COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 2-07-374-CR
ENEDINA PEREZ APPELLANT
V.
THE STATE OF TEXAS STATE
------------
FROM CRIMINAL DISTRICT COURT NO. 4 OF TARRANT COUNTY
MEMORANDUM OPINION 1
A jury convicted Appellant Enedina Perez of aggravated sexual assault of
a minor, indecency with a child by contacting the child’s genitals, and
indecency with a child by causing the child to contact Appellant’s breasts. In
four points, Appellant argues that the evidence is legally and factually
insufficient to support her convictions and that the trial court erred by admitting
1 … See Tex. R. App. P. 47.4. hearsay testimony concerning another alleged sexual assault at guilt-innocence.
We affirm.
Background
Maria G.—the mother of the complainant, “Suzy” (a
pseudonym)—testified that she hired Appellant as a full-time live-in nanny and
housekeeper in 1996 when Maria was pregnant with Suzy. After Suzy’s birth,
Appellant looked after her and Maria’s other children, living with the family
during the week and returning to her own home on the weekends. Appellant
shared a bedroom with Suzy, and the two slept in the same bed. Suzy spent
some weekends with Appellant at Appellant’s home. Maria testified that one
night, she walked into Suzy’s bedroom, where Suzy and Appellant were in bed
together. She saw Appellant’s hand under the sheet near Suzy’s genitals, and
Appellant quickly moved her hand. Maria asked what was going on, and
Appellant responded, “[W]hy would I want to be doing that stuff to [Suzy]?
That’s what men are for.” Although the incident made Maria suspicious, she
did nothing further about it. Maria testified that there was a time when Suzy
complained about redness in her genital area, which Maria attributed to Suzy’s
failing to wipe herself from front to back, and Maria told Suzy to ask Appellant
to apply cornstarch to the affected area.
2 Angelina Bowen, a counselor at Suzy’s school, testified that Suzy made
an outcry statement to her after watching a “Play It Safe” video, which
instructs children on the difference between appropriate and inappropriate
touching, in February 2006. Bowen said that Suzy came to her office after the
presentation and, crying, told her that “her babysitter had been touching her in
her . . . lower privates and her upper privates.” Bowen said that Suzy told her
that Appellant forced Suzy to dress in front of her and touched her genitals
when Suzy showered and that the abuse “was continuous, . . . was
repetitive.” Suzy told Bowen that she was afraid Appellant was going to lock
her in her room and hit her if she found out that Suzy had made an outcry.
Suzy testified that when she was in pre-k, kindergarten, first grade, or
second grade, Appellant began touching her on her upper and lower body, in
her “private part” and on her chest. Suzy said Appellant put her hands inside
Suzy’s clothes and her fingers into her “private part.” When asked whether
Appellant went “inside the hole” in her “private parts,” Suzy said, “Like – she
did, but like not all the way, but just like half.” She also said that Appellant
rubbed Suzy’s breasts in a circular motion both over and under Suzy’s clothes.
Suzy testified that Appellant touched her in these manners many times and in
different locations, including in a car while stopped at red lights. She said she
did not tell her mother “[b]ecause I knew I was going to get in trouble if I said
3 anything” and because Appellant “said . . . she’ll go get my mom, and she
would do something to her, like hit her or something.” On one occasion, Suzy
told Appellant to stop what she was doing, and Appellant got mad and later hit
her with a belt. Suzy said that the touching continued until she told Bowen,
which was when Suzy was in the fourth grade.
Dr. Judy Werner, Suzy’s family physician, testified that she examined
Suzy the day after Suzy made her outcry statement. She testified that Suzy’s
groin was reddened and swollen from her labia back to her anus. She
attempted to determine whether Suzy’s hymen was intact, but Suzy’s labia
were so swollen and painful that she could not do so. On cross-examination,
Dr. Werner said that Suzy’s swelling and redness could be consistent with not
wiping properly after urination and then scratching to relieve the itch.
Donna Wright, a pediatric nurse practitioner with the Cook Children’s
Medical Center C.A.R.E. team, interviewed Suzy and performed a sexual assault
exam. Wright testified that she determined from interviewing Suzy that
Appellant had penetrated Suzy’s sexual organ with Appellant’s finger. She said
that Suzy had some redness around her genitals but that she attached no
significance to it because there are many possible causes for such redness,
such as not wiping well, sweating, or skin rubbing together.
4 The defense presented the testimony of six witnesses; five are
Appellant’s relatives, and the sixth is Suzy’s father. They all testified that they
had never seen Appellant behave inappropriately with Suzy.
The jury found Appellant guilty on all three counts and assessed
punishment at thirty years’ confinement for the aggravated sexual assault count
and ten years’ confinement for each indecency count, and the trial court
rendered judgment accordingly.
