Noemi Isabel Noria v. State ( 2018 )

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-18-00005-CR
NOEMI ISABEL NORIA, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 336th District Court
Fannin County, Texas
Trial Court No. 17-26260
Before Morriss, C.J., Moseley and Burgess, JJ.
Memorandum Opinion by Justice Burgess
MEMORANDUM OPINION
After hearing evidence implicating Noemi Isabel Noria in the sexual assault of her young
son, A.G., 1 a Fannin County jury convicted her of continuous sexual assault of a young child.2
Noria elected that punishment be assessed by the trial court, and, after a hearing, the trial court
sentenced her to thirty years’ imprisonment. On appeal, Noria challenges the sufficiency of the
evidence supporting her conviction. Because we find that the evidence was sufficient to support
her conviction, we will affirm the judgment of the trial court.
I. The Evidence at Trial
At trial, A.G., 3 testified that he had been sexually assaulted three times by Sergio, who
worked with Noria and his stepfather, Pedro. The first time occurred at his grandfather’s house
when A.G. was eight years old. A.G. testified that he was asleep in his mother’s bedroom and that
Noria, Pedro, and Sergio were outside of the house. He awoke when Sergio came in the room
and locked the door. Sergio then pulled his and A.G.’s pants down, got in bed, and put his penis
in A.G.’s anus. 4 When Sergio stopped, A.G.’s anus was wet and hurt. Afterward, A.G. took a
shower and went outside to play.
The second time occurred at Noria’s workplace, again when A.G. was eight years old.
A.G. testified that Noria took his brothers, his sister, and him to Noria’s workplace to take Pedro
1
All persons who were minors at the time of the offenses referenced in this opinion will be referred to by their initials.
See TEX. R. APP. P. 9.10.
2
See TEX. PENAL CODE ANN. § 21.02(b) (West Supp.2018).
3
A.G. was born on February 9, 2006, and he was eleven years old when he testified.
4
At the time of this assault, Sergio and Noria were both over seventeen years old.
2
his lunch. 5 While his brothers and sister played in the parking lot, A.G. accompanied Noria inside.
After they went to Pedro’s office and gave him his lunch, Pedro and Noria went outside and left
A.G. in the office with Sergio. Sergio walked over to A.G., pulled his pants down, and again
sexually assaulted him in the same way as before. Afterwards, Sergio left the office, and A.G.
returned to the car, where Noria waited. A.G. also testified that, when he attempted to tell Noria
about this assault, she ignored him.
A.G. testified that the third assault happened at Sergio’s house when he was almost nine
years old. On this occurrence, Noria took A.G. to Sergio’s house. When they got there, Sergio’s
wife and children were there, and A.G. went to play with Sergio’s sons in their room. After Pedro
went to the bathroom, Pedro called for him and took him into a room where there was a rope and
tape on a bed. Noria and Sergio were also in the room. Pedro tied him to the bed stretched out on
his stomach, and Noria put duct tape over his mouth. Sergio then pulled his and A.G.’s pants down
and put his penis in A.G.’s anus. When Sergio was through, Pedro untied him, and Sergio ripped
the tape off of his mouth.
The first person that A.G. told about the assaults was his adult cousin, Leticia. 6 Leticia
testified that A.G. and three of his siblings came to live with her in October 2015. Within a few
months, A.G. told her about the three sexual assaults by Sergio and drew pictures of them. 7
Leticia’s testimony regarding what A.G. told her was generally consistent with A.G.’s trial
5
Other testimony showed that Noria worked the day shift and that Pedro and Sergio worked the night shift.
6
A.G. also referred to Leticia as “Mercedes.”
7
Two of the drawings were introduced into evidence.
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testimony. Some of the details varied from A.G.’s testimony, however. Regarding the assault at
Sergio’s house, Leticia testified that A.G. told her that Noria was asleep in Sergio’s bed during the
assault. Also, A.G. told her regarding the first assault that he had come home from school and
Noria, Pedro, and Sergio were outside of the house. He went in to put his books away, and Sergio
came in and told him to come with him, then assaulted him. After the outcry by A.G., Leticia
notified the police and Child Protective Services.
