Raul Lopez v. State ( 2020 )

NO. 12-19-00314-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
RAUL LOPEZ, § APPEAL FROM THE 114TH
APPELLANT
V. § JUDICIAL DISTRICT COURT
THE STATE OF TEXAS,
APPELLEE § SMITH COUNTY, TEXAS
MEMORANDUM OPINION
Raul Lopez appeals his conviction for continuous sexual abuse of a child. Appellant
raises two issues on appeal. We affirm.
BACKGROUND
Appellant is the victim’s uncle. According to the victim, Appellant first touched her in a
sexual manner while they sat in his vehicle when she was approximately in the fifth grade. The
sexual abuse escalated a few months later into penetration of her sexual organ. These acts
continued to occur once or twice a week throughout her fifth and sixth grade year.
At the time, Appellant resided at his girlfriend’s apartment, while the victim resided with
her grandparents, along with her aunt and uncle and their nine children in a small home. 1
Appellant ceased his relationship with his girlfriend, and after living alone or with his child for a
period of time, he moved into the same home where the victim resided during her seventh grade
year prior to her fourteenth birthday. Because of the home’s small size and the large number of
people living there, Appellant and the victim shared sleeping quarters in the living room, where
the victim slept on a bed while Appellant slept on the sofa. Once Appellant moved into the
home, he continued to commit various acts of sexual abuse on a near nightly basis. Furthermore,
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The victim’s aunt and uncle eventually had a tenth child, who also resided at the home.
numerous acts of abuse occurred in Appellant’s vehicle throughout this time period. These acts
continued until two weeks prior to the victim’s outcry when she was sixteen years old.
According to the victim, Appellant also forced her to consume a “Plan B” pill and drink an
herbal tea formulated to abort any possible pregnancy.
When the victim was in high school, she eventually disclosed the abuse to her boyfriend.
Her boyfriend told his mother, who is also the victim’s employer. Her boyfriend’s mother
notified the authorities. A forensic interviewer at the Children’s Advocacy Center subsequently
interviewed the victim, who described the abuse. The victim told the interviewer that after the
abuse began, Appellant required her to perform sexual acts or alternatively send him nude photos
of her in exchange for gifts he purchased for her. The victim told the interviewer that she sent
the photos to Appellant on an iPad that he purchased for her because this would temporarily
relieve her of having to perform physical sexual acts with Appellant. During the course of the
investigation, Appellant learned that the victim disclosed the nature of the abuse, and the victim
later explained that he struck her in the face and threatened to “end” her, as well as threatened to
kill her boyfriend and “take his head off.”
Based on the information gathered in the forensic interview, the police interviewed
Appellant, who after initially denying any wrongdoing, ultimately admitted that he had sex with
the victim on one occasion after she allegedly seduced him. He also consented to a search of his
cell phone, which revealed nude photographs of the victim. The search of the phone also
revealed messages Appellant sent to the victim such as “Why don’t you love me anymore,” and
“You are what I want.”
Based on this information, the authorities later obtained a warrant and went to arrest
Appellant, who spoke only Spanish. When the police arrested Appellant, an officer present to
translate into Spanish the execution of the warrant told Appellant that they were there to arrest
him for sexual assault of a child. The officer later explained at the ensuing trial that there is no
direct translation for “sexual assault” in Spanish, and that the word or phrase used is more akin to
an assault through physical violence such as strikes. The officer stated that Appellant replied in
Spanish that he did not assault anyone, and that the sexual relationship was “consensual.”
Furthermore, the officer asked Appellant, “Didn’t you know she was underage?” Appellant
replied, “Yes.”
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Appellant was indicted for continuous sexual abuse of a child. Appellant pleaded “not
guilty” to the offense and the matter proceeded to a jury trial. The court’s charge included not
only the offense of continuous sexual abuse of a child, but also the lesser included offense of
aggravated sexual assault of a child. The jury ultimately found Appellant guilty of the
continuous sexual abuse of a child offense and sentenced him to imprisonment for life. This
appeal followed.
SUFFICIENCY OF THE EVIDENCE
In his first issue, Appellant argues that the evidence is insufficient to support the verdict
due to conflicting evidence regarding the victim’s veracity.
