Antonio Perez v. State ( 2011 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-10-00493-CR
ANTONIO PEREZ APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY
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MEMORANDUM OPINION1
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I. INTRODUCTION
Appellant Antonio Perez appeals his convictions for one count of
aggravated sexual assault of a child younger than fourteen years of age and one
count of indecency with a child. In one issue, Perez argues that the evidence
was insufficient to support his convictions. We will affirm.
1
See Tex. R. App. P. 47.4.
II. FACTUAL AND PROCEDURAL BACKGROUND
On January 8, 2007, just after school resumed from Christmas break,
Riverside Middle School’s orchestra director, Jack Lee Henson Jr., noticed N.L.
and her friend standing in the back of the classroom, acting like they wanted to
talk to him. N.L. was twelve years old at the time. She was sobbing and visibly
shaken. Henson took the girls into an adjacent room, where N.L. confided that
her uncle, Perez, had been touching her for the past seven years and that he had
touched her during that Christmas break. Henson asked N.L. if Perez had
touched her in a private area that he should not have touched, and she nodded
her head in agreement. She told Henson that Perez had threatened to harm her
family if she told anyone. Henson told the school’s counselor and CPS what N.L.
had told him.
A Cook Children’s Hospital nurse conducted a sexual assault examination
on N.L., and a Child Protective Services employee interviewed N.L. During the
interview, N.L. said that Perez had sexually assaulted her over fifty times and
detailed several incidents of sexual assault or inappropriate behavior by Perez.
At Perez’s trial over three years after the interview, N.L. testified that she could
remember only a few incidents and that, contrary to what she had said in her
interview, she did not recall him touching her sexual organ with his hand or
licking her breasts. N.L. said that she was telling the truth during that interview
but that she had ―tried to take it out of [her] mind so [she] wouldn’t remember it.‖
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Perez was charged with three counts of aggravated sexual assault of a
child and with one count of indecency with a child. At trial, N.L.’s mother Martina
testified that Perez is her sister’s husband. Martina said that her sister and Perez
had lived with her and her family for about three months in 2002, when N.L. was
eight years old. The Perezes moved into a nearby house that year and lived
there until 2009. Martina first learned from N.L.’s school counselor that Perez
had sexually assaulted N.L. Prior to that, Martina had no knowledge about the
sexual assaults, but she recalled at trial that N.L. would cross her arms over her
chest when she was around Perez and that she had told her mother that she did
not want to go near him. Martina also testified that during Thanksgiving 2006,
when N.L. was twelve years old, N.L. and her brother George went to Perez’s
house to borrow a pan for Martina to use to make tamales. George returned
home without N.L., and N.L. later arrived with Perez. When they arrived, Perez
told Martina that N.L. had stepped on the gas pedal while he was driving, and
N.L. was scolded.
Martina testified that, to her knowledge, there was never a time when
Perez and N.L. were alone together while Perez was living in Martina’s house
and that, after Perez moved out, he never babysat N.L. She further testified,
however, ―I don’t know how he would do it when we were at our house but it
would seem that everybody would have to go outside and it was just him and
[N.L.] in the house.‖ The only specific time that Martina recalled Perez and N.L.
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being alone together was Thanksgiving 2006, when Perez drove N.L. home from
his house.
N.L. was fifteen at the time of Perez’s trial. She testified that Perez had
touched her ―[a] lot of times‖ in a way that she did not like, but she could only
recall four specific incidents in detail. N.L. testified that Perez had once told her
that if she told ―anybody about anything,‖ he would ―do something to [her] family.‖
N.L. was four or five years old at the time of the first incident; they were in his
room, and Perez took out his penis and masturbated in front of her. The next
incident that she recalled occurred when she was six or seven years old; Perez
took her to the bathroom, kissed her, and touched her breasts under her clothes.
He heard a noise and told her to be quiet; when he did not hear the noise again,
they left the bathroom. The next incident that N.L. recalled was the Thanksgiving
incident when she was about nine or ten years old. Her brother George drove
her over to Perez’s house to pick up a pan for tamales, and when they were
leaving, Perez told N.L. that he needed help finding his keys. George left to go
home, and N.L. stayed to look for Perez’s keys. Perez told her to go look in his
bedroom, and he followed her. He pushed her onto the bed, took off her pants
and underwear, took out his penis, and tried to put it inside her female sexual
organ. N.L. told him to stop and tried to push him away. Perez grabbed N.L.’s
hand and tried to put it on his penis. After again trying to put his penis inside her
female sexual organ, he stopped, N.L. ran out of the room with her clothes, she
dressed, and she got in his car. On the way back to her house with Perez, he
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told her to sit close to him; he tried to grab her breasts so she stepped on the gas
pedal to make him stop. He yelled at her, and when they got to her house, her
mother got mad at her too. N.L. also testified about an incident during a
Christmas party at her house when she was in the sixth grade; she was alone in
the back room watching T.V. when Perez went into the room. He sat on the bed
next to her, put his hand under the covers, and touched her breasts over and
under her clothes. N.L. began talking about the T.V. show that she was watching
to try to make him stop, and she commented that the man on T.V. was gay.
