Jose Arriaza v. the State of Texas ( 2023 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-21-00128-CR
No. 02-21-00129-CR
___________________________
JOSE ARRIAZA, Appellant
V.
THE STATE OF TEXAS
On Appeal from the 16th District Court
Denton County, Texas
Trial Court Nos. F-2006-1489-A, F-2006-1490-A
Before Bassel, Womack, and Wallach, JJ.
Memorandum Opinion by Justice Wallach
MEMORANDUM OPINION
Appellant Jose Arriaza was convicted by a jury of aggravated sexual assault of a
child and indecency with a child, committed against victims J.C. and J.B. See Tex.
Penal Code Ann. §§ 21.11(a)(1), 22.021(a)(1)(A)(i), 22.021(a)(1)(A)(iii). Arriaza
received two sentences of twenty years and two sentences of forty-five years, all of
which were ordered to be served consecutively to each other.
In two points of error, Arriaza complains that the evidence was both factually
and legally insufficient to sustain his convictions. We overrule both points of error
and affirm the trial court’s judgments.
I. Background
J.C. was twenty-seven at the time of trial. About eighteen years before that she
lived in Carrollton. Arriaza is J.C.’s cousin on her mother’s side. She first met Arriaza
when she was seven or eight years old, and he was living with her aunt. The first time
Arriaza assaulted J.C., he touched her breast during a game of hide-and-go-seek at her
aunt’s house. She was too scared to tell anyone and did not want to visit her aunt’s
home in the future.
Eventually, Arriaza came to live in her house with her mother, stepdad, sisters,
and brother. It was in her home that, one night, J.C. woke up to find Arriaza on top
of her. He pulled down J.C.’s pants and put his penis into her vagina. J.C. was in
shock, to the extent that she was unable to scream out. She testified that this
happened two or three times.
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On another occasion, Arriaza pulled her into her brother’s room, told the
brother to leave, and then touched and squeezed J.C.’s breasts under her clothes. He
also grabbed her face and kissed her.
One instance was witnessed by J.C.’s brother. He was looking for Arriaza and
his sister and walked into his room. He opened the door and saw his sister on the bed
with her pants all the way down, and Arriaza was next to her wearing a condom. J.C.’s
brother attempted to defend her, and even wanted to hit Arriaza, but Arriaza
threatened him with a handgun.
J.B. is J.C.’s sister. When J.B. was five, Arriaza came to live at her home in
Carrollton. She testified that Arriaza would come into her bedroom at night and
“either choose between me and my sister who he would pick that night.” Arriaza
would regularly take J.B. from their room, carry her into her brother’s room, and put
her on the floor. He would then pull down her shorts, begin by touching her with his
fingers, and then put his penis on top of her vagina. Arriaza would also digitally
penetrate J.B. In another occurrence, despite J.B. trying to fight him off, Arriaza
forced his way through her bedroom door, pulled her pants down, masturbated, and
ejaculated on her vagina. In addition, Arriaza regularly molested J.B. by touching her.
Arriaza testified. He is from El Salvador. Arriaza said that, though he was in the
United States briefly, he returned to El Salvador in 2003 and remained there until
2019. He also denied sexually abusing J.C. and J.B. at any time while he was in the
country.
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II. Factual Sufficiency
In his first point of error, Arriaza complains that the evidence was factually
insufficient to sustain his conviction and sentence. However, the court of criminal
appeals has held that there is no meaningful distinction between the legal sufficiency
standard and the factual sufficiency standard. Brooks v. State, 323 S.W.3d 893, 895
(Tex. Crim. App. 2010) (overruling Clewis v. State, 922 S.W.2d 126, 131–32 (Tex. Crim.
App. 1996)). We therefore overrule Arriaza’s first point of error and will only consider
his legal sufficiency claim.
III. Legal Sufficiency
Arriaza’s second point of error attacks the legal sufficiency of the evidence. In
our evidentiary-sufficiency review, we view all the evidence in the light most favorable
to the verdict to determine whether any rational factfinder could have found the
crime’s essential elements beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307,
319, 99 S. Ct. 2781, 2789 (1979); Queeman v. State, 520 S.W.3d 616, 622 (Tex. Crim.
