Jose M. Dominguez v. State ( 2018 )

Affirmed; Opinion Filed January 31, 2018.
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-16-01280-CR
No. 05-16-01281-CR
No. 05-16-01282-CR
JOSE M. DOMINGUEZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 292nd Judicial District Court
Dallas County, Texas
Trial Court Cause Nos. F15-31011-V, F15-31009-V & F15-30988-V
MEMORANDUM OPINION
Before Justices Francis, Evans, and Boatright
Opinion by Justice Evans
Jose M. Dominguez was charged by indictment with the offenses of continuous sexual
abuse of a child, aggravated sexual assault of a child, and indecency with a child. The jury found
appellant guilty of each offense, as alleged in the indictments, and assessed punishment at
ninety-nine years’ imprisonment in the aggravated sexual assault and continuous sexual abuse
cases, and twenty years’ imprisonment in the indecency with a child case. On appeal, appellant
challenges the sufficiency of the evidence to support the conviction for continuous sexual abuse
of a child contending that (1) the evidence shows that there were two periods of alleged abuse,
and (2) the evidence was insufficient to prove the predicate offense of indecency with a child
because it did not show that appellant acted with sexual intent. Appellant also contends that the
trial court erred in allowing the State to publish an un-translated foreign language document. We
affirm the trial court’s judgments.
BACKGROUND
ZG and LG are appellant’s granddaughters. ZG is the complainant in the continuous
sexual abuse case. LG is the complainant in the aggravated sexual assault and indecency with a
child cases. At the time of trial, ZG was fifteen and LG was thirteen.
ZG testified that one of the first things she remembered was appellant touching her when
she was seven years old. She specifically described a time when she was in her grandparents’
bedroom playing on the PlayStation with her siblings and appellant began rubbing his hand on
her leg in way that felt uncomfortable and inappropriate.1 A couple months later when ZG was
still seven years old, appellant made her perform oral sex on him. ZG testified that “maybe once
every two weeks” appellant would start rubbing ZG’s leg and slowly go up close to her vaginal
area until she would grab his hand and push it away.
ZG testified that when she was eight and nine years old, the touching was not as constant
but appellant would give her “passionate hugs” where he would caress her, putting his hand on
her lower back close to her buttocks. Appellant would also require her to kiss him on the lips, as
opposed to the usual family greeting of a kiss on the cheek. During the kiss, appellant would
force his tongue into ZG’s mouth.
ZG also testified about an incident that occurred when she was twelve years old.
Appellant was on one side of the hall and walked by ZG swinging his arms and he touched her
vaginal area with his hand. ZG did not believe the touching was accidental because she tried to
get out of his way by pushing herself against the wall.
1
ZG testified that his hand did not ever progress into something that he should not have done, but that “It just
didn’t feel right” because of the faces he would make “Like a little smirk.”
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ZG testified that when she was thirteen years old, she would go into the guest bedroom at
her grandparents’ house in order to be alone. Appellant would come into the bedroom and lay
next her, putting his head on top of her thigh near her vaginal area while caressing her legs. ZG
would kick her way into the corner of the bed to make appellant get off of her and leave the
room.
The earliest age ZG remembered bringing appellant’s conduct to her mother’s attention
was around nine. She began telling her cousin about it when she was a little younger, but her
cousin did not want to talk about it. ZG’s mother testified that ZG was seven when she first
made outcry about her grandfather’s sexual abuse. ZG was in the restroom and told her mother
that her private hurt. Her mother saw that the area was irritated and when she asked ZG what
happened, ZG told her that grandpa was touching her.
LG testified that she was seven years old when appellant started sexually abusing her. LG
testified that Appellant would constantly touch her breasts and vagina, at first over her clothes
and then under the clothes. LG described an incident when she was twelve years old where
appellant trapped her in a closet, bent her over, and pushed his penis into the lips of her vagina.
Appellant then forced LG to kiss his penis. After the assault was over, appellant told LG that he
was going have sex with her when she was fifteen.
