Mario Cano v. State ( 2006 )

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-05-00247-CR

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MARIO CANO, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 380th Judicial District Court

Collin County, Texas

Trial Court No. 380-82067-04

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Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Justice Carter

MEMORANDUM OPINION

            Mario Cano was found guilty in two of three counts of indecency with a child, as charged by the indictment in this case. The jury then assessed Cano's punishment at fifteen years' imprisonment for each count. Cano now appeals, contending the evidence is legally and factually insufficient to support his conviction because the complainant failed to identify him as being the same "Mario" whom the complainant testified as having molested her. Cano further contends a fatal variance exists between the allegations contained in the indictment and the proof offered by the State at trial. For the reasons stated below, we overrule each point of error and affirm the trial court's judgment.

I.         Procedural History

            This case is procedurally more complex than the above synopsis might otherwise suggest. The grand jury originally returned six separate indictments against Cano, with each indictment concerning a different complainant. All but one of those indictments contained multiple counts. And, to further complicate matters, the State consolidated all six cases into a single jury trial. After both sides had presented their cases, but before arguing the case and submitting it to a jury, the trial court granted Cano's motions for directed verdicts in two of the cases. Then the jury found Cano guilty in the remaining cases of all counts, with the single exception of the third of three counts in this case. With this procedural background in mind, we turn to the issues Cano presents in this appeal.

II.       Evidentiary Sufficiency

            A.        Standard of Review

            In his first and second points of error, Cano contends the evidence is legally and factually insufficient to support his conviction because the complainant in this case failed to identify Cano as the same "Mario" who had molested her. In reviewing the legal sufficiency of the evidence, we view the relevant 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 crime beyond a reasonable doubt. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). In our review of the evidence for factual sufficiency, we view all the evidence in a neutral light and determine whether the evidence supporting the verdict is too weak to support the finding of guilt beyond a reasonable doubt or if evidence contrary to the verdict is strong enough that the beyond-a-reasonable-doubt standard could not have been met. Threadgill v. State, 146 S.W.3d 654, 664 (Tex. Crim. App. 2004) (citing Zuniga v. State, 144 S.W.3d 477, 486 (Tex. Crim. App. 2004)).

            B.        Elements of Indecency and Indictment in This Case (Cause Number 380-82067-04)

            The crime of indecency with a child requires the State to prove, beyond a reasonable doubt, that the accused engaged in sexual contact with the child or caused the child to engage in sexual contact; the State must further show the child was younger than seventeen years of age and was not the accused's spouse. Tex. Pen. Code Ann. § 21.11(a). Our law defines "sexual contact" as "any touching by a person, including touching through clothing, of the anus, breast, or any part of the genitals of the child . . . ." Tex. Pen. Code Ann. § 21.11(c).

            The jury acquitted Cano on the third count charged in this case. The indictment's remaining counts, of which the jury adjudged Cano to be guilty, alleged Cano intentionally or knowingly, with intent to arouse and gratify his sexual desire, (1) engaged in sexual contact by touching part of the genitals of N.M., a child younger than seventeen and not Cano's spouse, by using his hand and (2) engaged in sexual contact by touching the breast of N.M., a child younger than seventeen and not Cano's spouse, using Cano's hand. Both counts thus allege Cano committed the crime of indecency with a child.

            C.        The Evidence Presented at Trial

            N.M., the complainant in this case, testified in this case (as did each of the other complainants in Cano's companion appeals). N.M., a ten-year-old girl at the time of trial, told the jury that a man named "Mario" had been living with her and her family during the time period at issue. She testified that a man named "Mario" assaulted her on several occasions. She said Mario had once touched her pecho while she had her clothes on. On a different occasion, Mario had touched her where she goes to the bathroom. According to N.M., these incidents occurred in "Mario's" bedroom. However, on two other occasions, "Mario" touched her inappropriately once while they were outside in the yard and once when she and "Mario" were in the family's living room.

            Yet, despite being so specific about how and where she had been touched inappropriately, N.M. never affirmatively identified Cano in open court as being the same "Mario" who had assaulted her, or even as being the same person who had lived with her and her family during the time of the assaults. Similarly, the complainants in Cano's other cases provided specific testimony regarding their victimization, but none were ever asked to identify Cano in open court as being the same "Mario" about whom they had testified as having perpetrated the crimes. Thus, there would seem to be an evidentiary disconnect between the evidence of abuse (which was provided through the complainants' testimony) and the identification of Cano as being the person who engaged in the abusive conduct.

            The complainants' testimony did not, however, constitute the entirety of the State's evidence. Paulina Dominguez, who was N.M.'s grandmother, also testified. Dominguez identified Cano in open court as being the same "Mario" who had lived with the family, who had been entrusted while other adults were working, who had celebrated holidays and other special occasions with N.M. and her extended family, and who was the same person about whom N.M. and the other complainants had made outcries of sexual abuse.

