Bravilo Espiridion Pardo v. State

• Court: Court of Appeals of Texas
• Decided: December 16, 2004
• Docket: 01-03-01113-CR
• Status: Published

Opinion

Opinion issued December 16, 2004.

In The

Court of Appeals

For The

First District of Texas

---

NOS. 01-03-01112-CR

           01-03-01113-CR

---

BRAVLIO ESPIRIDION PARDO, Appellant

V.

THE STATE OF TEXAS, Appellee

---

On Appeal from the 182nd District Court

Harris County, Texas

Trial Court Cause Nos. 939811 & 939812

---

MEMORANDUM OPINION

          A jury found appellant, Bravlio Espiridion Pardo, guilty of sexual assault of a child and aggravated sexual assault of a child and assessed punishment at 20 years and 50 years, respectively. In his first issue, appellant contends that the evidence was legally insufficient to support his convictions because the State failed to prove beyond a reasonable doubt that the complainant was not his spouse. In his second issue, appellant challenges the factual sufficiency of the evidence. We affirm.

Background

          The complainant, M.G., who was 15 years old at the time of trial, testified that appellant started sexually abusing her when she was three years old. The complainant asserted that the abuse consisted of appellant touching her vagina and breasts with his hand, placing his mouth on her breasts, penetrating her vagina with his penis, placing her hand on his penis, and forcing her to perform oral sex on him, while threatening her if she told anyone about the assaults.

          Before trial, Dr. Rebecca Giradet examined the complainant at the Children’s Assessment Center (“CAC”). During this examination, the complainant stated that she was there “to put [her] stepfather in jail” because “he raped [her].” A physical examination revealed two tears in the complainant’s hymen. At trial, the complainant asserted that she “hated [appellant]” because he would not allow her to visit her grandparents’ house or go to parties. The complainant also testified that her mother forced her to write a letter of recantation stating that she “wrongly accused [appellant] for something he didn’t do to [her] because her mother wanted to ‘go back with’ appellant.” The complainant further explained that her mother and brother promised to give her a radio, cell phone, and other inducements to get her to change her story.

Legal Sufficiency

          In his first issue, appellant contends that the evidence was legally insufficient to support his convictions. Specifically, appellant argues that the State failed to prove that the complainant was not his spouse.

Standard of Review

          When conducting a legal-sufficiency review, we view the evidence in the light most favorable to the verdict to determine whether any rational fact finder could have found the essential elements of the offense beyond a reasonable doubt. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000); Howley v. State, 943 S.W.2d 152, 155 (Tex. App.—Houston [1st Dist.] 1997, no pet.). Although a legal-sufficiency analysis entails a consideration of all evidence presented at trial, we may neither re-weigh the evidence nor substitute our judgment for the jury’s. King, 29 S.W.3d at 562. The jury, as trier of fact, is the sole judge of the credibility of witnesses and may believe or disbelieve all or any part of a witness’s testimony. Reece v. State, 878 S.W.2d 320, 325 (Tex. App.—Houston [1st Dist.] 1994, no pet.).

Analysis

          In this case, appellant was charged with sexual assault of a child and aggravated sexual assault of a child. Under the Texas Penal Code, a “child” is a person younger than 17 years of age who is not the spouse of the actor. Tex. Pen. Code Ann. § 22.011(c)(1) (Vernon Supp. 2004). Appellant argues that, while the State alleged that the complainant was “not the spouse of the Defendant,” the State failed to introduce any evidence showing beyond a reasonable doubt that the complainant was not his spouse. We disagree.