App. 2017).
This standard gives full play to the factfinder’s responsibility to resolve
conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences
from basic facts to ultimate facts. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789;
Queeman, 520 S.W.3d at 622.
The factfinder alone judges the evidence’s weight and credibility. See Tex. Code
Crim. Proc. Ann. art. 38.04; Queeman, 520 S.W.3d at 622. We may not re-evaluate the
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evidence’s weight and credibility and substitute our judgment for the factfinder’s.
Queeman, 520 S.W.3d at 622. Instead, we determine whether the necessary inferences
are reasonable based on the evidence’s cumulative force when viewed in the light
most favorable to the verdict. Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App.
2015). We must presume that the factfinder resolved any conflicting inferences in
favor of the verdict, and we must defer to that resolution. Id. at 448–49.
Arriaza complains that his own testimony contradicted that of the victims and
that others in the house could not say definitively that Arriaza lived in the home when
the assaults occurred. Here, the victims testified to several acts of sexual abuse that
took place. The testimony of a child victim alone is sufficient to support a conviction
for aggravated sexual assault. Gonzales v. State, 477 S.W.3d 475, 480 (Tex. App.—Fort
Worth 2015, pet. ref’d). In addition, J.C.’s brother—who was an eyewitness to the
aftermath of at least one of the assaults—corroborated J.C.’s testimony.
As for Arriaza’s claim that he was in El Salvador when these assaults occurred,
it is always the jury’s prerogative to disbelieve any defendant’s testimony. See Taylor v.
State, 774 S.W.2d 31, 33 (Tex. App.—Houston [14th Dist.] 1989, pet. ref’d); see also
Murray, 457 S.W.3d at 448–49. Accordingly, in our sufficiency review, any
inconsistencies in the testimony should be resolved in favor of the jury’s verdict.
Johnson v. State, 815 S.W.2d 707, 712 (Tex. Crim. App. 1991).
In addition, Arriaza argues that none of the State’s witnesses could “accurately
testify” when and for how long he lived with the victims, thus the evidence fails to
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show that the offenses took place “on or about September 2003” as alleged.1
However, unless the date is a material element of the offense, it is not necessary for an
indictment to specify the precise date on which the charged offense occurred. See
Garcia v. State, 981 S.W.2d 683, 685–86 (Tex. Crim. App. 1998). And with regard to
young children, the court of criminal appeals has “cautioned that courts cannot
impose unrealistic expectations regarding poof of when an offense actually occurred:
‘[I]t is not often that a child knows, even within a few days, the date that she was
sexually assaulted.’” Dixon v. State, 201 S.W.3d 731, 736 (Tex. Crim. App. 2006)
(quoting Sledge v. State, 953 S.W.2d 253, 256 n.8 (Tex. Crim. App. 1997)).
In any event, the victims’ testimony demonstrates that at least some of the
sexual abuse committed by Arriaza occurred in 2003. The prosecutor asked J.C. to
recount what happened “around the time period of roughly 2003.” J.C. then described
how Arriaza assaulted her at her aunt’s house. She also said that the sexual assaults
occurred when she was around eight—which would have been approximately from
2002 to early 2003. As for J.B., she testified that she was five years old in August and
September of 2003 and that Arriaza’s abuse of her took place when she was five or
six. We therefore hold that a rational trier of fact could have found that Arriaza
sexually abused both victims on or about the dates alleged in the indictments.
1
Actually, the offenses against J.C. were alleged to have been committed on or
about August 15, 2003. The offenses against J.B. were alleged to have been committed
on or about September 1, 2003 (indecency) and August 15, 2003 (aggravated sexual
assault).
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IV. Conclusion
Having overruled Arriaza’s two points of error, we affirm the trial court’s
judgments.
/s/ Mike Wallach
Mike Wallach
Justice
Do Not Publish
Tex. R. App. P. 47.2(b)
Delivered: April 6, 2023
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