Ismael Cavazos v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: August 19, 2021
• Docket: 01-19-00654-CR
• Status: Published

Opinion

Opinion issued August 19, 2021

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-19-00654-CR ——————————— ISMAEL CAVAZOS, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 263rd District Court Harris County, Texas Trial Court Case No. 1639262

MEMORANDUM OPINION

A jury convicted appellant, Ismael Cavazos, of the first-degree felony offense

of continuous sexual abuse of a child.1 The trial court assessed Cavazos’s

1 See TEX. PENAL CODE ANN. § 21.02(b). punishment at confinement for fifty years. In one issue on appeal, Cavazos contends

that the State failed to present sufficient evidence that he committed two or more

acts of sexual abuse against the complainant during a period that is thirty or more

days in duration.

We affirm.

Background

C.L. (“Cindy”)2 met Cavazos online in 2014, and they began dating. At the

time, Cindy had one daughter from a previous relationship, M.M. (“Morgan”), the

complainant. Morgan was born in April 2009 and was five years old when Cindy

and Cavazos began dating. Cavazos also had children from a previous relationship.

Cindy, Morgan, Cavazos, and his children moved into an apartment together

in League City in March 2015. Around August or September 2015, Cindy, Morgan,

and Cavazos moved to an apartment in Webster, where they lived until May 2016.

While they were living in Webster, Cindy and Cavazos had a son together. In May

2016, Cindy, Cavazos, their son, and Morgan moved to an apartment in Alvin.

While living in League City, Cindy had a full-time job and worked during the

day. Cavazos was not working, and he assumed primary childcare responsibilities

for his children and for Morgan after school and before Cindy arrived home. During

2 In this opinion, we refer to the child complainant and her mother by pseudonyms to protect their privacy. 2 her pregnancy, while she was living in Webster, Cindy split her time between

working at home and in the office. Cavazos had a job by this point, but there were

still times when Cindy would be at work and Cavazos would watch Morgan after

school. While living in Alvin, Cindy worked from home and then quit to attend

nursing school, which had classes three days per week. Cavazos was again

responsible for picking Morgan up from school.

On December 4, 2016, Cindy, Cavazos, their son, and Morgan were still living

in Alvin. Morgan was seven years old. That day, Morgan woke Cindy up and let her

know that she was “hurting really bad” and could not use the restroom. Cindy

initially believed that Morgan might have a urinary tract infection and had her drink

several bottles of water. When that did not solve the problem, Cindy asked Morgan

if anyone had “messed with her.” Morgan said no. Cindy then examined Morgan and

discovered vaginal discharge. When Cindy told Cavazos about Morgan’s pain, he

was unconcerned and said, “Why are you telling me? Take her to the hospital.”

Cindy took Morgan to the hospital. While at the hospital, Morgan had vaginal

bleeding. She did not, at this point, make an outcry to the doctor or to Cindy. The

doctor prescribed antibiotics, and Cindy drove Morgan to a pharmacy. While they

were in the pharmacy parking lot, Cindy again asked Morgan if anyone had touched

her. This time, Morgan said that Cavazos had touched her. Morgan told Cindy that

appellant “put his fingers down there” and pointed to her vagina.

3 Cindy and Morgan returned to their apartment, and Cindy told Morgan to stay

in the car. Cindy then retrieved her son and confronted Cavazos. Cavazos denied

touching Morgan inappropriately.3 Cindy left the apartment with Morgan and her

son, and she made a report to the Alvin Police Department that same night. Morgan

continued bleeding, and the next day, Cindy took Morgan to her pediatrician for a

physical exam.4 Morgan later had another physical exam at the Brazoria County

Children’s Assessment Center, and she also had a forensic interview.

Morgan was ten years old at trial. Morgan testified that the Webster apartment

was the first place where she could remember living with Cavazos. She stated that

Cavazos did something that made her feel uncomfortable “[m]ore than one time”

and that this happened in both the Webster apartment and the Alvin apartment.

Morgan testified that Cavazos touched and penetrated her vagina with both his hands

and his penis, penetrated her anus with his penis, and made her touch his penis with

her hands and her mouth. She stated that these actions happened “[l]ots of times”

3 Later, while Cavazos was in custody, he sent Cindy a letter in which he stated that he was not blaming Cindy for anything “because [he] let it all [happen]” and “let it all be taken away.” He also stated, “I’m not going to forgive your daughter for doing the right thing. I’m proud of her. I’m sorry for what I put you through. I will be spending a lot of time in prison, but it’s not going to go to [waste]. I will seek a new type of help and I will beat this evil.” 4 Dr. Leila Sim, a pediatrician, examined Morgan the day after her outcry. Morgan disclosed digital penetration and attempted vaginal intercourse. Dr. Sim testified that, based on the physical examination, it appeared that Morgan “may have been physically abused in the genitalia.” 4 and occurred at both the Webster and Alvin apartments while Cindy was at work.