LG also testified that there were several times when appellant would require LG to get on
top of him on the bed and rub herself against his penis. On other occasions, appellant would
grab her hand and force her to touch his penis, both over his clothes and under his clothes. Like
her sister, LG was also required to kiss appellant on the lips when she greeted him and as with
ZG, appellant would force his tongue into LG’s mouth. LG testified that she told both her
mother and her cousin about the abuse.
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ANALYSIS
I. Sufficiency of Evidence – Period of Abuse
In appellant’s first issue, he contends the evidence is insufficient to support the
conviction for continuous sexual abuse of ZG. The indictment alleged, in pertinent part:
That JOSE M DOMINGUEZ, hereinafter called Defendant, on or about
September 1, 2009, did then and there intentionally and knowingly, during a
period that was 30 or more days in duration, when the defendant was 17 years of
age or older, commit two or more acts of sexual abuse against [ZG], a child
younger than 14 years of age, hereinafter called complainant, namely by: by
contact between the mouth of the complainant and the sexual organ of the
Defendant AND by the contact between the hand of the Defendant and the
genitals of the complainant with the intent to arouse and gratify the sexual desire
of the appellant.
The first sexual act alleged in the indictment constitutes aggravated sexual assault under
TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(v), (a)(2)(B) (West Supp. 2017). The second sexual
act alleged constitutes indecency with a child under TEX. PENAL CODE ANN. § 21.11(a)(1), (c)(1)
(West Supp. 2017). The evidence at trial showed that appellant committed the aggravated sexual
assault against ZG in either 2008 or 2009 when she was seven years old and that he committed
the indecency offense in 2013 when she was twelve years old. Appellant contends that because
the two incidences of sexual abuse were separated in time by five years, they did not constitute a
single period of abuse as required under the continuous sexual abuse statute. We do not agree.
Section 21.02(b) of the Penal Code sets out the offense of continuous sexual abuse of a
child as follows:
(b) A person commits an offense if:
(1) during a period that is 30 or more days in duration, the person commits
two or more acts of sexual abuse, regardless of whether the acts of sexual abuse
are committed against one or more victims; and
(2) at the time of the commission of each of the acts of sexual abuse, the actor
is 17 years of age or older and the victim is a child younger than 14 years of age,
regardless of whether the actor knows the age of the victim at the time of the
offense.
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TEX. PENAL CODE ANN. § 21.02(b) (West Supp. 2017). Subsection (c) lists the offenses that may
be used as elements of an offense under subsection (b), and includes aggravated sexual assault
under Section 22.021 and indecency with a child under Section 21.11(a)(1), if the actor
committed the offense in a manner other than by touching, including touching through clothing,
the breast of a child. Id. §§ (c)(2), (4). Subsection (d) requires that the jury agree that at least
two sexual acts occurred during a period that is thirty or more days in duration even if the jury
lacks unanimity as to each of the particular sexual acts or their time of occurrence. Id. § (d).
In interpreting statutes, this Court must “seek to effectuate the ‘collective’ intent or
purpose of the legislators who enacted the legislation.” Price v. State, 434 S.W.3d 601, 605
(Tex. Crim. App. 2014). Toward that end, we must focus our “attention on the literal text of the
statute in question and attempt to discern the fair, objective meaning of that text at the time of its
enactment.” Byrant v. State, 391 S.W.3d 86, 92 (Tex. Crim. App. 2012) (quoting Boykin v.
State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991). We presume that the legislature intended
for the entire statutory scheme to be effective. Price, 434 S.W.3d at 605. When statutory
language is clear and unambiguous, we give effect to its plain meaning unless to do so would
lead to absurd consequences. Id. Ambiguity exists when the statutory language may be
understood by reasonably well-informed persons in two or more different senses; conversely, a
statute is unambiguous when it permits only one reasonable understanding. Id.