Standard of Review
An appellate court reviews a challenge to the sufficiency of the evidence under the
standard of review set forth in Jackson v. Virginia. 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61
L. Ed. 2d 560 (1979); Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010). A
challenge to the sufficiency of the evidence requires the reviewing court to consider the evidence
in the light most favorable to the verdict to determine whether any rational trier of fact could
have found all the elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319,
99 S. Ct. at 2789; Brooks, 323 S.W.3d at 895. The jury is the exclusive judge of the credibility
of the witnesses and the weight to be given their testimony, and the reconciliation of conflicts in
the evidence. Whitaker v. State, 977 S.W.2d 595, 598 (Tex. Crim. App. 1998). “When the
record supports conflicting inferences, we presume that the fact finder resolved the conflicts in
favor of the prosecution and therefore defer to that determination.” Clayton v. State, 235 S.W.3d
772, 778 (Tex. Crim. App. 2007). Direct and circumstantial evidence are treated equally. Id.
Circumstantial evidence is as probative as direct evidence in establishing the guilt of an actor,
and circumstantial evidence alone can be sufficient to establish guilt. Hooper v. State, 214
S.W.3d 9, 13 (Tex. Crim. App. 2007).
The 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). A “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
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unnecessarily restrict the State’s theories of liability, and adequately describes the particular
offense for which the defendant was tried.” Id.
Applicable Law
To establish the offense of continuous sexual abuse of a child, the State must prove that
the defendant, during a period of time thirty or more days in duration, committed at least two
acts of sexual abuse against a child younger than fourteen years of age, while he was at least
seventeen years of age at the time of each of the acts. See TEX. PENAL CODE ANN. § 21.02(b)
(West 2019). In relevant part, an “act of sexual abuse” is defined as including an act that
constitutes the offense of indecency with a child by contact, sexual assault, and aggravated
sexual assault. Id. § 21.02(c)(2)-(4); see id. § 21.11(a)(1), (c) (West 2019) (defining acts that
constitute indecency with a child by contact, including touching the genitals of a child); see id. §
22.011(a)(2)(A) (West Supp. 2020) (defining acts that constitute sexual assault of a child,
including causing penetration of child’s sexual organ by any means); see id. § 22.021(a)(1)(B)(i),
(a)(2)(B) (West 2019) (enumerating acts that constitute offense of aggravated sexual assault of a
child, including causing penetration of child’s sexual organ under the age of fourteen). The State
need not prove the exact dates of the abuse, only that “there were two or more acts of sexual
abuse that occurred during a period that was thirty or more days in duration.” Brown v. State,
381 S.W.3d 565, 574 (Tex. App.—Eastland 2012, no pet.); Lane v. State, 357 S.W.3d 770, 773–
74 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d) (stating that factfinder is not required to
agree on exact dates that acts of sexual abuse were committed).
Discussion
At the outset, we note that the victim testified unequivocally that Appellant committed
the offense of continuous sexual abuse of a child. Specifically, she testified that Appellant
committed numerous aggravated sexual assaults, sexual assaults, and indecency with a child by
contact offenses that took place over a period of thirty or more days when she was younger than
fourteen years of age and Appellant was at least seventeen years of age. The testimony of a child
victim, standing alone, is sufficient to support a conviction for continuous sexual abuse of a
child. See TEX. CODE CRIM. PROC. ANN. art. 38.07 (West Supp. 2019); see also Garner v. State,
523 S.W.3d 266, 271 (Tex. App.—Dallas 2017, no pet.).
Appellant nevertheless contends that the evidence conflicts regarding the victim’s
veracity. As part of this argument, Appellant points to testimony that the victim’s family did not
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believe her concerning the allegations she made against Appellant. Specifically, the victim’s
aunt, who is also Appellant’s sister, testified that the victim fabricated the abuse. She testified
that the home’s size, when coupled with the large number of people living there, shows that
Appellant and the victim could not have engaged in repeated sexual acts without someone
overhearing it. However, even with all the other people in the home, only Appellant and the
victim slept in the living room. The victim explained that Appellant waited until the family was
asleep and that he shut a door in the living room so that no one would hear them. Furthermore,
on cross-examination, the victim’s aunt admitted that she and her husband conceived three
children in the same home during this period and that the rest of the family would not have heard
them have sexual intercourse because they were asleep. Additionally, the victim testified that
many of the acts occurred in Appellant’s vehicle “over and over” throughout the relevant time
period.