Britney Martin, the executive director of the Grayson County Children’s Advocacy Center,
performed a forensic interview of A.G. on March 3, 2016. She testified that A.G. was scared and
upset and that she observed him to have shame, embarrassment, and fear. Martin stated that A.G.
had been interviewed twice before and that she had reviewed those interviews before she
performed hers. A copy of her interview was introduced into evidence. Martin testified that A.G.
told her about three incidents with one perpetrator and about two other occurrences with different
perpetrators. He identified Sergio, Pedro, and A.G.’s brother, Nelson, as the perpetrators. She
also testified that A.G. never told her that Noria was present during the assaults, that he was tied
up, or that Noria duct taped him and participated in any assault.
In his forensic interview, A.G.’s descriptions of the first two assaults were generally
consistent with his trial testimony. A.G. also told Martin that, after the first incident, Sergio told
him that, if he told anyone, he would hurt him. A.G. maintained that he was seven or eight years
old at the time of the first and second assaults and that he was eight and one-half years old at the
time of the third assault. In his account of the third assault, A.G. maintained that only Sergio took
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him into a room and assaulted him and that Pedro and Noria were outside with Sergio’s wife at the
time. A.G. also told Martin that Noria and Pedro did not know what was happening with Sergio.
Kelly Gilleland is a licensed professional counselor and licensed sex-offender treatment
provider, and she works as a therapist at Pegasus School. She testified that she has seen A.G. two
times a week in group therapy and two to three times a week in individual therapy since he was
admitted in October 2016. Gilleland testified that A.G. began to make outcries against Pedro,
Sergio, and two of his brothers about three to four months after he began the program. He also
told her that Noria facilitated at least two of the assaults by Sergio. Gilleland also testified that
A.G. filled out two forms which are provided clients when they want to make an outcry. The first
form briefly alleges the three assaults by Sergio and states that Pedro participated. The second
form concerns the assault that took place at Sergio’s house and indicates that Noria and Pedro tied
him to the bed and taped his mouth. Both forms indicate that the assaults happened when A.G.
was nine years old.
II. Standard of Review
In our determination of legal sufficiency, we review all the evidence in the light most
favorable to the trial court’s judgment to determine whether any rational jury could have found the
essential elements of the offense beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893,
912 (Tex. Crim. App. 2010) (plurality op.) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979));
Hartsfield v. State, 305 S.W.3d 859, 863 (Tex. App.—Texarkana 2010, pet. ref’d). In our rigorous
review, we focus on the quality of the evidence presented. Brooks, 323 S.W.3d at 917–18
(Cochran, J., concurring). We examine legal sufficiency under the direction of the Brooks opinion,
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and we defer to the responsibility of the jury “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); Clayton v. State,
235 S.W.3d 772, 778 (Tex. Crim. App. 2007). In drawing reasonable inferences, the jury “may
use common sense and apply common knowledge, observation, and experience gained in the
ordinary affairs of life.” Duren v. State, 87 S.W.3d 719, 724 (Tex. App.—Texarkana 2002, pet.
struck) (citing Manrique v. State, 994 S.W.2d 640, 649 (Tex. Crim. App. 1999) (Meyers, J.,
concurring)). Further, since the jury is the sole judge of the credibility of the witnesses and the
weight to be given their testimony, it may “believe all of a witnesses’ testimony, portions of it, or
none of it.” Thomas v. State, 444 S.W.3d 4, 10 (Tex. Crim. App. 2014). Finally, when the jury’s
decision is based on an evaluation of witness credibility, we give it almost complete deference.
Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008).
In our review, we consider “events occurring before, during and after the commission of
the offense and may rely on actions of the defendant which show an understanding and common
design to do the prohibited act.” Hooper, 214 S.W.3d at 13 (quoting Cordova v. State, 698 S.W.2d
107, 111 (Tex. Crim. App. 1985)). It is not required that each fact “point directly and
independently to the guilt of the appellant, as long as the cumulative force of all the incriminating
circumstances is sufficient to support the conviction.” Id. Circumstantial evidence and direct
evidence are equally probative in establishing the guilt of a defendant, and guilt can be established
by circumstantial evidence alone. Ramsey v. State, 473 S.W.3d 805, 809 (Tex. Crim. App. 2015);
Hooper, 214 S.W.3d at 13 (citing Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004)).
