Jorge Molinar Guerrero v. State ( 2013 )

NUMBER 13-12-00665-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
JORGE MOLINAR GUERRERO, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the Criminal District Court No. 1
of Tarrant County, Texas.
MEMORANDUM OPINION
Before Justices Rodriguez, Benavides, and Longoria
Memorandum Opinion by Justice Longoria
By four issues, appellant Jorge Guerrero challenges his convictions for one count
of aggravated sexual assault of a child under the age of fourteen (Count I) and two
counts of indecency with a child by contact (Counts II and III). See TEX. PENAL CODE
ANN. § 22.021(a)(1)(B)(i), (a)(2)(B) (West Supp. 2011), § 21.11(a)(1) (West 2011). We
affirm.
I. BACKGROUND1
The State indicted appellant for one count of sexual assault of a child under the
age of fourteen and two counts of indecency with a child by contact. See id.
§§ 22.021(a)(1)(B)(i), (a)(2)(B), 21.11(a)(1). Appellant pleaded not guilty, and the case
was tried to a jury.
S.A., the complainant in this case, went with her adult sister, N.R., to their
grandparents’ house to watch a soccer game in early December 2010.2 S.A. testified
that appellant, her grandfather, took her to a living room in the house where they sat
down on a couch together and appellant touched her “in a bad way.” S.A. testified that
appellant, who had been drinking, touched her breasts with his hands. Appellant then
instructed her to open her legs, reached under her clothing, and “put his finger inside”
S.A.’s “front private part.”3 S.A. also testified that appellant “got my hand and then he
made me squish” appellant’s penis over his clothes. When S.A. and N.R. were leaving
appellant’s house, S.A. made an outcry to N.R., who told S.A.’s parents.
N.R. testified that she drove S.A. and N.R.’s son to the family gathering. N.R.
testified that when they were driving away from the house, S.A. said that appellant “was
acting strange.” N.R. asked S.A. what she meant and S.A. told her that appellant had
1
This case is before this Court on transfer from the Second Court of Appeals in Fort Worth
pursuant to a docket-equalization order issued by the Supreme Court of Texas. See TEX. GOV’T CODE
ANN. § 73.001 (West 2005).
2
We refer to the complainant by her initials in order to protect her privacy.
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Testimony established that S.A. referred to her vagina as her “front private part.”
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“grabbed her breasts and her genital area” and kissed her with his tongue when they
were leaving.
Brenda Crawford, a forensic nurse at Cook’s Children’s Medical Center, testified
that she performed an examination of S.A. in which she asked specific questions about
what happened to her. Crawford testified that S.A. answered affirmatively to the
question about digital penetration of the vagina, and confirmed that S.A. meant that
appellant’s fingers had penetrated beyond the outer lips of the vagina. Crawford also
testified that S.A. stated that appellant touched her breasts over her clothes and made
her touch his penis over appellant’s clothes. Crawford also testified that S.A. told her
that appellant kissed her with his tongue when they were saying goodbye at the end of
the evening. Crawford testified that she did not find specific signs of abuse on S.A., but
that she “did not expect any findings based on what [S.A.] told me.” A fair amount of
time had passed since the assault allegedly took place, which could have contributed to
the lack of findings.
The jury returned a verdict of guilty on all counts. The jury assessed
imprisonment for life on Count I and terms of twenty years’ imprisonment on Counts II
and III. The court ordered the sentences to run concurrently. This appeal followed.
II. DISCUSSION
A. Sufficiency of the Evidence
Appellant argues that the evidence is legally insufficient to support his
convictions on all three counts of the indictment. Appellant numbers his sufficiency
challenges to each conviction as separate issues but addresses them as one, and we
will do the same.
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1. Standard of Review
In conducting a legal sufficiency review, we view all the evidence in a light most
favorable to the verdict and ask “whether any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” Garcia v. State, 367
S.W.3d 684, 686–87 (Tex. Crim. App. 2012) (citing Jackson v. Virginia, 443 U.S. 307,
319 (1979)). The trier of fact, in this case the jury, is the sole judge of the credibility of
witnesses and the weight, if any, to be given to their testimony. Id.; Brooks v. State, 323
S.W.3d 893, 899 (Tex. Crim. App. 2010) (plurality op). “The reviewing court must give
deference to the responsibility of the trier of fact to fairly resolve conflicts in testimony, to
weigh the evidence, and to draw reasonable inferences from basic facts to ultimate
facts.” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson, 443
U.S. at 318–19).
The State may prove the elements of an offense by either direct or circumstantial
evidence. Id. In a sufficiency review “circumstantial evidence is as probative as direct
evidence in establishing the guilt of an actor, and circumstantial evidence alone can be
sufficient to establish guilt.” Id. (citing Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim.
App. 2004)). If the record supports conflicting inferences, we presume that the fact
finder resolved the conflict in favor of the prosecution and defer to that resolution.
Garcia, 367 S.W.3d at 687; Brooks, 323 S.W.3d at 899; Connell v. State, 233 S.W.3d
460, 466 (Tex. App.—Fort Worth 2007, no pet.).
2. Applicable Law
We measure the sufficiency of the evidence supporting a conviction “by the
elements of the offense as defined by the hypothetically correct jury charge for the
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case,” applied to the particular facts of the case. Byrd v. State, 336 S.W.3d 242, 246
(Tex. Crim. App. 2011) (citing Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App.
