Heriberto Muniz v. State ( 2008 )

Affirmed and Memorandum Opinion filed February 5, 2008

Affirmed and Memorandum Opinion filed February 5, 2008.

In The

Fourteenth Court of Appeals

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NO. 14-06-00989-CR

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HERIBERTO MUNIZ, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 248th District Court

Harris County, Texas

Trial Court Cause No. 1048465

M E M O R A N D U M   O P I N I O N

Appellant Heriberto Muniz was convicted of aggravated sexual assault of a child and sentenced to seventeen years and six months in prison.  In a single issue, appellant contends the evidence is factually insufficient to support the conviction.  We affirm.

BACKGROUND

On November 26, 2005, the day after Thanksgiving, Karla Perales took her three children, a son and daughters S.M., age eight, and A.P., age seven, to appellant=s home.  Appellant is the biological father of S.M., but the child lived with Perales.  Several other children were also at appellant=s house that night, including three female cousins of Perales=s children. Following some discussion, it was decided a babysitter would watch the children while the adults went to a party at another house.  The five girls (S.M., A.P., and their three female cousins) went to sleep on a king size bed in one of the bedrooms.  All five girls slept with their heads on the pillows at the top of the bed.

Appellant and Perales returned home a couple of hours after midnight.  Perales went to a sofa in the living room to sleep; appellant watched television on another sofa in the same room.  Finally appellant got up and said he was going to bed.  Perales dozed off and then heard steps and voices in the hall.  The complainant, S.M., testified that she was asleep in the king size bed with the other girls when she was awakened by appellant=s hands on her ankles.  Appellant pulled her down to the foot of the bed.  S.M. testified appellant pulled her underwear and sweat pants down, pulled his shorts down, and then touched his Amiddle part@ to her Amiddle part.@  She testified that she felt something Ahard@ inside her Amiddle part@ and that it hurt.  S.M. testified appellant then turned her over and touched his Amiddle part@ to her Abutt.@

Shortly after appellant left the living room, Perales got up and went into the bedroom where the five girls were.  Upon entering the room, she saw appellant standing at the foot of the bed and S.M. on her back at the foot of the bed with her legs hanging over the edge.  The other four girls still had their heads on the pillows.  Perales asked appellant what he was doing, and he replied that the child had Amoved down.@  Perales put her hand under S.M. and found the child=s underpants and sweat pants Abundled up in the back.@  Perales then left appellant=s house, taking S.M., A.P., and some of the other children with her.  She drove to appellant=s mother=s home where she examined S.M. in the restroom and found her genital area Ared and swollen.@  S.M. told her mother that appellant had touched his Amiddle part@ to her Amiddle part@ and to her bottom.  She also told her mother that this was not the first time appellant had touched her and that she had seen appellant touching A.P. on a previous occasion. 

Perales took S.M. and A.P. to the hospital where a nurse examined the girls.  The nurse discovered abrasions consistent with sexual abuse on S.M.=s anus, and anal and labia swabs from S.M. tested positive for semen.  At the hospital, Perales gave a statement to a Houston police officer in the Juvenile Sex Crimes Unit.  S.M. and A.P. were interviewed two days later at the Children=s Assessment Center (CAC).  S.M. gave similar testimony to the forensic examiner at the CAC that she had given to Perales.  After viewing their statements, the police officer filed a warrant for appellant=s arrest.  Appellant was arrested and indicted on three counts of aggravated sexual assault of a child under the age of fourteen.^[1]

STANDARD OF REVIEW

In reviewing a jury=s determination for factual sufficiency, we do not view the evidence Ain the light most favorable to the prosecution.@  Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997).  Instead, we look at all evidence in a neutral light and will reverse only if (1) the evidence is so weak that the finding seems clearly wrong and manifestly unjust, or (2) considering conflicting evidence, the finding, though legally sufficient, is nevertheless against the great weight and preponderance of the evidence.  See Watson v. State, 204 S.W.3d 404, 414B15 (Tex. Crim. App. 2006).  In our review, we must consider the evidence that appellant claims most undermines the jury=s verdict.  Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).  We cannot declare that a conflict in the evidence justifies a new trial simply because we may disagree with the factfinder=s resolution of that conflict.  See Watson, 204 S.W.3d at 417.  Nor can we conclude a finding is Aclearly wrong@ or Amanifestly unjust@ simply because, on the quantum of evidence admitted, we would have voted differently had we been the fact finder.  See id.  Rather, before ordering a new trial, we must first be able to say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the verdict.  See id.

ANALYSIS

To support a conviction for aggravated sexual assault of a child, the State had to prove appellant intentionally or knowingly caused the sexual organ of a child younger than fourteen years of age to contact or penetrate the mouth, anus, or sexual organ of the actor.  See Tex. Penal Code Ann. ' 22.021(a)(1)(B), 2(B) (Vernon Supp. 2005).  Appellant was convicted on one count of causing his sexual organ to contact the sexual organ of S.M., a child under the age of fourteen.