Perez asked her if she knew what that meant, and when N.L. said that she did
not, Perez explained that a man is gay ―if he sees a girl and he doesn’t get hard.‖
When asked to identify Perez in the courtroom, N.L. said that she did not
see him. However, during recess, she talked with the prosecutor, and N.L. later
identified Perez during redirect. She explained that she did not recognize him
initially because she had not seen him for three or four years and that he looks
different: ―He wears glasses now. He looks a lot older and shorter.‖
N.L.’s brother George testified that he had never noticed anything strange
about N.L and Perez’s interactions but that, looking back on it, Perez was always
more affectionate with N.L. than with her siblings and was often alone with her.
George recalled that when he and his siblings were with Perez, Perez would
send them out for ice cream or a drink, and N.L. would stay behind. George
testified that on Thanksgiving 2006 when he went to Perez’s house to borrow the
tamale pan, N.L. did not want to go with him but that he ―kind of forced [her]‖ by
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begging her to go. According to George, Perez looked different at the time of
trial than he did in 2006, had aged, was losing his hair, and ―just looks worried.‖
At the conclusion of the State’s case-in-chief, the State waived one count
of aggravated sexual assault.2
Perez’s wife Celia Perez Rodriquez testified for the defense. She said that
on Christmas 2006, she and Perez went to Martina’s house around 11:30 p.m.
and that, during their two-hour visit, Perez was never alone with N.L. According
to Celia, Perez sat at the dining room table the entire time. Celia also testified
that she had witnessed two incidents between N.L. and Martina’s long-time
boyfriend Javier that caused Celia to believe that Javier was the man who had
touched N.L. inappropriately. One time, in front of Celia, N.L. came out of the
bathroom with a towel wrapped around her, and Javier lifted up the towel; when
N.L. told Javier not to do that, he responded that he knew her, ―even from [her]
behind.‖ During the second incident, Javier asked N.L. for the gum that she was
chewing, and she moved close to him and spit the gum from her mouth into his
mouth; it appeared to Celia that N.L. was kissing Javier.
The trial court found Perez guilty of one count of aggravated sexual assault
of a child by contact (count one) and one count of indecency with a child (count
four). The trial court found Perez not guilty of the second paragraph of count
2
The State waived that count because it alleged that Perez intentionally or
knowingly caused his sexual organ to contact N.L.’s hand, which does not
constitute aggravated sexual assault under the penal code. See Tex. Penal
Code Ann. § 22.021 (West 2011).
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one, charging Perez with aggravated sexual assault of a child by threats and
placing in fear, and of the remaining count for aggravated sexual assault by
threats and placing in fear (count three). The trial court assessed punishment at
twenty-five years’ confinement on the aggravated sexual assault count and at
twenty years’ confinement on the indecency count, and it ordered that the
sentences run concurrently.
III. SUFFICIENCY OF THE EVIDENCE
In his sole issue, Perez argues that the evidence was legally and factually
insufficient to support his conviction. Because the Texas Court of Criminal
Appeals held in Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010),
that there is no meaningful distinction between the factual sufficiency standard
and the legal sufficiency standard, we analyze Perez’s insufficiency arguments
under only the legal sufficiency standard.
A. Legal Sufficiency Standard of Review
In our due-process review of the sufficiency of the evidence to support a
conviction, we view all of the evidence in the light most favorable to the
prosecution to 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, 319, 99 S. Ct. 2781, 2789 (1979); Clayton v. State, 235 S.W.3d
772, 778 (Tex. Crim. App. 2007).
This standard gives full play to the responsibility of the trier of fact to
resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable
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inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319, 99 S. Ct.
at 2789; Clayton, 235 S.W.3d at 778. The trier of fact is the sole judge of the
weight and credibility of the evidence. See Tex. Code Crim. Proc. Ann. art. 38.04
(West 1979); Brown v. State, 270 S.W.3d 564, 568 (Tex. Crim. App. 2008), cert.
denied, 129 S. Ct. 2075 (2009). Thus, when performing an evidentiary
sufficiency review, we may not re-evaluate the weight and credibility of the
evidence and substitute our judgment for that of the factfinder. Williams v. State,
235 S.W.3d 742, 750 (Tex. Crim. App. 2007). Instead, we determine ―whether
the necessary inferences are reasonable based upon the combined and
cumulative force of all the evidence when viewed in the light most favorable to
the verdict.@ Hooper v. State, 214 S.W.3d 9, 16–17 (Tex. Crim. App. 2007). We
must presume that the factfinder resolved any conflicting inferences in favor of
the prosecution and defer to that resolution. Jackson, 443 U.S. at 326, 99 S. Ct.
at 2793; Clayton, 235 S.W.3d at 778. The standard of review is the same for
direct and circumstantial evidence cases; circumstantial evidence is as probative
as direct evidence in establishing the guilt of an actor. Clayton, 235 S.W.3d at
778; Hooper, 214 S.W.3d at 13.
B. Aggravated Sexual Assault of a Child and Indecency with a Child
A person commits aggravated sexual assault of a child when that person
intentionally or knowingly causes the child’s sexual organ to contact the mouth,
anus, or sexual organ of another person, and the child is under fourteen years of
age. See Tex. Penal Code Ann. § 22.021(a)(1)(B)(iii), (a)(2)(B).
