Jose Guadalupe Carmona v. State

Affirmed as Modified and Majority Opinion and Concurring and Dissenting
Opinion filed October 27, 2020.
In The
Fourteenth Court of Appeals
NO. 14-19-00268-CR
JOSE GUADALUPE CARMONA, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 338th District Court
Harris County, Texas
Trial Court Cause No. 1532290
MAJORITY OPINION
Convicted of indecency with a child by contact, appellant Jose Guadalupe
Carmona challenges the legal sufficiency of the evidence and asserts the trial court
erred in refusing to suppress a recorded statement. The State asserts that we should
modify the trial court’s judgment to delete findings that are contrary to the record.
We modify the judgment to delete these findings and affirm the judgment as
modified.
I. FACTUAL AND PROCEDURAL BACKGROUND
Appellant lived in the same apartment complex as the complainant, Moana,
Moana’s two older siblings, and Moana’s mother, Miriam.1 Appellant and Miriam
began dating, and after Miriam gave birth to the first of their two children,
appellant moved in with Miriam’s family. Miriam kicked appellant out of the
apartment sometime in 2012. According to Moana, Miriam took this action when
Moana told her mother that appellant had touched Moana’s buttocks.
In 2014, Moana, then about ten years old, told her older sister that appellant
had exposed himself to her and offered her money in exchange for her touching
appellant’s penis. The sister notified her mother and called the police. A forensic
investigator, Clara Rivers interviewed Moana. Due to a backlog at the police
department, the interview did not occur until 2016. At that time Moana reported
many instances of appellant’s indecent behavior. Although Moana did not give
exact dates as to when the conduct occurred, the complainant specified a time
frame, testifying that the incidents occurred between her second and third or fourth
grade years in school.
After the filing of a formal complaint, appellant was arrested. The next day,
appellant appeared before a magistrate, where he requested appointment of
counsel. On the following day, the court appointed counsel to represent appellant.
Five days after appointment of counsel and without contacting his counsel,
Houston Police Department Officers Himes and Arellano went to the Harris
County Jail to interview appellant. After generally denying most of the
allegations, appellant stated “I made a mistake” while insisting he “touched
complainant only one time.” Indicted and tried for the offense of “continuous
1
To protect the privacy of the complainant and other members of her family who testified at
trial, we use pseudonyms when referring to them in this opinion.
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sexual assault of a child,” a jury returned a verdict finding appellant guilty of the
lesser-included offense of indecency with a child by contact. The jury assessed his
punishment at fifteen years’ confinement.
II. SUFFICIENCY OF THE EVIDENCE
In his first issue, appellant challenges the sufficiency of evidence. In
evaluating this challenge, we view the evidence in the light most favorable to the
verdict. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). The
issue on appeal is not whether we believe the State’s evidence or believe that
appellant’s evidence outweighs the State’s evidence. Wicker v. State, 667 S.W.2d
137, 143 (Tex. Crim. App. 1984). We may not overturn the verdict unless it is
irrational or unsupported by proof beyond a reasonable doubt. Matson v. State,
819 S.W.2d 839, 846 (Tex. Crim. App. 1991). The trier of fact stands as the sole
judge of the credibility of the witnesses and of the strength of the evidence.
Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Crim. App. 1999). The trier of fact
may choose to believe or disbelieve any portion of the witnesses’ testimony.
Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). When faced with
conflicting evidence, we presume the trier of fact resolved conflicts in favor of the
prevailing party. Turro v. State, 867 S.W.2d 43, 47 (Tex. Crim. App. 1993).
Therefore, if any rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt, we must affirm. See McDuff v. State, 939
S.W.2d 607, 614 (Tex. Crim. App. 1997).
Legal Standards
The indictment alleged an offense of continuous sexual assault of a child. In
his brief, appellant asserts a legal-sufficiency challenge to a conviction for
continuous sexual assault of a child, an offense for which appellant was not
convicted. Though appellant stood trial for that offense, the jury did not return a
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“guilty” verdict on that charge. Appellant was convicted only of the lesser-
included offense indecency with a child by contact. Appellant’s main argument
under this issue is that the evidence at trial failed to specify any date or time frame
when the alleged acts occurred. We liberally construe appellant’s brief as
challenging the legal sufficiency of the evidence to support the indecency-with-a-
child-by-contact conviction, and we address appellant’s lack-of-specific-date-or-
time-frame argument in this context.