1997)); see also Wheaton v. State, 129 S.W.3d 267, 271–72 (Tex. App.—Corpus Christi
2004, no pet.). “Such a charge would be one that accurately sets out the law, is
authorized by the indictment, does not unnecessarily increase the State's burden of
proof or unnecessarily restrict the State's theories of liability, and adequately describes
the particular offense for which the defendant was tried.” Malik, 953 S.W.2d at 240.
In Count I, the State alleged that appellant committed aggravated sexual assault
of a child by digitally penetrating S.A.’s vagina. See TEX. PENAL CODE ANN.
§ 22.021(a)(1)(B)(i), (a)(2)(B). The hypothetically correct jury charge for that offense
required the State to prove that appellant: (1) intentionally or knowingly; (2) caused the
penetration of S.A.’s sexual organ by his finger; (3) when S.A. was younger than
fourteen. See id.
The State alleged in Counts II and III that appellant committed the offense of
indecency with a child by contact by touching S.A.’s breasts and causing her to touch
his penis. See id. § 21.11(a)(1). A person commits that offense if he “engages in
sexual contact with the child.” Id. The statute defines “sexual contact” as “any touching
by a person, including touching through the clothing, of the anus, breast, or any part of
the genitals of a child” or “any touching of any part of the body of the child, including
touching through the clothing, with the anus, breast or any part of the genitals of a
person” that is done “with the intent to arouse or gratify the sexual desire of any
person.” Id. § 21.11(c). The hypothetically correct jury charge for both offenses
required the State to prove that appellant (1) with the intent to gratify his own sexual
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desire, (2) touched S.A.’s breasts (Count II), and caused S.A. to touch his penis over his
clothes (Count III). See id. § 21.11(a)(1), (c).
The testimony of a child complainant standing alone is sufficient to support a
conviction for both aggravated sexual assault of a child and indecency with a child.
TEX. CODE CRIM. PROC. ANN. art. 38.07(a) (West Supp. 2011). The child does not need
to testify to penetration, but “the testimony of a child victim alone is sufficient evidence
of penetration to support a conviction.” Ozuna v. State, 199 S.W.3d 601, 606 (Tex.
App.—Corpus Christi 2006, pet. ref’d).
3. Discussion
Appellant argues that S.A.’s testimony is so inconsistent that no reasonable
finder of fact could have credited it because S.A. told N.R. only that appellant “touched
her in her private part and grabbed on her breast,” and did not add that appellant
“kissed her in her mouth with his tongue” or digitally penetrated her vagina until S.A.
was questioned by Crawford at the hospital. Appellant does not explain why the fact
that S.A. more fully described the assault during Crawford’s interview, rather than to
N.R. during the initial outcry, affects whether a reasonable jury could credit S.A.’s
testimony at trial. Appellant also does not directly dispute that S.A. herself testified that
appellant digitally penetrated her vagina, touched her breasts, and forced her to touch
his penis over his clothes. As we have stated, the testimony of a child victim alone is
sufficient to support a conviction for both aggravated sexual assault and indecency with
a child by contact. See TEX. CODE CRIM. PROC. ANN. art. 38.07(a); see also Ozuna, 199
S.W.3d at 606 (observing that a child’s testimony as to penetration is sufficient to
support a conviction). Nonetheless, appellant points to the testimony of appellant’s
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grandson and Miguel Molina, a friend of appellant, which appellant contends contradicts
S.A.’s testimony. Both men testified that they were present at appellant’s house on the
day in question and did not observe any assault. Appellant’s grandson testified that he
could see both the living room where the family was watching the game and the couch
where appellant allegedly assaulted S.A., and did not observe anything unusual. Molina
also testified that he did not witness an assault. Appellant argues that this testimony,
combined with Crawford’s testimony that she found no specific physical indications of
assault when she examined S.A. at the hospital, contradicts S.A.’s testimony to the
extent that no reasonable jury could have accepted it. We disagree.
The State produced evidence in the form of S.A.’s testimony that established all
of the elements of the charged offenses. To the extent that the testimony of appellant’s
grandson, Molina, and Crawford contradicted S.A.’s testimony, it was the role of the jury
to resolve those contradictions and to decide which testimony to credit, and we defer to
that resolution here. Garcia, 367 S.W.3d at 687; Connell, 233 S.W.3d at 466. Because
the State produced testimony that appellant established all of the elements of the
charged offenses, we conclude that a reasonable jury could have found appellant guilty
beyond a reasonable doubt. See Garcia, 367 S.W.3d at 687; Connell, 233 S.W.3d at
466.
We overrule appellant’s first three issues.
B. Authority of Trial Judge
In his fourth issue, appellant argues that his convictions must be overturned
because the trial court judge was not authorized to preside over the proceeding. The
clerk’s record did not contain an order of appointment at the time appellant filed his
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brief. The State supplemented the clerk’s record with an order of appointment that
reflects Judge Woodlock, a retired district judge, was appointed by the presiding
administrative judge of the 8th Judicial District as a visiting judge to the court where
appellant was tried for a period of three days beginning September 18, 2012. See TEX.
GOV’T CODE ANN. § 74.056 (West 2005). Judge Woodlock was therefore authorized to
preside over appellant’s trial.
We overrule appellant’s fourth issue.
III. CONCLUSION
We affirm the judgments of the trial court.
_______________________
NORA L. LONGORIA
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
8th day of August, 2013.
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