She stated that Cavazos would touch her inappropriately when it was just her and

him at the apartment, and this occurred after she came home from school for the day.

Morgan testified that the acts of abuse happened on “[m]ore than one day”

and “[l]ots of times.” Morgan had the following exchange with the prosecutor:

State: And did it happen, like, every day, every week, every other day? How often would you describe how often it happened? Morgan: Every day, week. State: Every day in a week? Tell me what you mean by that. How often was it happening? Morgan: Like, it would happen every day and some weeks. Like, weeks, too. As the week go by, it would happen. State: . . . And so what you’re saying is—correct me if I’m wrong, [Morgan]. It would happen every couple days and it kept happening is what you’re saying? Morgan: Yes. State: Okay. So, whenever you move into the Webster house to when you move out of the Webster house, is this happening over and over the whole time you live there? Morgan: Yes. State: Okay. All right. So is that what you mean by happening, like, week after week after week? Morgan: Yes.

Morgan then testified, again, that Cavazos kept sexually abusing her after they

moved from Webster to Alvin. On cross-examination, Morgan stated that the abuse

occurred when she was in “first and second grade.” 5 Morgan’s physical examination at the Brazoria County Children’s

Assessment Center occurred in late December 2016. During this exam, Morgan

disclosed different acts of sexual abuse from what she had disclosed to Cindy earlier

that month. Morgan identified Cavazos as the perpetrator. She told the nurse

conducting the exam that Cindy met Cavazos “when I lived in League City or

Webster.” Morgan stated that she was “not sure” how many times the abuse

happened, but when she was asked when the first instance of abuse was, she stated,

“When my mom met Ismael.” When asked when the last instance of abuse occurred,

Morgan stated, “I don’t know.” Morgan did not provide specific dates.

Cavazos testified on his own behalf. He stated that he and Cindy lived in

League City from March 2015 until August or September 2015, when they moved

to Webster. They lived in Webster for around six months before moving to Alvin to

be closer to his job. His hours varied, but “[m]ost of the time” he worked twelve-

hour days, seven days per week. He testified that he was never alone with Morgan;

instead, his children would be in the household as well. Cavazos also testified that

the Webster apartment had one bedroom and the children—Morgan and his

children—slept in the living room. He agreed with his counsel that “it would have

been kind of difficult” for someone to do something in that apartment without other

people knowing about it. He testified that he was surprised when Cindy accused him

6 of sexually abusing Morgan because he had a “good relationship” with Morgan.

Cavazos denied ever sexually abusing Morgan.

The jury found Cavazos guilty of the offense of continuous sexual abuse of a

child. The trial court assessed his punishment at confinement for fifty years. This

appeal followed.

Sufficiency of the Evidence

In his sole issue, Cavazos contends that the State failed to present sufficient

evidence that he committed two or more acts of sexual abuse against Morgan during

a period that is thirty or more days in duration. Cavazos acknowledges that the State

established that multiple acts of sexual abuse occurred, but he argues that the State

did not prove that these acts occurred over the requisite time period of thirty days or

more.

A. Standard of Review

When reviewing the sufficiency of the evidence, we view all of the evidence

in the light most favorable to the verdict to determine whether any rational factfinder

could have found the essential elements of the offense beyond a reasonable doubt.

See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Nisbett v. State, 552 S.W.3d 244,

262 (Tex. Crim. App. 2018). The jurors are the exclusive judges of the facts and the

weight to be given to the testimony. Bartlett v. State, 270 S.W.3d 147, 150 (Tex.

Crim. App. 2008); see Adames v. State, 353 S.W.3d 854, 860 (Tex. Crim. App. 2011)

7 (stating that role of factfinder is “as the sole judge of the weight and credibility of

the evidence after drawing reasonable inferences from the evidence”). The jury, as

the sole judge of credibility, may accept one version of the facts and reject another,

and it may reject any part of a witness’s testimony. Rivera v. State, 507 S.W.3d 844,

853 (Tex. App.—Houston [1st Dist.] 2016, pet. ref’d); see Bohannan v. State, 546

S.W.3d 166, 178 (Tex. Crim. App. 2017) (stating that factfinder has duty to resolve

conflicts in testimony, to weigh evidence, and to draw reasonable inferences from

basic facts to ultimate facts).