As is relevant to the challenged conviction, a person commits the offense of
indecency with a child by contact if the person intentionally or knowingly engages
in sexual contact with a child younger than 17 years of age or causes the child to
engage in sexual contact. See Tex. Penal Code Ann. § 21.11(a)(1). “Sexual
contact” includes the following acts, if committed with the intent to arouse or
gratify the sexual desire of any person: (1) a person’s “touching through clothing”
of any part of the genitals of a child, and (2) “any touching of any part of the body
of a child. . .with. . . any part of the genitals of a person.” See Tex. Penal Code
Ann. § 21.11(c).
In a sufficiency analysis the question “is not what evidence there isn’t, it’s
what evidence there is.” Acosta v. State, 429 S.W.3d 621, 630 (Tex. Crim. App.
2014). Circumstantial evidence alone can be sufficient to establish guilt. Id. at
625. In such cases, it is enough if the conclusion is warranted by the combined and
cumulative force of all the incriminating circumstances. Id. The jury may use
common sense and apply common knowledge, observation, and experience gained
in ordinary affairs when drawing inferences from the evidence. Id.
Evidence Supporting the Indecency-with-a-Child Conviction
At trial, Clara Rivers, the forensic evaluator, testified as an outcry witness
about what she learned when she conducted the forensic interview with Moana.
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Rivers testified that Moana gave “a chronological description of everything that
happened the way it happened, and she was very detailed.” According to Rivers,
Moana reported various instances, recounting how appellant would make Moana
touch his “private area” and explaining that appellant taught Moana how to do so.
Moana described to Rivers “masturbating [appellant] to the point of ejaculation.”
Moana told Rivers that appellant made her touch his private area ten to twelve
times. Rivers also testified that Moana complained that appellant would slap her
buttocks when Moana’s mother was not around. Rivers testified about another
incident Moana had reported in which appellant grabbed Moana as she watched
television and after telling the child to be quiet, rubbed her vagina over her clothes.
Moana’s testimony was consistent with the events Rivers described. Moana
testified that she thought the events began when she was in the second grade and
occurred until she was in the third or fourth grade. At trial the evidence showed
that Moana was born in 2004, that she was seven years old and in second grade in
2011, and she was about ten years old when she reported the incidents in 2014,
two years after Moana’s mother broke up with appellant and kicked appellant out
of the apartment. Moana testified that her Mother took this action when Moana
told Miriam that appellant had been touching her buttocks. Moana did not testify
at trial about the over-the-clothes touching of her vagina. Neither side asked
Moana any details about that incident. Moana testified that appellant “tried” to
touch her vagina but “she did not let him.” Moana testified that appellant first
made her touch his genitals when she was in second grade, and that it occurred
more than three times after that. Moana described several instances of this conduct,
occurring in different places, including a time where appellant ejaculated on her
hand and the floor.
Consistent with a trial under the continuous-sexual-abuse-of-a-child offense,
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the State put on proof of multiple instances of sexual contact between appellant
and Moana. Appellant did not request that the State elect an act upon which it was
relying for a conviction. The “on or about” language in an indictment allows the
State to prove a date other than the one alleged in the indictment “as long as the
date is anterior to the presentment of the indictment and within the statutory
limitation period.” See Sledge v. State, 953 S.W.2d 253, 255 (Tex. Crim. App.
1997). All of the acts of sexual contact described at trial occurred between 2011
and 2014. Appellant was not indicted until 2016, and there is no statute of
limitations for the offense. See Tex. Code Crim. Proc. Ann. art. 12.01(1). Thus,
the acts of sexual contact shown by the evidence at trial all occurred at a time that
would allow these acts to be used to prove appellant’s guilt. See Sledge, 953
S.W.2d at 256. The law recognizes the limitations of child witnesses and does not
expect them to recount events that occurred when they were children with the same
level of clarity and precision as adults. See Carr v. State, 477 S.W.3d 335, 340
(Tex. App.—Houston [14th Dist.] 2015, pet. ref’d). Moana’s inability at age 14 to
testify with more precision about the timing of events occurring when she was age
seven to ten is not surprising. The jury heard the evidence and the chronological
narratives Moana and the outcry witness provided.