The victim’s aunt also testified that the victim told her ten times that she falsified the
allegations so that she could obtain legal documents that would allow her to remain in the
country. The victim repeatedly denied that she fabricated the allegations or that anyone told her
that she would improve her immigration status by coming forward with the allegations. The
victim explained, and her aunt acknowledged, that the victim had applied for and obtained
Deferred Action for Childhood Arrivals (DACA) status prior to and independent of her outcry,
meaning that she would not be removed or deported from the country. Moreover, even though
the victim’s aunt testified that she did not believe the victim and that she believed the victim
falsified the allegations to obtain legal residency status, she admitted that Appellant confessed to
her in the hallway during a recess at trial that he had sex with the victim. In any event, the
credibility of the witnesses and the conflicts in the testimony between the victim and her aunt
were for the jury to resolve. See Hooper, 214 S.W.3d at 13. Furthermore, a child’s outcry
testimony, even if contradicted by other evidence or witnesses at trial, retains probative value
sufficient to prove the offense. See Bargas v. State, 252 S.W.3d 876, 888 (Tex. App.—Houston
[14th Dist.] 2008, no pet.).
Finally, Appellant admitted that he had sex with the victim, albeit on only one occasion.
However, he also admitted to the translating officer during his arrest that he did not assault
anyone, and that the relationship was consensual. Appellant also possessed nude photographs of
the victim on his phone, just as the victim had explained in her forensic interview. In light of all
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the circumstances, it was reasonable for the jury to conclude that the sexual abuse occurred more
than once to satisfy the statutory requirements for continuous sexual abuse of a child. See TEX.
PENAL CODE ANN. § 21.02 (describing statutory requirements to satisfy conviction for
continuous sexual abuse of a child). Accordingly, based on this record, we hold that a rational
jury could have found beyond a reasonable doubt that Appellant committed the offense of
continuous sexual abuse of a child. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Brooks, 323
S.W.3d at 895. Appellant’s first issue is overruled.
EXCLUSION OF TESTIMONY
In his second issue, Appellant contends that the trial court abused its discretion when it
excluded evidence regarding her motive for fabricating the accusations, namely, to achieve
lawful immigration status.
Standard of Review and Applicable Law
We review trial court decisions admitting or excluding evidence for an abuse of
discretion, and under this standard the trial court’s decision admitting or excluding evidence will
be upheld so long as it is within the “zone of reasonable disagreement.” Beham v. State, 559
S.W.3d 474, 478 (Tex. Crim. App. 2018).
Texas Rule of Evidence 401 provides that evidence is relevant if it has any tendency to
make a fact more or less probable than it would be without the evidence. TEX. R. EVID. 401.
“Generally, all relevant evidence is admissible.” Layton v. State, 280 S.W.3d 235, 240 (Tex.
Crim. App. 2009); TEX. R. EVID. 402. When determining whether evidence is relevant, it is
important for courts to examine the purpose for which the evidence is being introduced. Layton,
280 S.W.3d at 240. “It is critical that there is a direct or logical connection between the actual
evidence and the proposition sought to be proved.” Id.
Texas Rule of Evidence 403 provides that “[t]he court may exclude relevant evidence if
its probative value is substantially outweighed by a danger of one or more of the following:
unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting
cumulative evidence.” TEX. R. EVID. 403; Gonzalez v. State, 544 S.W.3d 363, 372 (Tex. Crim.
App. 2018). “The probative force of evidence refers to how strongly it serves to make the
existence of a fact of consequence more or less probable.” Id.
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 Relevant evidence is presumed to be more probative than prejudicial. Santellan v. State,
939 S.W.2d 155, 169 (Tex. Crim. App. 1997). All evidence against a defendant is, by its nature,
designed to be prejudicial. See Pawlak v. State, 420 S.W.3d 807, 811 (Tex. Crim. App. 2013).
Rule 403 does not exclude all prejudicial evidence; instead, it focuses on the danger of “unfair”
prejudice. State v. Mechler, 153 S.W.3d 435, 440 (Tex. Crim. App. 2005). Evidence is unfairly
prejudicial if it has the capacity to lure the factfinder into declaring guilt on a ground other than
proof specific to the offense charged. Manning v. State, 114 S.W.3d 922, 928 (Tex. Crim. App.
2003). The trial judge has substantial discretion in balancing probative value and unfair
prejudice. See Powell v. State, 189 S.W.3d 285, 288 (Tex. Crim. App. 2006).