We may not re-evaluate the weight and credibility of the evidence or substitute

our judgment for that of the factfinder. Bohannan, 546 S.W.3d at 178; Williams v.

State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007); see also Nisbett, 552 S.W.3d

at 262 (“A court’s role on appeal is restricted to guarding against the rare occurrence

when the factfinder does not act rationally.”). We resolve any inconsistences in the

evidence in favor of the verdict. Bohannan, 546 S.W.3d at 178; see also Murray v.

State, 457 S.W.3d 446, 448–49 (Tex. Crim. App. 2015) (“When the record supports

conflicting inferences, we presume that the factfinder resolved the conflicts in favor

of the verdict, and we defer to that determination.”).

A criminal conviction may be based on circumstantial evidence. Merritt v.

State, 368 S.W.3d 516, 525 (Tex. Crim. App. 2012). Circumstantial evidence is as

probative as direct evidence in establishing guilt, and circumstantial evidence alone

8 can be sufficient to establish guilt. Nisbett, 552 S.W.3d at 262. “Each fact need not

point directly and independently to the guilt of the appellant, as long as the

cumulative force of all the incriminating circumstances is sufficient to support the

conviction.” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). We must

consider the evidence cumulatively and may not “use a ‘divide and conquer’ strategy

for evaluating the sufficiency of the evidence.” Nisbett, 552 S.W.3d at 262.

B. Continuous Sexual Abuse of a Child

To establish that Cavazos committed the offense of continuous sexual abuse

of a child, the State was required to prove that during a period that is thirty days or

more in duration, Cavazos, who was 17 years of age or older, committed two or more

acts of sexual abuse against Morgan, a child younger than 14 years of age. See TEX.

PENAL CODE ANN. § 21.02(b), (c) (defining “act of sexual abuse” to include act that

constitutes aggravated sexual assault); id. § 22.021(a)(1)(B) (setting out elements of

aggravated sexual assault of child). On appeal, Cavazos does not dispute that he

committed two or more acts of sexual abuse against Morgan. Instead, he argues that

the State failed to establish that he committed the acts over a period of time that is

thirty or more days in duration.

The Texas Legislature created the offense of continuous sexual abuse of a

child “in response to a need to address sexual assaults against young children who

are normally unable to identify the exact dates of the offenses when there are

9 ongoing acts of sexual abuse.” Baez v. State, 486 S.W.3d 592, 595 (Tex. App.—San

Antonio 2015, pet. ref’d) (quoting Michell v. State, 381 S.W.3d 554, 561 (Tex.

App.—Eastland 2012, no pet.)). The primary purpose for specifying a date in an

indictment is to show that the prosecution is not barred by the statute of limitations,

but neither continuous sexual abuse of a child nor aggravated sexual assault of a

child has a period of limitations. Smith v. State, 340 S.W.3d 41, 48 (Tex. App.—

Houston [1st Dist.] 2011, no pet.). However, although the State is not required to

prove the exact dates on which the specific acts of sexual abuse occurred in a

continuous sexual abuse case, “the offense does require proof that two or more acts

of sexual abuse occurred during a period of thirty days or more.” Garner v. State,

523 S.W.3d 266, 271 (Tex. App.—Dallas 2017, no pet.); see TEX. PENAL CODE ANN.

§ 21.02(d) (providing that jury is not required to agree unanimously on which

specific acts of sexual abuse were committed or exact date on which those acts were

committed, but jury must agree unanimously that defendant, during period that is 30

or more days in duration, committed two or more acts of sexual abuse); Buxton v.

State, 526 S.W.3d 666, 676 (Tex. App.—Houston [1st Dist.] 2017, pet. ref’d).

The testimony of a child victim alone is sufficient to support a conviction for

continuous sexual abuse of a child. Garner, 523 S.W.3d at 271; TEX. CODE CRIM.

PROC. ANN. art. 38.07. The Court of Criminal Appeals has cautioned that

“[e]specially where young children are involved,” courts should not “impose

10 unrealistic expectations regarding proof of when an offense actually occurred.”

Dixon v. State, 201 S.W.3d 731, 736 (Tex. Crim. App. 2006); Sledge v. State, 953

S.W.2d 253, 256 n.8 (Tex. Crim. App. 1997) (“[I]t is not often that a child knows,

even within a few days, the date that she was sexually assaulted. And, the younger

the child, the greater the possibility that her abuser could never be convicted.”).