Having reviewed the plain language of Section 21.02(b), we conclude that it permits only
one reasonable interpretation of what constitutes the “period” during which the repeated acts of
sexual abuse must have occurred. The statute does not place any specific limitation on the
amount of time in which the repeated acts of sexual abuse must end. There is no ambiguity in
the statute’s language requiring that the repeated acts of sexual abuse must have occurred over a
period that is 30 or more days in duration. Nor is there any ambiguity in the statute’s language
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setting forth the requirement that the repeated acts of sexual abuse must have occurred before the
child turned fourteen years old. The statute’s use of “period” simply speaks in terms of the
minimum length of time in which a sexually abusive relationship with a young child must exist
before a defendant can be prosecuted under this statute. It does not attempt to define the required
frequency or temporal proximity of the prohibited sexual acts. Appellant’s argument that “[I]n
specifying “a period,” the legislature required the offense conduct to transpire during one
continuous period,” would require this Court to presume that the legislature intended to define
and control this type of sexually abusive behavior by a particular frequency or temporal standard.
This interpretation is not supported by the statute’s plain language. See Wilson v. State, 448
S.W.3d 418, 424 (Tex. Crim. App. 2014) (evidence of six voicemail messages left over a period
of ten months supported conviction for telephone harassment because although the statute
required “repeated” communications, it did not require that they occur with any particular
frequency or temporal proximity from one to another). We overrule appellant’s first issue.
II. Sufficiency of Evidence – Indecency with a Child, Specific Intent
In appellant’s second issue, he contends that the evidence is insufficient to prove the
predicate offense of indecency with a child against ZG because it failed to show that appellant
acted with sexual intent when his hand touched ZG’s vaginal area. We disagree.
In reviewing the sufficiency of the evidence, we view all the evidence in the light most
favorable to the verdict, and determine whether any rational trier of fact could have found the
essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307,
313 (1979); Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010). We assume the fact
finder resolved conflicts in the testimony, weighed the evidence, and drew reasonable inferences
in a manner that supports the verdict. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App.
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2007). We defer to the trier of fact's determinations of witness credibility and the weight to be
given their testimony. Brooks, 323 S.W.3d at 899.
To establish the offense of indecency with a child by contact, the State had to
demonstrate that appellant engaged in sexual contact with ZG with the intent to arouse or gratify
appellant’s sexual desire. TEX. PENAL CODE ANN. § 21.11(c)(1) (West Supp. 2017). The
specific intent required for the offense of indecency with a child may be inferred from a
defendant’s conduct, his remarks, and all of the surrounding circumstances. McKenzie v. State,
617 S.W.2d 211, 216 (Tex. Crim. App. 1981). The uncorroborated testimony of a child sexual
abuse victim is sufficient to support a conviction for indecency with a child. See TEX. CODE
CRIM. PROC. ANN. art. 38.07 (West Supp. 2017); Martinez v. State, 178 S.W.3d 806, 814 (Tex.
Crim. App. 2005) (noting that article 38.07 “deals with the sufficiency of evidence required to
sustain a conviction for” certain sexual offenses). An oral expression of intent is not required;
the conduct itself is sufficient to infer intent. Connell v. State, 233 S.W.3d 460, 467 (Tex.
App.—Fort Worth 2007, no pet.).
ZG testified that when appellant walked by her in the hallway he was swinging his arms
and touched her vaginal area with his hand. She testified that she tried to get out of his way by
pushing herself against the wall. In addition, ZG’s testimony shows a pattern of sexual conduct
by appellant towards ZG over a period of six years. This conduct included appellant requiring
ZG to perform oral sex; appellant rubbing ZG’s legs and sliding his hand toward her vaginal
area; appellant placing his head on ZG’s legs near her vaginal area while caressing her legs;
appellant requiring ZG to greet him with a kiss on the lips while forcing his tongue into her
mouth; and appellant giving ZG passionate hugs in which he would caress her and put his hand
on her lower back near her buttocks. In addition, the jury heard the testimony from ZG’s mother
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regarding the outcry ZG made to her when she was seven years old about appellant touching her
and saw that ZG’s vaginal area was irritated.