Legal and Factual Sufficiency
In her first three points, Appellant challenges the legal and factual
sufficiency of the evidence to support the her convictions. When reviewing the
legal sufficiency of the evidence to support a conviction, we view all the
evidence in the light most favorable to the prosecution in order 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). When reviewing the factual sufficiency of the evidence to support
a conviction, we view all the evidence in a neutral light, favoring neither party.
Neal v. State, 256 S.W.3d 264, 275 (Tex. Crim. App. 2008); Watson v. State,
204 S.W.3d 404, 414 (Tex. Crim. App. 2006). We then ask whether the
evidence supporting the conviction, although legally sufficient, is nevertheless
5 so weak that the factfinder’s determination is clearly wrong and manifestly
unjust or whether conflicting evidence so greatly outweighs the evidence
supporting the conviction that the factfinder’s determination is manifestly
unjust. Lancon v. State, 253 S.W.3d 699, 704 (Tex. Crim. App. 2008);
Watson, 204 S.W.3d at 414–15, 417.
1. Penetration
In her first point, Appellant argues that the evidence is legally and
factually insufficient to prove that she penetrated Suzy’s sexual organ in
connection with her conviction for aggravated sexual assault. She argues that
Suzy was too young at the time of the alleged assault to understand the
difference between touching and penetration and that there was no physical
evidence of penetration.
A person commits the offense of aggravated sexual assault if the person
intentionally or knowingly causes the penetration of the anus or sexual organ
of a child by any means. Tex. Penal Code Ann. § 22.021(a)(1)(B) (Vernon
Supp. 2008). Penetration occurs when the contact is more intrusive than
contact with the outer labia of the female sexual organ. Vernon v. State, 841
S.W.2d 407, 409 (Tex. Crim. App. 1992) (holding that slightest penetration of
female sexual organ is sufficient to prove penetration even though vagina is not
entered). Courts give wide latitude to testimony given by a child victim of
6 sexual abuse. See Villalon v. State, 791 S.W.2d 130, 134 (Tex. Crim. App.
1990). The victim’s description of what happened to her need not be precise,
and she is not expected to express herself at the same level of sophistication
as an adult. See id. There is no requirement that the victim’s testimony be
corroborated by medical or physical evidence. Garcia v. State, 563 S.W.2d
925, 928 (Tex. Crim. App. 1978); Kemple v. State, 725 S.W.2d 483, 485
(Tex. App.—Corpus Christi 1987, no pet.).
Concerning penetration, Suzy testified as follows:
Q. [By the prosecutor] . . . [L]et’s talk just a little bit about your private part, okay?
A. Okay.
Q. Will you agree with me that a girl’s private part looks kind of like two fingers put together?
A. Yes.
Q. When [Appellant] would touch your private part with her hand or her finger, did she touch just on top of these two parts or did she go in between these two parts?
A. She did both. She would rub and she would go inside.
Q. Okay. Now, when you go inside the two private—or the two parts, there’s a hole underneath there, right?
Q. Did she go inside that hole or not?
7 A. Like—she did, but not all the way, but just like half, and so it would kind of hurt.
Q. Okay. And you’re making kind of a circle with your fingers when you put it in between my two fingers?
Q. So did she do that when she was touching your private part? Did her fingers make a little circle?
Q. Or something different?
A. Like she had her—whenever she went in the hole, she got—one finger was doing the circle, but whenever she would touch my private part, like not in, but right there—
Q. On top of the two parts?
A. Yes. She would just—she got all like three and just rubbed.
Q. She would rub with three fingers?
Q. Okay. And you said it would kind of hurt when she went inside?
This is some evidence from which a rational jury could conclude that Appellant
penetrated Suzy’s sexual organ.
Appellant points to Suzy’s testimony that Appellant would sometimes rub
her sexual organ through her clothing to suggest that Suzy was confused about
8 penetration, but a more reasonable interpretation of her overall testimony is that
Appellant would sometimes rub her genitals through her clothing and other
times penetrate her sexual organ with her fingers. Appellant also points to
Maria’s testimony that she instructed Appellant to apply cornstarch to Suzy’s
groin as evidence raising the defense of medical treatment. See Tex. Penal
Code Ann. §§ 22.011(d) (Vernon Supp. 2008), 22.021(d). But even if
Appellant touched Suzy’s sexual organ for the purpose of applying cornstarch,
Maria’s testimony does not explain Suzy’s testimony that Appellant touched her
“inside the hole,” i.e., penetrated her sexual organ.