Under the applicable standard of review, we conclude that a rational trier of
fact could have found beyond a reasonable doubt that appellant intentionally or
knowingly engaged in sexual contact with Moana, a child younger than 17 years of
age. See Tex. Penal Code Ann. § 21.11(a)(1); Phea v. State, 190 S.W.3d 232, 237
(Tex. App.—Houston [1st Dist.] 2006, pet. ref’d). Because the evidence is
sufficient to support appellant’s conviction based on the indecency-with-child
offense, we overrule appellant’s first issue.
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III. SUPPRESSION OF CUSTODIAL STATEMENT
In his second issue appellant asserts the trial court erred in denying his
motion to suppress appellant’s December 13, 2016 custodial statement (“Custodial
Statement”). Appellant argues the trial court should have suppressed the statement
because appellant’s Sixth Amendment right to counsel had attached and the court
had appointed counsel to represent appellant before the officers questioned him.
We review the trial court’s ruling on a motion to suppress for an abuse of
discretion. State v. Story, 445 S.W.3d 729, 732 (Tex. Crim. App. 2014). A trial
court’s ruling should be reversed only if it is arbitrary, unreasonable, or “outside
the zone of reasonable disagreement.” Id. In a motion-to-suppress hearing, the
trial court stands as the sole trier of fact and judge of the credibility of the
witnesses and the weight to be given their testimony. Lerma v. State, 543 S.W.3d
184, 190 (Tex. Crim. App. 2018). We afford almost complete deference to the trial
court in determining historical facts. Id. The trial court may believe or disbelieve
all or any part of a witness’s testimony, even if that testimony is not controverted,
because the trial court has the opportunity to observe the witness’s demeanor and
appearance. Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010).
Officer Arellano testified that she did not call appellant’s lawyer in advance
of the interview at the Harris County Jail, and that she believed that appellant did
not have a lawyer at that time. Officer Arellano testified that during the interview
she spoke to appellant in Spanish and advised him of his rights, including (1) his
right to have a lawyer present to advise him before and during any questioning, and
(2) his right to have a lawyer appointed to advise him before and during any
questioning if he was unable to employ a lawyer. A transcription of the audio
portion of the recording of this interview does not reflect a response from appellant
when Officer Arellano mentions these two rights, instead the transcription says,
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“Unintelligible: Overlapping Noise.” Officer Arrellano testified that this statement
in the transcription does not mean that appellant did not answer; rather, it means
that noise on the audio made that part of the audio unintelligible. Officer Arellano
testified that appellant answered “yes” to each of her questions about appellants’
rights and that she moved on to the next question only when appellant answered
“yes.” Contradicting Officer Arellano, appellant testified that he did not answer
whether he understood he had the right to have a lawyer present or whether he
understood that he had the right to an appointed attorney. Appellant testified that
he did not understand that he had the right to call his lawyer, and he testified that
he did not understand any of the rights Arellano read to him based on his lack of a
complete formal education, his lack of education about and experience with the
American judicial system, and his depression.
In its findings of facts and conclusions of law, the trial court accepted
Arellano’s version of the events, and rejected appellant’s testimony as not credible.
We are to afford significant deference to those findings. See Lerma, 543 S.W.3d at
190. Our review of the record does not compel us to disturb the trial court’s
factual findings.
Appellant cites Upton v. State for the proposition that, after the Sixth
Amendment right to counsel attaches and the accused is represented by counsel,
the police may initiate interrogation only through notice to defense counsel. See
853 S.W.2d 548, 553 (Tex. Crim. App. 1993). This part of Upton is no longer
good law after Montejo v. Louisiana, a case in which the Supreme Court of the
United States overruled the holding in Michigan v. Jackson, 475 U.S. 625, 636,
106 S. Ct. 1404, 89 L. Ed. 2d 631 (1986). See Montejo v. Louisiana, 556 U.S. 778,
792–96, 129 S. Ct. 2079, 2089–91, 173 L. Ed. 2d 955 (2009); Pecina v. State, 361
S.W.3d 68, 77–78 (Tex. Crim. App. App. 2012). This court has applied the
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Montejo principles under facts similar to those presented in today’s case. See
Williams v. State, 531 S.W.3d 902, 914–16 (Tex. App.—Houston [14th Dist.]
