Alcenios Martinez (a/K/A Aucensio Lopez) v. State

• Court: Court of Appeals of Texas
• Decided: March 20, 2015
• Docket: 11-13-00080-CR
• Status: Published

Opinion

Opinion filed March 20, 2015

In The

Eleventh Court of Appeals __________

No. 11-13-00080-CR __________

ALCENIOS MARTINEZ (A/K/A AUCENSIO LOPEZ), Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 220th District Court Comanche County, Texas Trial Court Cause No. CR-03529

MEMORANDUM OPINION The jury found Alcenios Martinez, Appellant, guilty of the offense of continuous sexual abuse of a young child.1 The trial court assessed punishment at confinement for fifty years and sentenced Appellant accordingly. Appellant raises four issues on appeal. We affirm.

1 TEX. PENAL CODE ANN. § 21.02 (West Supp. 2014). I. The Charged Offense The grand jury returned an indictment against Appellant for the offense of continuous sexual abuse of a young child. A person commits the offense of continuous sexual abuse of a young child if: (1) during a period that is 30 or more days in duration, the person commits two or more acts of sexual abuse . . . and

(2) at the time of the commission of each of the acts of sexual abuse, the actor is 17 years of age or older and the victim is a child younger than 14 years of age.

TEX. PENAL CODE ANN. § 21.02(b) (West Supp. 2014). “Sexual abuse” includes aggravated sexual assault. Id. § 21.02(c)(4). A person commits the offense of aggravated sexual assault if the person “intentionally or knowingly . . . causes the penetration of the . . . sexual organ of a child by any means” and if “the victim is younger than 14 years of age.” Id. § 22.021(a)(1)(B)(i), (a)(2)(B). Continuous sexual abuse of a young child is a first-degree felony, punishable by imprisonment for life or for “any term of not more than 99 years or less than 25 years.” Id. § 21.02(h). II. Evidence at Trial Ken Maltby, a deputy sheriff with the Comanche County Sheriff’s Office, testified that he received a call from Chief James Elliot of the Ranger Police Department about an eleven-year-old girl that had been sexually assaulted. Deputy Maltby identified the victim as E.M. Deputy Maltby testified that E.M. was interviewed at the advocacy center in Eastland, Texas, and that he watched the interview from a closed circuit television. From the interview, he determined that E.M. was Appellant’s daughter and that she made allegations of sexual abuse against Appellant. Deputy Maltby obtained a warrant for Appellant’s arrest and subsequently arrested Appellant. He set up an appointment for E.M. with the

2 sexual assault nurse examiner (SANE) in Fort Worth at Cook Children’s Medical Center. E.M. identified Appellant as her father. She testified that her parents split up when she was eight years old and that she lived with her mother. E.M. testified that, in November 2010 when she was ten years old, she and her brother J.M. visited Appellant at his house on J.M.’s birthday. She said that she and her brother had their own bedrooms at Appellant’s house but that, on this occasion, Appellant’s coworker lived in J.M.’s room, and her room felt cold or hot and had “a bunch of cockroaches and stuff,” so both J.M. and E.M. slept in Appellant’s room. E.M. testified that they all slept in Appellant’s bed. She explained that Appellant slept on one side of the bed, that J.M. was in the middle, and that she slept on the other side of the bed. She testified she woke up that night when Appellant switched places with J.M. E.M. testified that Appellant subsequently pulled down her “sweats” and underwear, climbed on top of her, “put his penis into [her] vagina,” and “started humping [her].” She testified that neither of them said anything and that Appellant was “just breathing heavily.” E.M. testified she tried to move to make Appellant think she was “starting to wake up” so he would stop, “but he wouldn’t.” She said he eventually stopped and pulled her underwear and “sweats” up. J.M. was asleep the entire time this happened. E.M. testified that she fell asleep after the incident and that, in the morning, she found a “white substance” in her underwear that was “a bit wet.” Neither E.M. nor Appellant talked about what happened. E.M. testified she did not tell her mother what happened because she was “afraid” her mother would be mad at her “for not telling her anything.” E.M. testified that, several months after this incident, she saw Appellant again because she wanted him to buy her a phone. She said that, while she was asleep in Appellant’s pickup, he “reached over and started touching [her] breast.”