Appellant further highlights the fact that Dr. Werner found no evidence
of penetration, but Dr. Werner also testified that she would not expect to see
any such evidence because a child’s sexual organ heals quickly and because of
the amount of time that elapsed between the alleged assault and Dr. Werner’s
examination. Further, as we noted above, a victim’s testimony need not be
corroborated by physical or medical evidence. Garcia, 563 S.W.2d at 928;
Kemple, 725 S.W.2d at 485.
Considering the evidence of penetration 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 Appellant penetrated Suzy’s sexual organ. Thus, the
evidence is legally sufficient. See Jackson, 443 U.S. at 319, 99 S. Ct. at
9 2789; Clayton, 235 S.W.3d at 778. Considering the evidence in a neutral light,
we hold that it is also factually sufficient. See Neal, 256 S.W.3d at 275;
Watson, 204 S.W.3d at 414. Therefore, we overrule Appellant’s first point.
2. Intent to arouse or gratify sexual desire
In her second and third points, Appellant argues that the evidence is
legally and factually insufficient in connection with her convictions for the two
indecency counts to show that she touched Suzy’s genitals and caused Suzy
to touch Appellant’s breasts with the intent to arouse and gratify any person’s
sexual desire. She also argues that Maria’s testimony that she instructed
Appellant to apply cornstarch to Suzy’s groin “negates a sexualized intent.”
A person commits the offense of indecency with a child by contact if the
person engages in sexual contact with the child or causes the child to engage
in sexual contact. Tex. Penal Code Ann. § 21.11(a)(1) (Vernon 2003). “Sexual
contact” means, if committed with the intent to arouse or gratify the sexual
desire of any person, any touching by a person, including touching through
clothing, of the anus, breast, or any part of the genitals of a child or any
touching of any part of the body of a child, including touching through clothing,
with the anus, breast, or any part of the genitals of a person. Id. § 21.11(c).
The specific intent to arouse or gratify the sexual desire of a person can
be inferred from a defendant’s conduct, remarks, or all the surrounding
10 circumstances. McKenzie v. State, 617 S.W.2d 211, 216 (Tex. Crim. App.
[Panel Op.] 1981). Oral expressions of intent are not required; rather, a
defendant’s conduct alone is sufficient to infer intent. Tyler v. State, 950
S.W.2d 787, 789 (Tex. App.—Fort Worth 1997, no pet.).
Suzy testified that Appellant made her touch Appellant’s breasts. She
said that she was massaging Appellant’s shoulders and Appellant moved her
hand onto Appellant’s breast and told Suzy to massage “right there.” Wright
testified that Suzy told her that Appellant said “it felt good” when Suzy touched
Appellant’s breast.
Suzy also testified that when Appellant was touching her, “she would
sometimes say the F word and the S word” in Spanish. Dr. W erner testified
that Suzy told her that Appellant “used the word pussy, and she said that when
she was rubbing [Suzy] underneath her panties, she would say, quote, fuck,
end quote. And she would also look at [Suzy], smile, and then in Spanish
would say, quote, soft and smooth, end quote.” Further, Suzy testified that
Appellant told her that if she did not allow Appellant to touch her or if Suzy told
anyone, Appellant would “get” Suzy’s mother and “do something to her, like
hit her or something.”
Although the jury could infer Appellant’s intent to arouse or gratify sexual
desire from the touching itself, see id. at 789, the foregoing evidence also
11 supports that finding. Suzy’s testimony about Appellant’s moaning when she
made Suzy touch her breasts and uttering words of a crude sexual nature when
touching Suzy’s genitals are circumstances tending to show that Appellant
viewed the incidents as sexual encounters. See McKenzie, 617 S.W.2d at 216;
Murray v. State, 24 S.W.3d 881, 886–87 (Tex. App.—Waco 2000, pet. ref’d)
(holding defendant’s use of the word “pussy” in reference to indecent contact
reasonably implied that he viewed the incident as a sexual encounter). Further,
a defendant’s instruction to a child victim not to reveal the event to anyone
shows a consciousness of wrongdoing, which in turn leads to an inference that
when the defendant touched the victim, the defendant harbored a specific
intent to arouse and gratify the defendant’s own sexual desire. Montgomery
v. State, 810 S.W.2d 372, 396 (Tex. Crim. App. 1991) (op. on reh’g).
With regard to Appellant’s argument that Maria’s instructing her to apply
cornstarch to Suzy’s groin negates specific sexualized intent, we have already
noted that even if Appellant touched Suzy’s genitals for that purpose, it does
not excuse her from the other acts of which Suzy complains; those acts include
causing Suzy to touch Appellant’s breasts and rubbing Suzy’s genitals while
uttering the statements set forth above.