          Circumstantial evidence may be used to prove an essential element of the offense charged. See Wilson v. State, 654 S.W. 2d 465, 467 (Tex. Crim. App. 1983). Here, the complainant testified that she started living with appellant when she was three years old and shared a room with her younger brother and appellant’s son and daughter. The complainant testified that her mother made her write the letter of recantation because her mother wanted to “go back with” appellant. Additionally, when the complainant was interviewed at the CAC, she told them that she was there “to put her stepfather in jail [for raping her].” (Emphasis added). Finally, appellant’s father referred to appellant as his “son” and complainant as his “granddaughter.” A jury could infer that the complainant was not appellant’s spouse. See Jones v. State, 817 S.W. 2d 854, 856 (Tex. App.— Houston [1st Dist.] 1991, no pet.) (holding circumstantial evidence was sufficient to prove that the child was not defendant’s spouse where child was seven years old and defendant was the child’s biological father).

          Viewing the evidence in the light most favorable to the jury’s verdict, any rational trier of fact could have found beyond a reasonable doubt that the complainant was not appellant’s spouse. Accordingly, we hold that the evidence is legally sufficient to support appellant’s convictions.

          We overrule appellant’s first issue.

Factual Sufficiency

          In his second issue, appellant contends that the evidence is factually insufficient to support his convictions.

          In a factual-sufficiency review, we view all of the evidence in a neutral light, and we will set the verdict aside only if the evidence is so weak that the verdict is clearly wrong and manifestly unjust, or the contrary evidence is so strong that the standard of proof beyond a reasonable doubt could not have been met. Escamilla v. State, 143 S.W.3d 814, 817 (Tex. Crim. App. 2004).

          We must also employ appropriate deference so that we do not substitute our judgment for that of the fact finder. See Zuniga v. State, 144 S.W. 3d 477, 482 (Tex. Crim. App. 2004). Our evaluation should not intrude upon the fact finder’s role as the sole judge of the weight and credibility given to any witness’s testimony. Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). What weight to be given contradictory testimonial evidence is within the sole province of the fact finder because it turns on an evaluation of credibility and demeanor. Id. at 408. The fact finder is entitled to judge the credibility of the witnesses and may choose to believe all, some, or none of the testimony presented. Id. at 407.

          Here, the complainant testified that appellant sexually abused her numerous times. Dr. Giradet testified that she found two tears in the complainant’s hymen, which indicated injuries consistent with the complainant’s allegations of sexual assault. The complainant also admitted her hatred and dislike of appellant. She further explained that her mother forced her to write a letter of recantation and that the letter was untrue. Additionally, the State presented rebuttal witness Dr. Judy Rambur, a psychologist with the CAC, who testified that “a sex offender is more likely to sexually abuse a step-child as opposed to a biological child.”

          In response, appellant presented testimony from his father, brother, daughter, and sister. Appellant’s father testified that the complainant often defied appellant’s father’s instructions to stay at his shop and she would instead visit her 28-year-old married female friend, who lived a block away. Appellant’s brother also testified that a “mature boy” would call the complainant on the phone at appellant’s father’s shop. Finally, appellant’s daughter and sister testified that appellant had never said or done anything sexually inappropriate to them.

          Having viewed all of the evidence in a neutral light, we find that the evidence supporting appellant’s conviction is not too weak to support the finding of guilt beyond a reasonable doubt; nor was the contrary evidence so strong that the beyond-a-reasonable-doubt standard could not have been met. The fact finder is entitled to judge the credibility of the witnesses and may choose to believe all, some or none of the testimony presented. Cain, 958 S.W.2d at 407. When the evidence is conflicting, the jury’s verdict is generally regarded as conclusive. See McGarity v. State, 5 S.W.3d 223, 232 (Tex. App.— San Antonio 1999, no pet). We hold that the evidence demonstrates that the jury was rationally justified in finding appellant guilty beyond a reasonable doubt. See King, 29 S.W.3d at 562.

          We overrule appellant’s second issue.

ConclusionWe affirm the judgment of the trial court.

                                                             George C. Hanks, Jr.

                                                             Justice

Panel consists of Justices Nuchia, Hanks, and Higley.

Do not publish. Tex. R. App. P. 47.4.