3 She moved “to the window side,” but neither she nor Appellant said anything. Nothing else happened that night when E.M. slept at Appellant’s house. Sometime between July and November of 2011, E.M. and J.M. visited Appellant again. E.M. testified that, on this occasion, she and J.M. slept in Appellant’s bed, with J.M. in the middle and E.M. and Appellant on either side. She testified that Appellant “got out of the bed,” “went around” to where E.M. slept, “pushed [her] to where [J.M.] was so [J.M.] was now on the outer side,” and got in bed next to her. J.M. did not wake up when this happened. E.M. testified that Appellant faced E.M. in the bed, pulled down his pants and shorts and E.M.’s underwear, and then “stuck his penis into [her] vagina like the - - the outer part.” E.M. said that she pushed Appellant away and that he immediately stopped. E.M. testified that she told one of her friends what had happened and that the friend told her mother, who called the school principal, John Thompson Jr. Thompson called E.M. into his office, and E.M. told him and the school counselor, John Olivo, what Appellant had done. Thompson subsequently called the police, and Olivo called E.M.’s mother. E.M.’s mother came to the school, and E.M. told her mother what had happened. E.M. testified, “I was angry at myself for not telling her.” E.M. said she went to Eastland that same day and interviewed with Robin Seabourn about what had happened. She said that, sometime later, she went to Fort Worth, told someone else about what had happened, and received a physical examination. E.M. testified that she told those two people the same thing that she testified to at trial. Thompson, who was the middle school principal of Ranger I.S.D. in February 2012, testified he had received a phone call from a student’s parent that E.M. “possibly was sexual[ly] assaulted.” He testified that he met with E.M. in the coach’s office during E.M.’s P.E. class. At that time, E.M. did not “say either

4 way” what had happened. Thompson testified that, the next day, he received “an inner-office e-mail” that indicated a student had reported that someone “needed to probably talk to [E.M.] again.” Thompson called E.M. into Olivo’s office, and both he and Olivo talked with E.M. E.M. cried and reported that something sexual had happened with her father. E.M. said that the last time was in October or November of 2011. Thompson said that they called E.M.’s mother, that she came to the school, and that E.M. told her mother what had happened. Thompson testified that E.M. was “an A/B student, never a discipline problem, gets along real well with all of the kids, very quiet normally, just a great kid” and that he “wouldn’t expect her in a situation like this to make up a story like that.” Olivo, who was the middle school counselor in the Ranger school district in the spring of 2012, testified that he met with E.M in February 2012. He was present when E.M. told her mother what happened. He said that E.M. “was a good student, good grades, real personable, . . . no disciplinary things in the classroom or anything” and that he “didn’t see any reason not to believe . . . what she was saying.” Robin Seabourn, a forensic interviewer at the children’s advocacy center in Eastland, testified that she conducted a forensic interview with E.M. in February 2012. She said that Chief Elliot scheduled the interview and that he and Deputy Maltby watched the interview live on a video screen in another room. Seabourn testified that E.M. identified the difference between the truth and a lie and described in detail what happened to her. Seabourn testified that E.M. identified Appellant as the individual who sexually abused her and that her story “was very consistent.” Rebecca Sullivan, a SANE at Cook Children’s Medical Center, testified that she performed a sexual abuse exam on E.M. in February 2012. She asked E.M. why she was there that day, and E.M. responded “because my dad abused me. He