A Rule 403 balancing test includes, but is not limited to, the following factors: (1) the
probative value of the evidence; (2) the potential to impress the jury in some irrational, yet
indelible way; (3) the time needed to develop the evidence; and (4) the proponent’s need for the
evidence. Hernandez v. State, 390 S.W.3d 310, 324 (Tex. Crim. App. 2012). A Rule 403
analysis may also consider whether there is any tendency of the evidence to confuse or distract
the jury from the main issues as well as any tendency of the evidence to be given undue weight
by a jury that has not been equipped to evaluate the probative force of the evidence.
See Gigliobianco v. State, 210 S.W.3d 637, 641 (Tex. Crim. App. 2006). “[T]hese factors may
well blend together in practice.” Id. at 641-42.
We review nonconstitutional error to determine whether it affected the defendant’s
substantial rights. TEX. R. APP. P. 44.2(b); Johnson v. State, 43 S.W.3d 1, 4 (Tex. Crim. App.
2001). An error affects a substantial right if it had a substantial and injurious effect or influence
on the verdict. King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). A nonconstitutional
error that does not affect substantial rights must be disregarded. TEX. R. APP. P. 44.2(b).
Discussion
In Tyler Police Department Detective Judson Moore’s investigative report, he wrote that
he asked the victim whether she was told by anyone that she could receive her immigration
papers in exchange for coming forward with the allegations against Appellant. She smiled and
nodded her head in response. Detective Moore noted in his report that this response initially
concerned him. After a hearing outside the jury’s presence, the trial court excluded this
evidence. Appellant argues that the trial court abused its discretion in this regard.
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Detective Moore testified at the hearing that he did not know what the victim was
thinking in response to this question. Rather, he stated that he needed to further investigate, and
either confirm or dispel his concern and determine whether the victim’s allegations were
credible. At the hearing, Detective Moore explained that any brief concern he may have had was
quickly dispelled upon completing his investigation. Therefore, the excluded evidence,
considered in its entirety, would not support the proposition that he now argues—that Detective
Moore remained concerned that the victim lied to improve her immigration status. Instead, the
actual evidence led to the opposite conclusion—that the victim delayed her disclosure of the
abuse because she feared being deported if she made an outcry, which is what her family and
Appellant repeatedly told her. Therefore, the probative value of the evidence and Appellant’s
need for it is slight, especially when considered in its proper context.
Furthermore, even if the trial court should have admitted the evidence, Appellant was not
harmed by its exclusion. First, it is undisputed that the victim’s DACA status prevents her
removal from the country irrespective of her cooperation in this criminal investigation. Second,
Appellant’s counsel questioned the victim extensively concerning her motive to fabricate the
allegations in order to obtain her lawful residency in the country. The jury also heard evidence
from the victim’s aunt, who testified that neither she nor the rest of her family believed the
victim’s allegations, and that they thought she fabricated the allegations in order to improve her
immigration status. When the trial court excludes evidence, and substantially the same or similar
evidence is admitted elsewhere, any error is harmless. See Mosley v. State, 983 S.W.2d 249, 258
(Tex. Crim. App. 1998) (op. on reh’g) (explaining that harm from the erroneous exclusion of
evidence may be mitigated by the admission of similar evidence). The trial court likewise
allowed defense counsel to argue to the jury that the victim fabricated the allegations in order to
obtain the lawful status to remain in the country. Finally, Appellant wanted to offer the evidence
to show that the victim falsified the allegations. Yet defense counsel also argued to the jury, due
to his admission of a single instance of sexual intercourse, that he is at most guilty of aggravated
sexual assault of a child, not continuous sexual abuse of a child. Appellant therefore
acknowledges with this jury argument that the allegations are not totally fabricated.
Accordingly, we hold that the trial court did not abuse its discretion in excluding the evidence.
Appellant’s second issue is overruled.
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DISPOSITION
Having overruled both of Appellant’s issues, we affirm the trial court’s judgment.
BRIAN HOYLE
Justice
Opinion delivered October 21, 2020.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
(DO NOT PUBLISH)
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COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
OCTOBER 21, 2020
NO. 12-19-00314-CR
RAUL LOPEZ,
Appellant
V.
THE STATE OF TEXAS,
Appellee
Appeal from the 114th District Court
of Smith County, Texas (Tr.Ct.No. 114-1583-18)
THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment of
the court below be in all things affirmed, and that this decision be certified to the court below
for observance.
Brian Hoyle, Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.