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A person commits indecency with a child under seventeen years of age
when that person engages in sexual contact with the child or causes the child to
engage in sexual contact, or when that person, with intent to arouse or gratify the
sexual desire of any person, exposes the person’s anus or any part of the
person’s genitals, knowing the child is present or causes the child to expose the
child’s anus or any part of the child’s genitals. Id. § 21.11 (West 2011).
Here, Perez was convicted of aggravated sexual assault of a child under
fourteen years of age by causing N.L.’s female sexual organ to contact his sexual
organ. He was convicted of indecency with a child by touching N.L.’s breasts.
C. The Evidence was Sufficient
Perez acknowledges that a child victim’s testimony, standing alone, is
sufficient to support a conviction for sexual assault. See, e.g., Garcia v. State,
563 S.W.2d 925, 928 (Tex. Crim. App. [Panel Op.] 1978); West v. State, 121
S.W.3d 95, 111 (Tex. App.—Fort Worth 2003, pet. ref’d). However, Perez
argues that N.L.’s testimony was not sufficient to support his conviction because
it was ―fraught with contradictions, revisions, and retractions.‖ N.L. testified in
detail about four separate incidents, including the Thanksgiving 2006 incident in
which Perez attempted to insert his sexual organ into her female sexual organ,
and including the Christmas 2006 incident, when he touched her breasts over
and under her shirt while she was lying in bed. N.L.’s testimony alone constitutes
legally sufficient evidence to support Perez’s convictions for aggravated sexual
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assault of a child under fourteen years of age and for indecency with a child. 3
See, e.g., Garcia, 563 S.W.2d at 928; West, 121 S.W.3d at 111; see also Tex.
Penal Code Ann. §§ 21.11, 22.021(a)(1)(B)(iii), (a)(2)(B).
N.L.’s testimony was corroborated by the testimony of her mother Martina,
who explained that N.L. was alone with Perez on Thanksgiving 2006 and that
N.L. did not want to be around Perez. And N.L.’s brother George testified that
Perez was always more affectionate with N.L. than with her siblings and often
sent her siblings out of the house while N.L. stayed behind with Perez.
Perez argues that ―[t]he clearest exculpatory evidence‖ was N.L.’s failure
to initially identify Perez at trial. However, she ultimately identified him and
explained that he looked different than he had the last time that she had seen
him three or four years prior to trial. George also testified that Perez looked
different at trial than he had three years prior. And even if N.L. had not been able
to identify Perez at trial, she testified that she was sexually assaulted by her
uncle Antonio Perez, and her family members corroborated that Perez is her
3
The State did not elect which acts by Perez that the State intended to rely
on for convictions, nor was it required to do so because Perez did not request
such an election. See Phillips v. State, 193 S.W.3d 904, 909–10 (Tex. Crim.
App. 2006); Mayo v. State, 17 S.W.3d 291, 298 (Tex. App.—Fort Worth 2000,
pet. ref’d). Additionally, the State was not bound by the dates alleged in the
indictment and could have proved that an offense was committed before, on, or
after the dates alleged, so long as the dates proved were anterior to presentment
of indictment and within the statutory limitation period. E.g., Scoggan v. State,
799 S.W.2d 679, 680–681 (Tex. Crim. App. 1990); see also Tex. Code Crim.
Proc. Ann. art. 12.01(1)(B), (E) (West 2011) (providing that offenses under penal
code sections 22.021(a)(1)(B) and 21.11 have no limitation period).
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uncle. N.L.’s in-court identification of Perez was not necessary for his conviction.
See Earls v. State, 707 S.W.2d 82, 85 (Tex. Crim. App. 1986) (explaining that
identity of perpetrator may be proven by direct or circumstantial evidence);
Couchman v. State, 3 S.W.3d 155, 162 (Tex. App.—Fort Worth 1999, pet. ref’d)
(holding that evidence was sufficient to support conviction when victim failed to
identify defendant in court but testified that ―Tony‖ had touched her
inappropriately).
Viewing the evidence in the light most favorable to the jury’s verdict, we
hold that a rational trier of fact could have found beyond a reasonable doubt that
Perez committed aggravated sexual assault of a child and indecency with a child
as charged in count one and count four of the indictment. See Jackson, 443 U.S.
at 326, 99 S. Ct. at 2793; Clayton, 235 S.W.3d at 778. That is, based on the
evidence presented at trial, a rational jury could have concluded that Perez
intentionally or knowingly caused N.L.’s female sexual organ to contact his
sexual organ and that Perez engaged in sexual contact with N.L. by touching her
breasts. See Tex. Penal Code Ann. §§ 21.11, 22.021(a)(1)(B)(iii), (a)(2)(B).
Accordingly, we overrule Perez’s sole issue.
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IV. CONCLUSION
Having overruled Perez’s sole issue, we affirm the trial court’s judgment.
PER CURIAM
PANEL: WALKER, MCCOY, and GABRIEL, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: July 14, 2011
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