            Identity of the person committing a crime may be proven by circumstantial evidence. Earls v. State, 702 S.W.2d 82, 85 (Tex. Crim. App. 1986). No formalized procedure is required to prove the identity of the accused. Proof by circumstantial evidence is not subject to a more rigorous standard than proof by direct evidence. Roberson v. State, 16 S.W.3d 156, 167 (Tex. App.—Austin 2000, pet. ref'd); see Couchman v. State, 3 S.W.3d 155, 162–63 (Tex. App.—Fort Worth 1999, pet. ref'd) (proof a person named "Tony" improperly touched complainant found to be sufficient evidence when combined with testimony of grandmother of complainant who testified defendant was called "Tony" and identified defendant as the "Tony" she was referring to).

            Given Dominguez' additional testimony, we believe the jury had before it legally sufficient evidence to link N.M.'s allegations of abuse to Cano. Cano tangentially suggests in his brief on appeal that someone else who lived in the house might have committed these acts. But there is no evidence in the record to link anyone other than Cano to N.M.'s outcries of abuse. Cano brought forth no evidence in the court below that there were others in the house who could be linked to N.M.'s allegations. Thus, we cannot say that this absence of contrary evidence is sufficient to outweigh the evidence supporting the jury's verdict. And, after a thorough review of the record, we also cannot say there is anything about the jury's verdict that "shocks the conscience" or otherwise appears to be manifestly unjust. Accordingly, we conclude the evidence in this case is factually sufficient to support the jury's verdict. Cano's first and second points of error are overruled.

III.      Material Variance

            In his final point of error, Cano contends a material variance exists between the allegations contained in the indictment in this case and the proof offered at trial. The record before us affirmatively shows the first name of the complainant that is listed in the amended indictment is not the same first name to which N.M. answered at trial. Nor did any of the State's other witnesses call N.M. by the same first name given in the State's amended indictment. A variance therefore exists between the facts listed in the indictment and the proof offered at trial.

            "A variance between the indictment and the evidence may be fatal to a conviction because due process guarantees that the defendant have notice of the charges against him." Washington v. State, 59 S.W.3d 260, 262 (Tex. App.—Texarkana 2001, pet. ref'd).

However, only a material variance is fatal. In determining whether a variance is material, we determine whether the indictment informed the defendant of the charge against him sufficiently to allow him to prepare an adequate defense at trial and whether the prosecution under the indictment as drawn would subject the defendant to the risk of being prosecuted later for the same crime.

Id. (citing Gollihar v. State, 46 S.W.3d 243, 257 (Tex. Crim. App. 2001)).

            In this case, Cano presents no argument that the variance now at issue is material. Nor has Cano's appellate brief provided us with the appropriate record references to illustrate where the different names have been used, so as to enable us to make our own comparison without having to read through the entirety of the five-volume, 500-plus page record. Thus, this issue is, at best, inadequately briefed. Tong v. State, 25 S.W.3d 707, 710 (Tex. Crim. App. 2000) ("appellant must . . . provide the Court with the relevant jurisprudential framework for evaluating his claim"); see Tex. R. App. P. 38.1(h).

            Nevertheless, we have reviewed the entire record on our own. That entirety affirmatively demonstrates that the variance now at issue did, in no way, diminish Cano's ability to prepare a defense in this case. For example, Cano's trial counsel thoroughly cross-examined the complainant in this case regarding several apparent inconsistencies between her statement to a forensic child abuse interviewer and her trial testimony. Cano's counsel highlighted the fact that N.M. had provided details about the alleged assault on one occasion, but had failed to provide those details on another occasion. Counsel also sought to show the jury through counsel's cross-examination of the complainant that the complainant's trial testimony was inconsistent with the factual accounts provided by the other complainants. We also note that the spelling of the name used in the indictment is very similar, although not exactly the same, as the spelling of N.M.'s actual first name. Nor does the record show that Cano was at all surprised by the appearance of a ten-year-old, female girl with whom he had previously lived, yet was called by a name other than that listed in the indictment. Cf. Greeno v. State, 46 S.W.3d 409, 412 (Tex. App.—Houston [14th Dist.] 2001, no pet.) (defendant failed to show surprise because victims were defendant's own children and defendant had used their legal names in pretrial motions).

            Despite Cano's bald assertion of a variance, this is not a case where the alleged variance is material. Cano was clearly able to prepare and mount a defense at trial. And because the State has apparently brought forth every conceivable charge, with every conceivable complainant, which was consolidated into a single jury trial, we are confident Cano will not be subject to prosecution again for the same crime. Accordingly, we conclude the variance at issue here is immaterial, and we overrule Cano's final point of error.

IV.      Conclusion

            For the reasons stated, we affirm the trial court's judgment.

                                                                        Jack Carter

                                                                        Justice

Date Submitted:          July 28, 2006

Date Decided:             August 22, 2006

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