6
Legal sufficiency of the evidence is measured by the elements of the offense as defined by
a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997).
The hypothetically correct jury charge is “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.” Id.The State relied on Noria’s liability as a party to Sergio’s continuous sexual assault of
A.G. “A person is criminally responsible as a party to an offense if the offense is committed by
his own conduct, by the conduct of another for which he is criminally responsible, or by
both.” TEX. PENAL CODE ANN. § 7.01(a) (West 2011). A “person is criminally responsible for an
offense committed by the conduct of another if . . . acting with intent to promote or assist the
commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person
to commit the offense.” TEX. PENAL CODE ANN. § 7.02(a)(2) (West 2011); In re State ex rel.
Weeks, 391 S.W.3d 117, 124 (Tex. Crim. App. 2013). In determining whether an appellant is a
party to an offense, we may consider “events before, during, and after the commission of the
offense.” Gross v. State, 380 S.W.3d 181, 186 (Tex. Crim. App. 2012) (quoting Wygal v.
State, 555 S.W.2d 465, 468–69 (Tex. Crim. App. 1977)). We may consider circumstantial
evidence and look to the actions of the defendant showing an understanding and common design
to commit the offense. Ransom v. State, 920 S.W.2d 288, 302 (Tex. Crim. App. 1994) (citing
Cordova v. State, 698 S.W.2d 107, 111 (Tex. Crim. App. 1985)). However, a person’s mere
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presence at the scene of a crime, or his flight from the scene, without more, is not sufficient to
sustain a conviction based on party liability. Gross, 380 S.W.3d at 186.
III. Analysis
In this case, to obtain a conviction of Noria for continuous sexual assault of a young child
under the indictment and the statutes, the State had to show beyond a reasonable doubt that Noria,
(1) with intent to promote or assist Sergio in the commission of the offense, (2) aided or attempted
to aid Sergio (3) to commit two or more acts of sexual abuse 8 (4) against A.G., (5) during a period
that is thirty or more days in duration, (6) when Sergio was seventeen years of age or older and (7)
when A.G. was younger than fourteen years of age. See TEX. PENAL CODE ANN. §§ 7.02(a)(2),
21.02(b).
In her legal sufficiency challenge, Noria challenges only the sufficiency of the evidence
showing (1) that she was legally responsible for two or more acts of sexual abuse and (2) that there
were two acts of sexual abuse during a period of thirty or more days in duration. Noria does not
challenge the sufficiency of the evidence showing that Sergio committed the three acts of sexual
abuse when he was seventeen years of age or older and A.G. was younger than fourteen years of
age. In addition, Noria admits that there is sufficient evidence to support her liability as a party
for the sexual abuse that occurred at Sergio’s house. However, she argues that there is no evidence
from which the jury could rationally conclude that she aided Sergio in the commission of either of
the first two sexual assaults. Consequently, she argues, there is insufficient evidence showing she
8
An “act of sexual abuse” includes, among other types, sexual assault and aggravated sexual assault. TEX. PENAL
CODE ANN. § 21.02(c)(3)–(4) (West Supp. 2018).
8
is liable as a party for two or more acts of sexual abuse. Noria also argues that, because it is not
clear when the three assaults occurred, there is no evidence that they occurred over a period of
thirty or more days.
A. Two or More Sexual Assaults Were Shown By Sufficient Evidence
The evidence showed, when viewed in the light most favorable to the verdict, that, prior to
the assault at Sergio’s house, Noria took A.G. to Sergio’s house without his brothers and sisters.