We conclude that ZG’s testimony that appellant touched her vaginal area with his hand as
he walked by her in the hall while she tried to get out of his way, was sufficient for a rational
trier of fact to infer the element of intent to arouse or gratify sexual desire. Even if this alone
were insufficient for a finding of intent, the fact that on numerous occasions over the past six
years appellant’s conduct towards ZG was clearly sexual in nature, thwarted only by ZG’s
attempts to push appellant away, is additional evidence of intent. See Morgan v. State, 692
S.W.2d 877, 881 (Tex. Crim. App. 1985) (finding extraneous offense that defendant had touched
complainant in same manner on previous occasions had “indubitable probative value” of
defendant’s intent”); Navarro v. State, 241 S.W.3d 77 (Tex. App.—Houston [1st Dist.] 2007,
pet. ref’d) (considering evidence that appellant had committed same conduct on other occasions
as additional evidence of intent); Abbott v. State, 196 S.W.3d 334, 341 (Tex. App.—Waco 2006,
pet. ref’d) (same). Appellant’s second issue is overruled.
III. Admission of Foreign Language Document
In his final three issues, appellant contends that the trial court erred by allowing the State
to publish an un-translated foreign language document because the State failed to comply with
article 38.30 of the Texas Code of Criminal Procedure or the provisions of Rule 1009(a) of the
Texas Rules of Evidence. The document at issue is a letter appellant wrote in Spanish to his
wife, Nora Garcia, while he was in jail awaiting trial. The record shows that Garcia required the
services of an interpreter at trial and that prior to her testimony, a Spanish translator was sworn
in to translate her testimony. During her testimony, Garcia identified State’s Exhibit 4 as a letter
written to her by appellant. The State then offered a highlighted portion of the letter into
evidence. No written English translation of the letter was offered. After taking the witness on
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voir dire, appellant made several objections to the evidence, including “best evidence” because
“It could have been translated,” as well as the fact that it was inadmissible because it “is a letter
in Spanish” and “It’s not something the jury can read.” Following appellant’s objections, the
trial court admitted the letter into evidence for record purposes only and allowed the State to
publish the letter during Garcia’s testimony by having Garcia read the letter to the jury. No
objection was made to the interpreter’s translation of the letter as it was read by the witness.
On appeal, appellant argues that there are only two ways in which foreign language
evidence may be admitted into evidence – by relying on article 38.30 of the Texas Code of
Criminal Procedure or by complying with Rule 1009(a) of the Texas Rules of Evidence. Since
no translated document was offered into evidence, Rule 1009(a) is clearly inapplicable.2
Regarding the State’s compliance with article 38.30, appellant states, “While a professional
translator interpreted the testimony given by NG, in the form of her reading Appellant’s letter to
her to the jury, the translator did not interpret the letter, as required under Article 38.30.”
Appellant’s contention is without merit.
We review the trial court’s decision to admit or exclude evidence under an abuse of
discretion standard. Henley v. State, 493 S.W.3d 77, 83 (Tex. Crim. App. 2016). A trial court’s
decision will be upheld when that decision is within the zone of reasonable disagreement. Id.
We afford a trial court wide discretion in determining the adequacy of interpretive services.
Linton v. State, 275 S.W.3d 493, 500 (Tex. Crim. App. 2009). The translation must be “true.”
That is, it must be accurate, but it need not be “perfect.” Id. at 501–02. “The ultimate question
2
Rule 1009(A) applies when a party offers a written translation of a foreign language document. It requires that
the written translation be coupled with an affidavit by a qualified translator setting forth the translator’s
qualifications and certifying that the translation is fair and accurate and that the translation be provided forty-five
days in advance. TEX. R. EVID. 1009(a).
