Victor Mendoza v. State of Texas ( 2010 )

Opinion filed April 22, 2010
In The
Eleventh Court of Appeals
__________
No. 11-08-00245-CR
__________
VICTOR MENDOZA, Appellant
V.
STATE OF TEXAS, Appellee
On Appeal from the 238th District Court
Midland County, Texas
Trial Court Cause No. CR33457
MEMORANDUM OPINION
The jury convicted Victor Mendoza of two counts of aggravated sexual assault of a child
and two counts of indecency with a child and assessed his punishment at twenty years
confinement on each aggravated sexual assault count, ten years confinement for one indecency
count, and five years confinement for the other. The trial court ordered that both twenty-year
sentences and the five-year sentence run concurrently and that the ten-year sentence would begin
upon completion of those sentences. We affirm.
I. Background Facts
In late 2006, Mendoza lived in Midland with his daughter, granddaughter-in-law, and two
great-granddaughters, J.M. and D.M. During this time, another great-granddaughter, M.M.,
frequently visited the residence. J.M.’s school contacted her mother and the Midland Police
Department concerned about possible child abuse. D.M. and M.M. sat for forensic interviews at
Midland Children’s Advocacy Center. D.M. disclosed that her “grandfather” kissed her “in the
mouth” and licked and bit her “private.” D.M. also described how her grandfather exposed
himself to her. M.M. disclosed in her interview that Mendoza stuck his tongue into her genitals.
Mendoza was indicted by the grand jury on four separate counts. The first two alleged
that Mendoza penetrated M.M.’s sexual organ and mouth. Counts Three and Four alleged that
he touched D.M.’s genitals and exposed his genitals to her.
II. Issues Presented
Mendoza presents two issues on appeal. He challenges the legal and factual sufficiency
of the evidence that he touched a part of D.M.’s genitals and of the evidence identifying him as
the individual responsible for the acts described in Counts Three and Four.
III. Legal & Factual Sufficiency
To determine if the evidence is legally sufficient, we must review all of 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 crime beyond a reasonable doubt. Jackson v. Virginia, 443
U.S. 307 (1979); Jackson v. State, 17 S.W.3d 664 (Tex. Crim. App. 2000). To determine if the
evidence is factually sufficient, we must review all the evidence in a neutral light and determine
whether the evidence supporting the verdict is so weak that the verdict is clearly wrong and
manifestly unjust or whether the verdict is against the great weight and preponderance of the
conflicting evidence. Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006).
A. Was There Sufficient Evidence that Mendoza Touched the Genitals of a Child?
Andra Kay Chamberlin, an employee with the Children’s Advocacy Center and the
designated outcry witness, testified that she interviewed D.M. At the time, D.M. was six years
old. D.M. told her that Mendoza kissed her in the mouth and licked and bit her private and that it
hurt when he bit her. During the interview, D.M. circled the genital area on a female drawing to
demonstrate where her private was. She also told Chamberlin that she saw Mendoza’s “wee
wee,” described it as black and hairy, and said that Mendoza told her to lick it. D.M. also
testified at trial. She was given a drawing of a girl with no clothes and was asked to draw a
circle where Mendoza touched her. She drew a circle around the figure’s genital area.
The State was required to prove beyond a reasonable doubt that Mendoza committed
indecency with D.M. by engaging her in sexual contact. TEX. PENAL CODE ANN. § 21.11
(Vernon Supp. 2009). Sexual contact is defined as touching the anus, breast, or any part of the
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genitals of another person with the intent to arouse or gratify the sexual desire of any person.
TEX. PENAL CODE ANN. § 21.01 (Vernon Supp. 2009). Mendoza complains that D.M.’s circling
of the genital area on an anatomical drawing does not support the finding that he touched any
part of her genitals because this would allow a conviction for touching D.M.’s thigh or abdomen.
Mendoza relies primarily upon Nelson v. State, 505 S.W.2d 551, 552 (Tex. Crim. App. 1974)
(reversing fondling conviction because the term “chest” is patently broader than “breast”) to
argue that D.M.’s drawing was insufficient.
When the victim is a child, their use of unsophisticated language must be considered. See
Clark v. State, 558 S.W.2d 887, 889 (Tex. Crim. App. 1977) (explaining the inherent difficulties
regarding the testimony of child sexual abuse victims because the child often lacks the technical
knowledge to accurately describe her body). Texas courts have repeatedly upheld convictions
where the child victim used imprecise terms. See id. (holding evidence sufficient to show sexual
contact where complainant testified appellant touched her “front butt”); Thomas v. State, 399
S.W.2d 555, 556 (Tex. Crim. App. 1966) (“privates” sufficient); Scott v. State, 202 S.W.3d 405,
410 (Tex. App.—Texarkana 2006, pet. ref’d) (“private areas” sufficient); Bryant v. State, 685
S.W.2d 472, 475 (Tex. App.—Fort Wort 1985, pet. ref’d) (“between [the] legs” sufficient).