5 like touched me down there, my vagina, with his penis.” Sullivan asked E.M. if it happened once or more than once, and E.M. told her that “it happened more than once.” She testified that, when she asked E.M. “if any other types of contact happened,” E.M. said, “[W]hen we were in the car that he touched my front part with his hands one time . . . when I was eight or nine.” E.M. also told Sullivan that “there was contact” with her chest on top of her clothes when they were in the car. Sullivan asked E.M. how old she was when the penile vaginal contact started. E.M. said she was ten. Sullivan testified that E.M. identified Appellant as her father. E.M. told her that the contact happened at Appellant’s house. E.M. also told her that the last time anything had happened was “over the summer, in September.” Sullivan testified that, based on what E.M. told her, E.M. had described “penetration” of her vagina by Appellant’s penis on more than one occasion. Sullivan said that E.M. had no signs of injury or trauma to her genitalia and that those findings were consistent with E.M.’s medical history. She testified that it was “actually rare” to have physical findings in a sexual abuse exam and explained that “most children don’t disclose right away, . . . so when we’re doing their exam plenty of time has passed so if there ever was an injury it’s had time to heal.” She stated that it was rare to diagnose sexual abuse from the exam and that “[t]he most important part is the history, what the child said happened.” Sullivan’s impressions were that E.M. had been sexually abused and that she had a normal exam with no anal or genital trauma. She read her notes about E.M.’s demeanor during the exam. E.M. “was alert and oriented, cooperative” and “answered the questions readily and with eye contact.” J.R., E.M.’s mother, testified that she lived with Appellant for ten years but that she was never married to him. J.R. met Appellant when she was about fourteen years old and Appellant was about twenty-seven. Appellant was

6 “[m]aybe” thirty-nine at the time of trial. J.R. was sixteen or seventeen when she had E.M., and E.M. was twelve at the time of trial. She testified that E.M. has never had a boyfriend and has never wanted to have a boyfriend. J.R. said that E.M. was not mad at Appellant when he did not buy her a new cell phone. The first time she heard about what Appellant did to E.M. was when she went to the school and met with E.M., the principal, and the counselor. J.R. testified that E.M. was intelligent and honest and that she had no problems with E.M. at home. According to J.R., E.M. is not “the type of girl that would make something like this up.” Andy Hesbrook, a friend of Appellant, testified that he had known Appellant for about fourteen years, that Appellant was a good father, and that he had heard nothing negative about Appellant. Maggie Hesbrook, who described Appellant as her “brother-in-law’s brother,” testified that she had known Appellant for about twenty years, had never heard anything negative about Appellant, and believed Appellant to be a good father. Eladio “Billy” Martinez, Appellant’s brother, testified that he had heard nothing negative about Appellant and that Appellant was a good father. He last saw E.M. at Appellant’s house in September 2011. Esther Martinez, Appellant’s sister-in-law, testified that she had known Appellant for twenty-three years, that he was a good father, that she had heard nothing negative about him, and that E.M. never appeared uncomfortable around Appellant. Glenn Hodges, who had known Appellant for ten or twelve years, testified that Appellant’s family members were “real dependable, honest kind of people” and that he had heard nothing negative about Appellant. James Delaney, who had known Appellant for three or four years, testified that Appellant was honest and trustworthy. Steve Ruedas, who described Appellant as his “aunt’s brother,” testified that he thought Appellant was a good father and that he had never heard anything negative about Appellant.

7 Appellant, through an interpreter, testified that he slept in the same bed with E.M. and J.M. but that “each one had their own cover.” They slept in the same bed because he had only one air conditioner and because his friend stayed and lived in the other room. Appellant testified that J.M. slept in the middle, that Appellant did not sleep next to E.M., and that Appellant never changed that arrangement. E.M. and J.M. visited him on J.M.’s birthday in November 2010, but they stayed at his brother’s house, each on different sofas. He remembered that E.M. last visited him in June 2011 “because it was one month before her birthday and she asked for a cell phone.” In response to his brother’s testimony regarding having seen E.M. at Appellant’s house in September 2011, Appellant said that his brother “doesn’t pay attention to the time frames” and that the September visit never occurred. According to Appellant, E.M. and J.M. never visited his house in November 2011. Appellant testified that he thought E.M. did not tell the truth because one time “[t]hey wanted me to pick them up and I couldn’t because I didn’t have any money. They only would call me, look for me when they wanted something.” He explained that E.M.’s testimony—that Appellant touched her breast—could not be true because the friend that lived with Appellant always went with Appellant when he went to Ranger to visit his children; the friend sat in the front seat, so E.M. could not have sat in the front seat. Appellant never spent time alone with his children because his friend that lived with him would always be with them. Appellant said that E.M. lied because E.M.’s mother had threatened to send her back to Appellant. Appellant testified, “I know that I’m innocent. [I] have not done anything of what I’m accused.” III. Issues Presented Appellant presents four issues on appeal. He challenges (1) the sufficiency of the evidence to prove his guilt, (2) definitions in the jury charge, (3) instructions