We hold that the evidence is both legally and factually sufficient to
support the jury’s implied finding that Appellant intended to arouse or gratify
12 a person’s sexual desire when she caused Suzy to touch her breasts and when
she touched Suzy’s genitals, and we overrule Appellant’s second and third
points.
3. Extraneous offense evidence
In her fourth point, Appellant argues that the trial court committed
structural, constitutional error by allowing Maria to testify that Suzy’s brother,
Bob (a pseudonym), had recently told her that Appellant had abused him, too.
Appellant did not object to this testimony at trial, and she concedes that
treating the error as a constitutional, structural error is “an admittedly novel
concept.” The testimony in question is as follows:
(Conference at the bench.)
[PROSECUTOR]: Judge, I believe at this time, the defense has opened the door to sexual abuse of [Bob] as well.
[DEFENSE COUNSEL]: That’s fine.
THE COURT: Okay.
(End of bench conference.)
Q. [By the prosecutor] Maria, did you find out that [Suzy] was not the only abused—or sexual abuse victim of your children?
A. Yes, I did.
Q. Who was the other victim?
A. My son, [Bob].
13 ....
Q. And, briefly, how did you find out about that?
A. I had brought my children to get interviewed because we were supposed to go to trial on this matter in July.
Q. Did he tell you about it at that time?
A. I found out when I was told that we couldn’t proceed. I could not handle it, two children.
Q. Do you know, as a parent, why [Bob] had remained quiet about it?
A. [Appellant] had threatened him that something was going to happen to us.
[DEFENSE COUNSEL]: Your Honor, I’m going to object. That’s nonresponsive and that also calls for hearsay.
[PROSECUTOR]: Without getting into the threat—
THE COURT: I’ll sustain that as to anything further.
Q. [By the prosecutor] —do you know—
[PROSECUTOR]: Actually, Your Honor, I pass the witness.
To preserve a complaint for our review, a party must have presented to
the trial court a timely request, objection, or motion that states the specific
grounds for the desired ruling if they are not apparent from the context of the
request, objection, or motion. Tex. R. App. P. 33.1(a)(1); Mosley v. State, 983
S.W.2d 249, 265 (Tex. Crim. App. 1998) (op. on reh’g), cert. denied, 526 U.S.
14 1070 (1999). Further, the trial court must have ruled on the request, objection,
or motion, either expressly or implicitly, or the complaining party must have
objected to the trial court’s refusal to rule. Tex. R. App. P. 33.1(a)(2); Mendez
v. State, 138 S.W.3d 334, 341 (Tex. Crim. App. 2004).
Except for complaints involving systemic (or absolute) requirements, or
rights that are waivable only, all other complaints, whether constitutional,
statutory, or otherwise, are forfeited by failure to comply with rule 33.1(a).
Mendez, 138 S.W.3d at 342. Systemic requirements include jurisdiction of the
person and subject matter, a penal statute’s being in compliance with the
separation of powers section of the state constitution, a constitutional
requirement that a district court conduct its proceedings at the county seat, the
constitutional prohibition against ex post facto laws, and certain constitutional
restraints on a judge’s comments. Saldano v. State, 70 S.W.3d 873, 888–89
(Tex. Crim. App. 2002). Constitutional error that is “structural” and therefore
not subject to a harm analysis also seems to fall into this category. See
Mendez, 138 S.W.3d at 339–40. The very limited class of structural,
constitutional errors includes the total deprivation of counsel at trial, lack of an
impartial trial judge, the unlawful exclusion of members of the defendant’s race
from a grand jury, the denial of the right to self-representation at trial, the denial
of the right to a public trial, and an instruction that erroneously lowers the
15 burden of proof for conviction below the “beyond a reasonable doubt” standard.
Johnson v. State, 169 S.W.3d 223, 235 (Tex. Crim. App. 2005) (citing
Johnson v. U.S., 520 U.S. 461, 468–69, 117 S. Ct. 1544, 1549–50 (1997)).
The error Appellant alleges on appeal—the admission of hearsay evidence
of an extraneous offense—does not fall within the parameters of systemic error
or structural, constitutional error. Therefore, Appellant had the obligation to
object to the evidence at trial. See Tex. R. App. P. 33.1(a)(1); Mosley, 983
S.W.2d at 265. Because Appellant failed to object, she forfeited the alleged
error, and we overrule her fourth point.
Conclusion
Having overruled all of Appellant’s points, we affirm the trial court’s
judgment.
ANNE GARDNER JUSTICE
PANEL: CAYCE, C.J.; LIVINGSTON and GARDNER, JJ.
DO NOT PUBLISH Tex. R. App. P. 47.2(b)
DELIVERED: January 22, 2009