In his sole issue on appeal, appellant argues the evidence is factually insufficient to sustain his conviction.  Specifically, appellant argues: (1) the circumstances make it unlikely that he committed the offense, (2) the scientific evidence does not conclusively link appellant to the offense and is more consistent with abuse occurring earlier than alleged by S.M., (3) S.M.=s delayed cognitive development casts doubt on the credibility of her testimony, (4) the outcry witness, a CAC forensic examiner, Adragged@ S.M.=s story out of S.M., making what S.M. told the outcry witness less credible, (5) Perales=s testimony was not credible because she had a motive to cause trouble for appellant and had been using cocaine that night, and (6) two family members gave testimony inconsistent with S.M.=s testimony.  Appellant asserts that contradictory testimony and inconclusive scientific evidence render the evidence factually insufficient to sustain his conviction.  We address each of appellant=s arguments in turn.

Appellant first argues that the circumstances as alleged make it unlikely he committed the offense.  He would have had to commit the offense while four other children slept in the same bed, one of whom appellant testified was a light sleeper.  In addition, none of the other four girls in the bed saw anything untoward occur that night.  While this evidence suggests appellant could not have easily committed the alleged sexual assault, it does not necessarily lead a rational jury to conclude appellant could not have done so.  See Tran v. State, 221 S.W.2d 79, 89 (Tex. App.CHouston [14th Dist.] 2005, pet. ref=d) (holding that rational jury could have concluded appellant committed alleged sexual offense even though victim=s father and siblings, who lived with appellant and victim, never heard of alleged occurrences and even though appellant worked twelve to sixteen hours a day); Carty v. State, 178 S.W.3d 297, 304 (Tex. App.CHouston [1st Dist.] 2005, pet. ref=d) (finding evidence factually sufficient to support alleged assault even though little brother was asleep on floor in same room during one assault and heard nothing).  The time and location of the assault therefore do not make the evidence supporting the conviction factually insufficient.  See Ratcliffe v. State, No. 14-06-00543-CR, 2007 WL 1745831, at *5 (Tex. App.CHouston [14th Dist.] June 19, 2007, no pet. h.) (mem. op., not designated for publication) (concluding evidence supporting conviction was not overwhelmed by fact sexual assault on child occurred in plain view in a restaurant). 

Appellant argues Perales=s testimony regarding what she saw the night of the offense is not credible because Perales is an admitted cocaine user, she had been drinking that evening and using cocaine, and the rocky relationship between Perales and appellant gave Perales a motive to testify against appellant.  Appellant testified that while at the party, he accidentally walked in on Perales doing cocaine in the bathroom. Appellant also presented letters Perales wrote to him after he was arrested. In the letters, Perales stated she was sorry for what had happened and was unsure about what had occurred that night.  Perales, on the other hand, testified that she did not use cocaine on the night of the offense.  The State also introduced letters appellant wrote to Perales, telling Perales that if she wanted to help appellant she should Adisappear for a year or talk to [the State=s lawyer] and tell her you made a mistake or something or tell the girls to change their story.@  Perales further testified appellant=s mother placed tremendous pressure on her, making Perales feel that appellant and the other children were suffering because of her.     This evidence, cited by appellant as contrary to the verdict, actually goes to the weight of appellant=s and Perales=s testimony.  When it comes to witness credibility and the weight to be given a witness=s testimony, the jury is the exclusive judge.  Penagraph v. State, 623 S.W.2d 341, 343 (Tex. Crim. App. 1981).  The jury may believe all, some, or none of any witness=s testimony.  Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986).  A jury decision is not manifestly unjust merely because the jury resolved conflicting views of evidence in favor of the State.  Cain, 958 S.W.2d at 410.  We defer to the jury=s implicit determination that Perales=s testimony was credible.  See Rodriguez v. State, 819 S.W.2d 871, 872 (Tex. Crim. App. 1991) (finding that jury could disbelieve appellant=s testimony that victim=s mother fabricated story out of spite because appellant had ended their affair and gone back to his wife).  We conclude this evidence does not render the verdict factually insufficient.

Appellant next claims S.M.=s statement to the outcry witness and her testimony at trial were not credible because S.M. could not accurately recall and relate the events.  Appellant argues this raises the possibility the events were planted in her mind by others.  The record reflects that S.M. is somewhat developmentally delayed for a child her age.  Perales testified S.M. is in special education classes and receives Social Security benefits.  Claudia Mullins, the outcry witness and forensic examiner at the CAC who interviewed S.M. two days after the assault, testified S.M. Awas not really developmentally on target.@  Mullins testified S.M. could not really answer her questions as to when the assault occurred_whether it occurred before or after Thanksgiving or before or after Halloween_and children of S.M.=s age can usually answer such questions.  In addition, appellant claims Mullins had to Adrag@ S.M.=s testimony out of her because at first S.M. told Mullins nothing had happened and only after further questioning did she relate the assault.  Appellant claims the contradictory testimony given by other defense witnesses further supports his argument that S.M.=s testimony is not credible.  Two of S.M.=s relatives gave testimony inconsistent with S.M.=s account.  One cousin testified S.M. told her nothing had happened and that her mother made her lie.  Another cousin testified she was in the bed with S.M. that night, slipping in and out of sleep, and nothing had happened.