8 in the jury charge, and (4) the failure of the trial court to read its answer to the jury’s question in open court. IV. Standards of Review We apply the sufficiency standard outlined in Jackson and its progeny to Appellant’s sufficiency issue. Jackson v. Virginia, 443 U.S. 307, 318 (1979); Brooks v. State, 323 S.W.3d 893, 894 (Tex. Crim. App. 2010); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). We review all of the evidence introduced by both the State and Appellant in the light most favorable to the jury’s verdict and decide whether any rational trier of fact could have found each element of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319. We measure sufficiency of the evidence against a hypothetically correct jury charge. Curry v. State, 30 S.W.3d 394, 404 (Tex. Crim. App. 2000). A hypothetically correct jury charge “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. (quoting Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)). The trier of fact holds the responsibility to resolve conflicts in the testimony fairly, weigh the evidence, and draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319. We are to resolve inconsistencies in the testimony in favor of the verdict. Curry, 30 S.W.3d at 406. We review an alleged jury charge error that the defendant did not object to at trial in two steps: We determine “(1) whether error existed in the charge; and (2) whether sufficient harm resulted from the error to compel reversal.” Ngo v. State, 175 S.W.3d 738, 744 (Tex. Crim. App. 2005). We will not reverse for charge error “unless the record shows ‘egregious harm’ to the defendant.” Id. In our determination of whether an error caused egregious harm, we review the entire

9 jury charge, the state of the evidence, the arguments of counsel, and any other relevant information in the record. Id. at 750 n.48. V. Analysis A. Sufficiency of the Evidence Appellant argues that the evidence is insufficient to prove that he committed the alleged offense. Specifically, he contends that “E.M.’s testimony was marked by inconsistencies; the delay in reporting and lack of physical evidence undercut the reliability of her testimony; E.M. had numerous motives for fabricating her testimony; her testimony was directly controverted by several witnesses; and her testimony is contrary to the evidence of [Appellant’s] good character.” The jury could have convicted Appellant if it found beyond a reasonable doubt that Appellant intentionally or knowingly caused the penetration of the sexual organ of E.M. by his sexual organ on two separate occasions over a span of more than thirty days, that Appellant was at least seventeen years of age, and that E.M. was under the age of fourteen when both of these acts occurred. See PENAL §§ 21.02(b), 22.021(a)(1)(B)(i), (a)(2)(B). The testimony of E.M., the forensic interviewer, and the SANE showed that Appellant intentionally or knowingly caused the penetration of E.M.’s vagina with his penis on two separate occasions during a period of more than thirty days in duration. Appellant was over seventeen years of age, and E.M. was under the age of fourteen when those acts occurred. E.M.’s testimony alone provides sufficient evidence to support the allegations that Appellant twice committed the offense of aggravated sexual assault as alleged in the indictment and included in the jury charge. See TEX. CODE CRIM. PROC. ANN. art. 38.07 (West Supp. 2014); Villalon v. State, 791 S.W.2d 130, 134 (Tex. Crim. App. 1990) (concluding child victim’s unsophisticated terminology alone established element of penetration beyond a reasonable doubt). We disagree with Appellant that this case matches the hypothetical situation described in

