    , 271 (Tex. App.—Dallas 2017, no
    pet.).
    A person commits the offense of continuous sexual abuse of a child under the
    age of fourteen if, during a period that is thirty or more days in duration, he commits
    two or more acts of sexual abuse and, at the time of the commission of each act, he
    is seventeen years of age or older and the victim is a child younger than fourteen
    years of age. See TEX. PENAL CODE ANN. § 21.02(b); Garner, 
    523 S.W.3d at 271
    .
    –3–
    Although the exact dates of the abuse need not be proven, the offense requires
    proof that two or more acts of sexual abuse occurred during a period of thirty days
    or more. See TEX. PENAL CODE ANN. § 21.02(d); Garner, 
    523 S.W.3d at 271
    . The
    statute does not require that the jury agree unanimously on the specific acts of sexual
    abuse the defendant committed or the exact dates when those acts were committed.
    See TEX. PENAL CODE ANN. § 21.02(d); see also Funes v. State, No. 05-18-01174-
    CR, 
    2020 WL 5651659
    , at *4 (Tex. App.—Dallas Sept. 23, 2020, no pet.) (mem.
    op., not designated for publication).
    Here, a jury could reasonably infer that one of the described incidents of
    sexual abuse occurred in September while the second described incident occurred in
    late November. Making this determination was within the sole discretion of the
    factfinder. See, e.g., Trinidad v. State, No. 07-19-00034-CR, 
    2020 WL 4249745
    , at
    *5 (Tex. App.—Amarillo July 20, 2020, no pet.) (mem. op., not designated for
    publication) (within factfinder’s role to resolve conflicts in evidence, weigh
    evidence, and draw reasonable inferences which included child’s testimony that was
    “very unsure, provided vague information and scant detail about specific instances
    of sexual abuse, and was unable to provide specific dates of alleged instances”).
    Viewing the evidence in the light most favorable to the verdict, we conclude a
    rational trier of fact could have found the essential elements of the offense of
    continuous sexual assault of a child beyond a reasonable doubt. See TEX. PENAL
    CODE ANN. § 21.02(d); Garner, 
    523 S.W.3d at 271
    .
    –4–
    In reaching this conclusion, we need not consider Marin’s assertion that the
    February 22, 2019 breast-touching incident was not an act of sexual abuse because
    his conviction is supported by two other instances of abuse. See TEX. R. APP. P.
    47.1. We overrule Marin’s first issue.
    Modification of Judgment
    In his second issue, Marin argues the judgment should be reformed to reflect
    that the trial court, not the jury, assessed punishment. The State agrees.
    We have the power to modify the trial court’s judgment when we have the
    necessary information to do so. See TEX. R. APP. P. 43.2(b); Bigley v. State, 
    865 S.W.2d 26
    , 27–28 (Tex. Crim. App. 1993); Asberry v. State, 
    813 S.W.2d 526
    , 529–
    30 (Tex. App.—Dallas 1991, pet. ref’d). Here, the record reflects that Marin elected
    for the judge to assess punishment. The trial court conducted the punishment hearing
    and stated the punishment on the record at the conclusion of the hearing.
    Accordingly, we sustain Marin’s second issue and modify the judgment to reflect
    that the trial court, not the jury, assessed punishment.
    –5–
    Conclusion
    As modified, we affirm the trial court’s judgment.
    /Craig Smith/
    CRAIG SMITH
    JUSTICE
    Do Not Publish
    TEX. R. APP. P. 47.2(b)
    191160F.U05
    –6–
    S
    Court of Appeals
    Fifth District of Texas at Dallas
    JUDGMENT
    PEDRO SANTIAGO MARIN,                        On Appeal from the Criminal District
    Appellant                                    Court No. 7, Dallas County, Texas
    Trial Court Cause No. F-1952413-Y.
    No. 05-19-01160-CR          V.               Opinion delivered by Justice Smith.
    Justices Osborne and Reichek
    THE STATE OF TEXAS, Appellee                 participating.
    Based on the Court’s opinion of this date, the judgment of the trial court is
    MODIFIED to reflect “Punishment Assessed by: Trial Court.”
    As REFORMED, the judgment is AFFIRMED.
    Judgment entered October 11, 2021
    –7–
    

Document Info

Docket Number: 05-19-01160-CR

Filed Date: 10/11/2021

Precedential Status: Precedential

Modified Date: 10/13/2021