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is whether any inadequacy in the interpretation made the trial ‘fundamentally unfair.’ Id. at 503
& n. 26 (quoting United States v. Huang, 960 F.2d 1128, 1136 (2d Cir. 1992).
In this case, the letter itself was never entered into evidence before the jury. Rather,
evidence regarding the content of the letter was presented through the testimony of Garcia, the
person to whom the letter was written. Garcia’s testimony was translated by an identified,
officially sworn, licensed interpreter. No objection was made to the qualifications of the
interpreter. The El Paso Court of Appeals has held that the requirements of article 38.30 of the
Texas Code of Criminal Procedure are met when “the interpreter was positively identified,
qualified, officially sworn, and subjected to cross-examination.” Peralta v. State, 338 S.W.3d
598, 605 (Tex. App.—El Paso 2014, no pet.) (citing Flores v. State, 299 S.W.3d 843, 856 (Tex.
App.—El Paso 2009, pet. ref’d).
Appellant cites Leal v. State, 782 S.W.2d 844 (Tex. Crim. App. 1989) in support of his
contention that article 38.30 requires a professional translator to interpret the letter itself, rather
than translate the testimony of a witness who read the letter to the jury. Appellant’s reliance on
Leal is misplaced. In Leal, the Court of Criminal Appeals determined that the admission of a
recorded conversation in a foreign language is analogous to testimony by a non-English speaker
such that the safeguards of article 38.30 apply. Id. at 849. The court determined that because an
interpreter must be sworn to translate the recorded conversation, the trial court erred in admitting
the tape recording into evidence with an unsworn translation. Id. at 849–50. In Leal, there was
no positive identification of who actually translated the conversation; there was no evidence that
they were qualified to make the translation; and no one was sworn by the trial court as an
interpreter. Id. at 849. Further, the interpreter was not called to the stand so the accuracy of the
translation could be subject to cross-examination. Id. Leal does not address appellant’s claim, it
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merely stands for the notion that proper safeguards should be applied to ensure an accurate and
reliable translation is provided to the jury. Peralta, 338 S.W.3d at 606.
Appellant does not challenge the quality or accuracy of the translation of Garcia’s
testimony as it related to the letter. In fact, appellant testified during trial on his own behalf and
confirmed that he sent the letter to his wife. During his testimony, he read a portion of the letter
out loud and explained to the jury what he meant by what he wrote in the letter. At no time, did
he dispute the interpreter’s translation of the letter as it was read by his wife to the jury.
We conclude that the trial court did not err in failing to require the interpreter to translate
the letter itself separately from the translation she provided to the jury during the witness’s
testimony when the letter was read to the jury. Appellant’s third, fourth and fifth issues are
overruled.
CONCLUSION
We affirm the trial court’s judgments.
/David Evans/
DAVID EVANS
JUSTICE
Do Not Publish
TEX. R. APP. P. 47
161280F.U05
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
JOSE M. DOMINGUEZ, Appellant On Appeal from the 292nd Judicial District
Court, Dallas County, Texas
No. 05-16-01280-CR V. Trial Court Cause No. F15-31011-V.
Opinion delivered by Justice Evans, Justices
THE STATE OF TEXAS, Appellee Francis and Boatright participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered this 31st day of January, 2018.
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
JOSE M. DOMINGUEZ, Appellant On Appeal from the 292nd Judicial District
Court, Dallas County, Texas
No. 05-16-01281-CR V. Trial Court Cause No. F15-31009-V.
Opinion delivered by Justice Evans, Justices
THE STATE OF TEXAS, Appellee Francis and Boatright participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered this 31st day of January, 2018.
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
JOSE M. DOMINGUEZ, Appellant On Appeal from the 292nd Judicial District
Court, Dallas County, Texas
No. 05-16-01282-CR V. Trial Court Cause No. F15-30988-V.
Opinion delivered by Justice Evans, Justices
THE STATE OF TEXAS, Appellee Francis and Boatright participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered this 31st day of January, 2018.
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