The testimony of a child sexual abuse victim alone is sufficient to support a conviction for aggravated sexual assault.  Tex. Code Crim. Proc. Ann. art. 38.07 (Vernon 2005).  Courts give wide latitude to testimony given by child victims of sexual abuse.  See Villalon v. State, 791 S.W.2d 130, 134 (Tex. Crim. App. 1990) (en banc).  The victim=s description need not be precise, nor is she expected to express herself at the same level of sophistication as an adult.  Id.  Further, outcry testimony alone is also sufficient to sustain a conviction for aggravated sexual assault.  See Rodriguez, 819 S.W.2d at 873B74.

The record before us demonstrates that even though developmentally delayed, S.M. articulated what appellant did to her.  S.M. testified at trial that appellant pulled down his pants and her pants and touched his Amiddle part@ to her Amiddle part@ and to her Abutt@ and that appellant=s Amiddle part@ inside her felt Ahard@ and Awet@ and Ahurt.@  S.M.=s inability to relate the time frame in which the events occurred does not outweigh the rest of her testimony.  See Villalon, 791 S.W.2d at 134; Tran, 221 S.W.3d at 83, 88 (holding that child=s testimony, though ambiguous as to location of sexual assault, was still sufficient to support conviction).  Further, Mullins=s testimony regarding the outcry statement corroborated S.M.=s testimony.  The jury may have found both S.M. and Mullins credible witnesses and disbelieved the cousins= accounts.  Or the jury may have believed one cousin testified truthfully to what S.M. told her, but chose to disbelieve S.M.=s statement to the cousin that her father did not touch her.  See Sudds v. State, 140 S.W.3d 813, 818 (Tex. App.CHouston [14th Dist.] 2004, no pet.) (concluding jury was entitled to disbelieve recantation by witness).  It is not our function to attempt to determine which version of the story we would have believed had we been the factfinder.  See Fernandez v. State, 805 S.W.2d 451, 456 (Tex. Crim. App. 1991). 

Viewed in a neutral light, we conclude S.M.=s and Mullins=s testimonies established the essential elements of aggravated assault of a child.  See Tex. Penal Code Ann. _ 22.021(a)(1)(B)(1).  The evidence to the contrary is not so weak as to undermine confidence in the jury=s determination.  Escamilla v. State, 143 S.W.3d 814, 817 (Tex. Crim. App. 2004); see also Ozuna v. State, 199 S.W.3d 601, 609B10 (Tex. App.CCorpus Christi 2006, no pet.) (despite child=s hyperactivity and difficulty communicating with examiner, testimony by child established essential elements of aggravated sexual assault and was sufficient to sustain conviction); Perez v. State, 113 S.W.3d 819, 837 (Tex. App.CAustin 2003, pet. ref=d) (testimony about assault by child who habitually lied and admitted to giving conflicting accounts of incident was factually sufficient to support conviction). 

Finally, appellant argues the inconclusive scientific evidence, in conjunction with the contradictory testimony, is at best inconclusive as to whether appellant committed the offense.  Analysis of the semen found on S.M. did not establish the identity of the sperm donor and therefore does not conclusively link appellant to the offense.  Appellant also argues the lack of semen found in S.M.=s underwear indicates that any assault, if it took place, occurred at a much earlier time than S.M. alleges and therefore was committed by someone else.

Properly admitted outcry testimony need not be corroborated or sustained by independent evidence.  Rodriguez, 819 S.W.2d at 874. This court has found evidence factually sufficient to sustain a sexual assault conviction despite inconclusive scientific evidence of the assault.  See Tran, 221 S.W.2d at 89 (inconclusive medical examination did not render evidence factually insufficient to support conviction); Galinda v. State, No. 14-06-00230-CR, 2007 WL 1470217, at *2B3 (Tex. App.CHouston [14th Dist.] May 22, 2007, pet. struck) (mem. op., not designated for publication) (evidence factually sufficient despite victim recanting her story and lack of physical evidence proving appellant committed assault); accord Ozuna, 199 S.W.3d at 609 (conviction affirmed despite inconclusive physical evidence of assault); Perez, 113 S.W.2d at 837 (evidence factually sufficient despite normal genital exam).  The physical evidence indicates S.M. was sexually assaulted.  From the record before us, we are thus unable to conclude that the lack of physical evidence directly linking appellant to the offense renders the verdict factually insufficient.

After reviewing the evidence in a neutral light, we conclude the evidence is not so weak as to be clearly wrong and manifestly unjust, nor is there contrary evidence that makes the finding of guilt against the great weight and preponderance of the evidence.  Watson, 204 S.W.3d at 414.  Accordingly, we conclude the evidence is factually sufficient to support appellant=s conviction, and we overrule appellant=s sole issue. 

We affirm the trial court=s judgment.

/s/      Leslie B. Yates

Justice

Judgment rendered and Memorandum Opinion filed February 5, 2008.

Panel consists of Justices Yates, Fowler, and Guzman.

Do Not Publish C Tex. R. App. P. 47.2(b).

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^[1]  Two counts concerned assaults on S.M., and one count involved an assault on A.P.