10 Brooks to illustrate a scenario in which the evidence would be insufficient under Jackson. In the hypothetical, the jury convicted “A” of robbery based upon the testimony of a witness who identified “A” as the robber of a convenience store, even though a surveillance videotape clearly showed that “B” committed the robbery. See 323 S.W.3d at 907. We have found no such evidence in the record. We have reviewed the record, and as we have previously outlined, we hold that sufficient evidence exists to convict Appellant of the alleged offense. See Jackson, 443 U.S. at 319. We overrule Appellant’s first issue. B. Jury Charge Error Appellant did not object to the jury charge at trial. Therefore, we will not reverse unless there is error in the charge and the error caused Appellant egregious harm. See Ngo, 175 S.W.3d at 743–44. Egregious harm exists if the error affected the very basis of the case, deprived Appellant of a valuable right, vitally affected a defensive theory, or caused Appellant to not have a fair and impartial trial. See Jourdan v. State, 428 S.W.3d 86, 97–98 (Tex. Crim. App. 2014) (quoting Stuhler v. State, 218 S.W.3d 706, 719 (Tex. Crim. App. 2007)); Almanza v. State, 686 S.W.2d 157, 171–72 (Tex. Crim. App. 1985) (op. on reh’g). 1. Culpable Mental State Definitions Appellant challenges the definitions in the jury charge for “intentionally” and “knowingly.” Appellant claims that aggravated sexual assault involves both a “result of conduct” offense and a “nature of conduct” offense but that the jury charge limited the definitions to a “result of conduct” offense. Appellant cites a previous case out of this court in which we concluded that aggravated sexual assault involved both “result of conduct” and “nature of conduct” elements. Baker v. State, 94 S.W.3d 684, 690–91 (Tex. App.—Eastland 2002, no pet.). Since our opinion in Baker, however, the Court of Criminal Appeals has explicitly stated that aggravated sexual assault is a “nature-of-conduct” statute. Gonzales v. State,

11 304 S.W.3d 838, 849 (Tex. Crim. App. 2010). Although more than one “conduct element” may apply to a single offense, in light of Gonzales, we disavow our analysis in Baker. But we need not reach this issue to resolve this case because, even if we assume, without deciding, that there is error in the jury charge, Appellant did not suffer egregious harm. At trial, Appellant did not contest his culpable mental state; he denied any touching or penetration of E.M. Therefore, an erroneous instruction of the culpable mental state could not egregiously harm him. See Jones v. State, 229 S.W.3d 489, 494 (Tex. App.—Texarkana 2007, no pet.) (holding that the defendant’s intent, “while it was a part of the State’s required proof, was not a contested issue and consequently [the defendant] could not be egregiously harmed by the definition of the intentional and knowing state of mind”). Additionally, if there is error in the jury charge, we “may consider the degree, if any, to which the culpable mental states were limited by the application portions of the jury charge” to determine egregious harm. Patrick v. State, 906 S.W.2d 481, 492 (Tex. Crim. App. 1995) (quoting Hughes v. State, 897 S.W.2d 285, 296 (Tex Crim. App. 1994)) (internal quotation marks omitted). The application portion of the jury charge instructed the jury as follows: The first alleged act of sexual abuse is that the [Appellant] committed the offense of aggravated sexual assault. Aggravated sexual assault is an act of sexual abuse if the state proves, beyond a reasonable doubt, two elements. The elements are that —

a. the [Appellant] intentionally or knowingly caused the penetration of the sexual organ of another person by any means; and

b. the other person was a child . . . younger than fourteen years of age.

12 The instructions for the second alleged act of sexual abuse were identical to the instructions for the first alleged act except the words “first alleged act” were replaced with “second alleged act.” See PENAL § 22.021(a)(1)(B)(i). Even if we assume, without deciding, that the definitions of intentionally and knowingly were erroneous, the application section correctly instructs the jury because it follows the language of the statute. See id. Therefore, the jury charge caused no egregious harm. See Reed v. State, 421 S.W.3d 24, 30 (Tex. App.—Waco 2013, pet. ref’d) (“When the application paragraph correctly instructs the jury on the law applicable to the case, this mitigates against a finding of egregious harm.”). We hold that, even if the definitions contained errors, those errors did not egregiously harm Appellant. See Ngo, 175 S.W.3d at 743–44; Reed, 421 S.W.3d at 30; Jones, 229 S.W.3d at 494. We overrule his second issue. 2. Instructions on Unanimity In his third issue, Appellant asserts the jury charge was erroneous in its instructions that the jury “need not all agree on which specific acts of sexual abuse were committed by the defendant” without a limiting instruction that the jury could only consider the two acts of sexual abuse included in the indictment and not the extraneous offense evidence presented regarding touching E.M.’s breast. In a continuous sexual abuse case, a jury need not agree unanimously on which specific acts of sexual abuse the defendant committed; it must only agree that the defendant committed two or more acts of sexual abuse over a period of thirty days or more in duration. PENAL § 21.02(d). Additionally, “touching . . . the breast of a child” is not an act of sexual abuse for purposes of the offense of continuous sexual abuse of a young child. Id. § 21.02(c)(2). The jury heard evidence that Appellant touched E.M.’s breast. The jury charge instructed the jury that they “must all agree on elements 1, 2, 3, and 4 listed above,” which contained two alleged acts of aggravated sexual assault, the time