Applying this principle to D.M.’s drawing, the jury was entitled to give consideration to
her age when determining whether Mendoza engaged in sexual contact. We note that D.M. drew
a relatively small circle around the figure’s vagina. We note also that D.M. referred to the
genital area as the place “where you peed” and that she told Chamberlin that Mendoza “had
licked her private and that he had bitten her private and it hurt.” The evidence was legally and
factually sufficient to support the jury’s conclusion that Mendoza engaged in sexual contact with
D.M. as charged in Count Three. Mendoza’s first issue is overruled.
B. Was the State’s Identification Evidence Sufficient?
Mendoza also argues that there is insufficient evidence identifying him as the person
charged by the State in Counts Three and Four of the indictment. Identification of the defendant
as the person who committed the offense charged is part of the State’s burden of proof beyond a
reasonable doubt. Miller v. State, 667 S.W.2d 773, 775 (Tex. Crim. App. 1984). When a
defendant contests the identity element of the offense, we are mindful that identity may be
proven by direct evidence, circumstantial evidence, or even inferences. Roberson v. State, 16
S.W.3d 156, 167 (Tex. App.—Austin 2000, pet. ref’d). Although the preferred procedure is for
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the prosecutor to request notation in the record of an in-court identification, it is not required to
sustain a jury’s guilty verdict. Rohlfing v. State, 612 S.W.2d 598, 601 (Tex. Crim. App. 1981).
Instead, we look to see if the totality of the circumstances indicates that the jury was adequately
apprised that the witnesses were referring to the appellant. Id.
Mendoza claims he was not properly identified in court because the record does not
document an in-court identification and because his great-granddaughter, D.M., identified the
perpetrator as “Grandpa.” The State asked D.M. if the person who touched her inappropriately
was in the courtroom. She responded yes and then the following transpired:
Q. Okay. Are they in here? Now, are you a little nervous to talk about
that person? Does that make you kind of scared?
A. Uh-huh.
Q. Well, what I need to do, D.M., is just so we can maybe find out who
you’re talking about, I’m just going to walk over to another part of the room, and
I want you [to] tell us if I’m walking in the direction where that person is, okay?
If I walk over here, is that where that person is?
A. No.
Q. How about if I walk over this way, is that where that person is?
A. I don’t know.
Q. You don’t know? If I walk all the way over here, is that where that
person is? Can you see where I am?
A. Yes.
Q. Okay. Is that where that person is?
A. (Nods Head Affirmatively)
Q. Okay. Is it the person that I’m standing right here by? And you’re
shaking your head up and down, D.M. Is that a yes?
A. Yes.
Mendoza complains that this vague reference to an unknown person is insufficient. The State
acknowledges that it did not seek a notation of identification in the record but asks that we
consider D.M.’s testimony in conjunction with the other identification evidence.
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Several important facts make clear that, when D.M. identified the perpetrator as her
“Grandpa,” she was referring to Mendoza and not a biological grandfather. First, it was
established that, during the alleged time of the offense, Mendoza and D.M. lived in the same
house and that Mendoza was often the only adult in the house with D.M. and M.M.
Significantly, M.M. also identified Mendoza as “Grandpa” and not as her great-grandfather.
M.M. also pointed to her Grandpa, and the prosecutor used the talismanic phrase to have the
identification recorded.
Additionally, D.M. disclosed during her forensic interview that she had been abused by
“Victor Mendoza.” When questioned by the prosecutor, the mothers of the victims affirmatively
answered that they knew Victor Mendoza and that he was in the courtroom and proceeded to
identify him as the man wearing a black vest.
Finally, considering the totality of the circumstances, there is no substantial likelihood of
misidentification. See Cooks v. State, 844 S.W.2d 697, 731 (Tex. Crim. App. 1992)
(identification testimony is considered reliable when the totality of the circumstances shows no
likelihood of misidentification). There was no controverting identification evidence or
suggestion that anyone else was responsible for the charged acts; but, instead, the evidence
consistently referred to Mendoza as the perpetrator. Cf. Wiggins v. State, 255 S.W.3d 766, 772
(Tex. App.—Texarkana 2008, no pet.) (affirming conviction despite the lack of a positive
identification where both counsel repeatedly referred to the defendant as the accused and there
was no controverting evidence).
The evidence is legally and factually sufficient to identify Mendoza as the charged indi-
vidual and to sustain the jury’s verdict. We are convinced that the jury was adequately apprised
that the witnesses were referring to Mendoza, and we overrule his second issue.
IV. Conclusion
The judgment of the trial court is affirmed.
April 22, 2010 RICK STRANGE
Do not publish. See TEX. R. APP. P. 47.2(b). JUSTICE
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.
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