Here, Cavazos argues that the State presented evidence that an incident

occurred in December 2016, which led to Cindy seeking medical attention for

Morgan and Morgan’s outcry, but the evidence concerning when any other incidents

occurred is entirely speculative. Cavazos acknowledges that Morgan testified the

abuse occurred “lots of times” and occurred in both the Webster and Alvin

apartments, but Morgan did not testify that she knew when her family moved from

Webster to Alvin or that more than thirty days passed in between acts of abuse at the

Webster apartment and acts of abuse at the Alvin apartment.

Morgan, who was ten years old at the time of trial, was not able to provide

specific dates for when any acts of sexual abuse occurred. Cindy testified that

Cavazos lived with her and Morgan in League City until they moved to Webster in

August or September 2015. They lived in Webster until May 2016, when they moved

to Alvin. They were living in Alvin at the time Morgan made her outcry in December

2016.

11 Morgan testified concerning the acts of abuse that Cavazos committed. She

stated that the first time she could remember an act happening, she was living in

Webster, and Cavazos would abuse her after she came home from school and before

Cindy came home from work. She testified that the abuse occurred on “[m]ore than

one day” and “[l]ots of times.” She also testified that the various acts of abuse

occurred while she lived in Webster and in Alvin. Morgan also had the following

exchange with the prosecutor:

State: And did it happen, like, every day, every week, every other day? How often would you describe how often it happened? Morgan: Every day, week. State: Every day in a week? Tell me what you mean by that. How often was it happening? Morgan: Like, it would happen every day and some weeks. Like, weeks, too. As the week go by, it would happen. State: . . . And so what you’re saying is—correct me if I’m wrong, [Morgan]. It would happen every couple days and it kept happening is what you’re saying? Morgan: Yes. State: Okay. So, whenever you move into the Webster house to when you move out of the Webster house, is this happening over and over the whole time you live there? Morgan: Yes. State: Okay. All right. So is that what you mean by happening, like, week after week after week? Morgan: Yes.

Morgan stated that the abuse occurred when she was in “first and second grade.” 12 In addition to her testimony that the abuse happened “lots of times,” Morgan

agreed with the prosecutor that the abuse occurred “over and over the whole time”

she lived in the Webster apartment, and she testified that the abuse continued when

her family moved to the Alvin apartment. Cindy’s testimony established that the

family lived in the Webster apartment for approximately nine months before they

moved to Alvin. Morgan’s testimony, combined with Cindy’s testimony describing

when the family lived in the Webster and Alvin apartments, is sufficient to show that

the acts of sexual abuse against Morgan occurred during a period that was thirty days

or more in duration. See TEX. PENAL CODE ANN. § 21.02(b), (d); Garner, 523

S.W.3d at 271 (stating that State is not required to prove specific dates on which acts

of abuse occurred in continuous sexual abuse case, but it must prove “that two or

more acts of sexual abuse occurred during a period of thirty days or more”); see also

Hernandez v. State, No. 05-17-00560-CR, 2018 WL 2316026, at *4 (Tex. App.—

Dallas May 22, 2018, pet. ref’d) (mem. op., not designated for publication) (“While

the girls were unable to provide specific dates for when the abuse occurred, they

referred to the sexual abuse occurring at different houses and their mother was able

to provide a timeline of when they resided at those houses.”); Aguilar v. State, No.

04-14-00532-CR, 2015 WL 4638096, at *3 (Tex. App.—San Antonio July 15, 2015,

pet. ref’d) (mem. op., not designated for publication) (“Precise dates of events are

not required to establish a conviction for continuous sexual abuse, and [the child

13 complainant’s] description of the ongoing sexual assaults is exactly what the

Legislature intended when enacting the statute governing the offense of continuous

sexual abuse.”).

We conclude that, when viewing the evidence in the light most favorable to

the verdict, a reasonable jury could have found beyond a reasonable doubt that

Cavazos committed two or more acts of sexual abuse against Morgan during a period

that is thirty or more days in duration. See TEX. PENAL CODE ANN. § 21.02(b);

Nisbett, 552 S.W.3d at 262; Garner, 523 S.W.3d at 271. We hold that the State

presented sufficient evidence to support Cavazos’s conviction.

We overrule Cavazos’s sole issue.

Conclusion

We affirm the judgment of the trial court.

April L. Farris Justice

Panel consists of Chief Justice Radack and Justices Goodman and Farris.

Do not publish. TEX. R. APP. P. 47.2(b).