13 frame, the age of the actor, and the age of the victim, respectively. Additionally, the jury charge instructed the jury that “[w]ith regard to element 1, you need not all agree on which specific acts of sexual abuse were committed by the defendant or the exact date when those acts were committed. You must, however, all agree that the defendant committed two or more acts of sexual abuse.” Element one only contained two alleged acts of sexual abuse, and both were that Appellant “intentionally or knowingly caused the penetration of the sexual organ of [a child] by any means.” The jury charge contained no language related to the breast- touching incident. The State, however, referenced the breast-touching incident in its closing argument but also stated that the jury would not “decide whether [Appellant is] guilty of that offense.” The instruction that Appellant complains of in the jury charge used substantially the same language as the statute and was not erroneous. See PENAL § 21.02(d). We hold that, whether or not the charge contained any error, the charge did not cause egregious harm because the charge properly instructed the jury that it must find that Appellant committed at least two of the two alleged acts of sexual abuse, because the charge contained no reference to the breast-touching incident, and because the State told the jury in argument that they would not decide whether Appellant was guilty of the breast-touching incident. See Ngo, 175 S.W.3d at 750 n.48. The jury could not have been confused or mistakenly believed that it could convict Appellant based on the breast-touching incident. We overrule Appellant’s third issue. C. Communication With the Jury Appellant complains that the trial court erred by not reading its answer to the jury’s question in open court. He alleges that he did not expressly waive this right. See TEX. CODE CRIM. PROC. ANN. art. 36.27 (West 2006). A trial court does not give additional instructions when it refers the jury to the jury charge; thus,

14 noncompliance with Article 36.27 does not result in reversible error in such a situation. See McFarland v. State, 928 S.W.2d 482, 517–18 (Tex. Crim. App. 1996) (citing Nacol v. State, 590 S.W.2d 481, 486 (Tex. Crim. App. 1979)), overruled on other grounds by Mosley v. State, 983 S.W.2d 249, 263 n.18 (Tex. Crim. App. 1998). The jury sent a note to the trial court and requested the dates or time span when the sexual abuse occurred. After discussing the jury’s note with the parties, the trial court ultimately referred the jury to the written instructions found in the jury charge and did not answer the question. Neither the State nor Appellant objected to the court’s actions. We hold that no reversible error occurred in connection with any noncompliance with Article 36.27 because the trial court did not further instruct the jury. See id. We overrule Appellant’s fourth issue. VI. Conclusion We hold, after a review of the record, that (1) sufficient evidence existed to convict Appellant of the offense of continuous sexual abuse of a young child; (2) the jury charge, even if it contained errors in the definitions or instructions, did not cause Appellant egregious harm; and (3) no reversible error occurred when the trial court referred the jury to the jury charge. See Jackson, 443 U.S. at 319; Ngo, 175 S.W.3d at 743–44; McFarland, 928 S.W.2d at 517–18. VII. This Court’s Ruling We affirm the judgment of the trial court.

March 20, 2015 MIKE WILLSON Do not publish. See TEX. R. APP. P. 47.2(b). JUSTICE Panel consists of: Wright, C.J., Willson, J., and Bailey, J.