Once there, Noria actively participated as Pedro and she bound A.G. to the bed and duct taped his
mouth to enable Sergio to sexually assault him without fear of discovery by Sergio’s family. Prior
to the assault at Noria’s workplace, Noria left the other children outside while A.G. accompanied
her to Pedro’s office. Once there, she and Pedro left A.G. in the office alone with Sergio, and
Noria apparently returned to her car, where A.G. found her after the assault. Further, the evidence
showed that Noria ignored A.G. when he attempted to tell her about the assault.
The jury could consider events before, during, and after the commission of the offense in
its determination of whether Noria both intended to assist and assisted Sergio in the commission
of the workplace assault. See Gross, 380 S.W.3d at 186. Therefore, the jury could consider that
Noria’s actions prior to and during the assault at Sergio’s house, and her refusal to listen to A.G.’s
outcry, would explain why Noria only took A.G. with her to the office, why she left him alone
with Sergio, and why she returned to her car without first retrieving A.G. Thus, a rational jury
could reasonably conclude that Noria’s actions before, during, and after the assault showed that
she both intended to assist, and assisted, Sergio in his sexual assault on A.G. at Noria’s workplace.
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Therefore, we find that there was sufficient evidence supporting the jury’s finding that A.G. was
liable for at least two sexual assaults on A.G. Consequently, we overrule Noria’s first issue.
B. The Required Time Period Was Shown by Sufficient Evidence
At trial, A.G. testified that the assaults at his grandfather’s house and at Noria’s workplace
took place when he was eight years old and that the assault at Sergio’s house took place when he
was almost nine years old. In his forensic interview, A.G. maintained that he was seven or eight
when he was assaulted at his grandfather’s house and at Noria’s workplace and that he was eight
and one-half when assaulted at Sergio’s house. Noria argues that this inconsistency in A.G.’s
statements and the uncertainty of the timing of the assaults would prevent any rational jury from
concluding that the assaults took place during a period of thirty or more days. We disagree.
Under the statute, it is not required that the jury determine the exact dates that the acts of
sexual abuse occurred. TEX. PENAL CODE ANN. § 21.02(d) (West Supp. 2018). However, they
must agree that two or more acts of sexual abuse were committed during a period of time that was
thirty or more days in duration. Id. When the testimony is inconsistent or conflicting, we defer
to the jury to resolve any conflicts. Hooper, 214 S.W.3d at 13; Smith v. State, 397 S.W.3d 765,
769 (Tex. App.—San Antonio 2013, no pet.). Further, the testimony of a child victim, standing
alone, is sufficient to support a conviction for continuous sexual abuse of a child. TEX. CODE
CRIM. PROC. ANN. art. 38.07 (West Supp. 2018).
In this case, although A.G.’s trial testimony and forensic interview varied regarding how
old he was at the time of each assault, his statements were consistent in indicating a significant
time period between the assaults at his grandfather’s house and at Noria’s workplace and the
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subsequent assault at Sergio’s house. When he thought that the assaults at this grandfather’s house
and at Noria’s workplace happened when he was seven or eight, he placed the subsequent assault
to be when he was eight and one-half. Likewise, when he placed the first two assaults to be when
he was eight, he believed the third assault to be when he was almost nine.
In light of these statements, the jury could reasonably infer that the first two assaults
occurred at a time near A.G.’s eighth birthday and that the assault at Sergio’s house occurred
during the second half of A.G.’s eighth year, or near his ninth birthday. Thus, a rational jury could
reasonably infer that two or more assaults occurred during a period that was thirty or more days in
duration. Further, even if this evidence would also support an inference that the three assaults
occurred in a time period of less than thirty days, we presume that the jury resolved these
competing inferences in favor of its verdict, and we defer to that determination. Winfrey v. State,
393 S.W.3d 763, 774 (Tex. Crim. App. 2013).
Therefore, we find that sufficient evidence supported the jury finding that two or more acts
of sexual abuse were committed in a period of time that was thirty or more days in duration. We
overrule Noria’s second issue.
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For the reasons stated, we affirm the trial court’s judgment.
Ralph K. Burgess
Justice
Date Submitted: October 8, 2018
Date Decided: October 25, 2018
Do Not Publish
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