2017) (affirming denial of motion to suppress custodial statement where defendant
requested and was appointed counsel two days before police-initiated interrogation
without notification to and presence of defense counsel, defendant was informed of
his rights during interrogation, and he failed to request counsel when he had the
opportunity), aff’d, 585 S.W.3d 478 (Tex. Crim. App. 2019). We need not retread
this ground. Under the applicable standard of review, we conclude that the trial
court acted within its discretion in denying appellant’s motion to suppress. We
therefore overrule appellant’s second issue.
IV. MODIFICATION OF THE JUDGMENT
The State asserts that we should modify the trial court’s judgment to delete
the following findings that are contrary to the record:
APPEAL WAIVED. NO PERMISSION TO APPEAL GRANTED.
THE COURT FINDS THAT AT THE TIME OF THE OFFENSE,
DEFENDANT WAS YOUNGER THAN NINETEEN (19) YEARS
OF AGE AND THE VICTIM WAS AT LEAST THIRTEEN (13)
YEARS OF AGE. THE COURT FURTHER FINDS THAT THE
CONVICTION IS BASED SOLELY ON THE AGES OF
DEFENDANT AND THE VICTIM OR INTENDED VICTIM AT
THE TIME OF THE OFFENSE. TEX. CODE CRIM. PROC., ART.
42.017.
Appellant has not responded to the State’s argument on this point. We note that
the trial court’s certification of appellant’s right to appeal conflicts with the finding
in the judgment adjudicating guilt that appellant waived his right to appeal.
Nothing in the record shows that appellant waived his right to appeal. Moreover,
the State correctly points out that the evidence at trial established that the
complainant was born in 2004, she would have been seven years old in 2011, she
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was around ten years old when she made an outcry statement in 2014, and that
appellant was born in 1975 and would have been in his thirties between 2011 and
2014.
This court has the power to modify the judgment of the court below to make
the record speak the truth if the matter has been called to the court’s attention by
any source and if this court has the necessary information to do so. See Tex. R.
App. P. 43.2(b); French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992)
(adopting the reasoning from Asberry v. State, 813 S.W.2d 526, 529–30 (Tex.
App.—Dallas 1991, pet. ref’d) (en banc)); Asberry v. State, 813 S.W.2d 526, 529
(Tex. App.—Dallas 1991, pet. ref’d) (en banc). This court also has the power to
make any appropriate order that the law and the nature of the case require. See
Tex. R. App. P. 43.6; French, 830 S.W.2d at 609; Asberry, 813 S.W.2d at 529. If
a judgment and sentence improperly reflect the findings of the jury, it is proper for
this court to modify the judgment to reflect the truth. See French, 830 S.W.2d at
609; Asberry, 813 S.W.2d at 529. The authority of an appellate court to reform
incorrect judgments is not dependent upon the request of any party, nor does it turn
on the question of whether a party has or has not objected in the trial court. See
French, 830 S.W.2d at 609; Asberry, 813 S.W.2d at 529–30.
We conclude that the record shows that all of the above-quoted findings are
incorrect and that this court should modify the trial court’s judgment to delete the
above-quoted findings so that the record speaks the truth. See Tex. R. App. P.
43.2(b) (permitting the court of appeals to modify the trial court’s judgment);
French, 830 S.W.2d at 609; Guerrero v. State, 554 S.W.3d 268, 273 (Tex. App.—
Houston [14th Dist.] 2018, no pet.) (correcting improper recitation of appellate
waiver); Barfield v. State, 464 S.W.3d 67, 84 (Tex. App.—Houston [14th Dist.]
2015, pet. ref’d) (striking inaccurate recitation of the offense in the judgment). We
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modify the judgment by deleting these findings in their entirety.
V. CONCLUSION
Having concluded that the evidence is sufficient to support each of the
essential elements of appellant’s indecency-with-a-child-by-contact conviction,
and that the trial court did not err in denying appellant’s motion to suppress, and
having modified the judgment to delete the above-quoted findings in their entirety,
we affirm the judgment as modified.
/s/ Kem Thompson Frost
Chief Justice
Panel consists of Chief Justice Frost and Justices Jewell and Spain (Spain, J.,
concurring and dissenting).
Publish — TEX. R. APP. P. 47.2(b).
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