Jose Arturo Quintana v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: December 10, 2024
• Docket: 01-23-00815-CR
• Status: Published

Opinion

Opinion issued December 10, 2024

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-23-00815-CR ——————————— JOSE ARTURO QUINTANA, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the County Criminal Court at Law No. 9 Harris County, Texas Trial Court Case No. 2442189

MEMORANDUM OPINION

A jury found Jose Arturo Quintana guilty of the misdemeanor offense of

indecent assault.1 The trial court assessed his punishment at confinement for one

1 See Act of May 24, 2019, 86th Leg., R.S., ch. 955, § 1, 2019 Tex. Gen. Laws 2768, 2768–69 (amended 2023) (current version at TEX. PENAL CODE § 22.012). Because the offense in this case was committed prior to the effective date of the amendment, year, suspended his sentence, and placed him on community supervision for 18

months. Quintana appeals.

In his sole issue, Quintana contends the evidence is legally insufficient to

support his conviction because it fails to establish that the touching at issue, which

occurred while he was rendering healthcare as a hospital employee, was without the

complainant’s consent.

We affirm.

Background

At the time of the events, Quintana was working as a “patient care technician”

in the emergency department of Memorial Hermann Katy Hospital.

The complainant, eighteen-year-old A.M., testified that the day after she

received a meningitis vaccination she was feeling “very hazy” and “really, really

dazed.” She was having difficulty walking and kept “passing out.” Her mother took

her to the emergency room at Memorial Hermann.

At the hospital, A.M. was taken into the treatment area in a wheelchair. Due

to COVID-19 protections in place, her mother remained in the waiting room.

In the treatment area, Quintana, whom A.M. described as wearing blue scrubs

and having gray hair and a “tribal tattoo” on his arm, wheeled A.M. to an area behind

September 1, 2023, all further references in this opinion to section 22.012 are to the former version of the statute unless otherwise indicated. See Act of May 26, 2023, 88th Leg., R.S., ch. 659, § 2, 2023 Tex. Gen. Laws 1611, 1611.

2 a curtain to obtain a blood sample. A.M. was wearing a sweatshirt over an athletic

shirt and sports bra. Quintana or a nurse helped A.M. remove her sweatshirt and

then drew the sample from her arm. A.M. also received medication for dizziness.

As Quintana later wheeled A.M. down a hallway to another area, he asked her

if she wanted to put her sweatshirt back on. She stated that she did. Quintana

wheeled A.M. into a room and closed the door behind them. A.M. described the

room as dimly lit and having a “moving computer,” a chair, and a “full IV bag.”

According to A.M., while they were inside the room, Quintana lifted her shirt

and sports bra and touched her breasts. She stated: “He did it with an open hand,

and softly, like gently touching them but having a full hand on it and gently pulling

it, if that makes sense.” He then moved to the side of the wheelchair and “reached

over and started touching [her] side and working his way down to [her] pants.” He

touched her hips and “pelvic area,” and he “squeezed it.” He was “in [her] pajamas,

Spandex and underwear.” A.M. explained that he “swooped his hand from one hip

and then moved it to the other hip and grabbed that hip, too, and then went back, did

the same thing to the other hip.” He “just kept asking if it hurt.” A.M. noted that

she had not come to the hospital complaining of pain.

A.M. further testified that Quintana “went back up and started touching [her

breasts] again, and then he moved from the side of the wheelchair to in front of

3 [her].” He said, “You’re so beautiful,” and tried to hug her. He then pulled down

her sports bra and shirt, put her sweatshirt on, and wheeled her to the waiting room.

A.M. stated that she did not expect Quintana to touch her breasts and that, in

her experience, such examinations took place while she was lying on a bed in a gown

and were performed by a female nurse who explained the procedures.

A.M.’s mother testified that when A.M. returned to the waiting room, she was

“scared” and “upset.” On the way to the car, A.M. told her mother that she had been

touched inappropriately. A.M.’s mother immediately went back into the hospital

and reported what had occurred to a charge nurse and a security officer. Once at

home, she reported the matter to the police.

Harris County District Attorney’s Office Investigator L. Winters testified that

A.M.’s medical records reflected that Quintana had attended to her during her visit

to Memorial Hermann on April 6, 2022. A.M.’s chief presenting complaint was:

“Had meningitis vaccine yesterday. Now have dizziness and weakness.” The

diagnosis on discharge was dizziness and “conversion disorder”—meaning A.M.

was having hallucinations and “seeing or hearing things that [were] not there.”

The trial court admitted into evidence A.M.’s medical records, Quintana’s

employee records, hospital surveillance video and still photographs of Quintana

assisting A.M. in a hallway, and audio recordings of Investigator Winters’s

interviews with Quintana.

4 During an interview with Investigator Winters, Quintana stated that A.M. was

“extremely lethargic” and “confused” when she came into the hospital, and she

complained about pain in her neck and arm from a vaccination.

In the initial triage area, A.M. was wearing a long-sleeved sweatshirt, and it

was difficult to access her arm to obtain a blood sample. A.M. stated that she wore

a shirt underneath, and Quintana helped her remove her sweatshirt. After the nurse

finished, she directed Quintana to move A.M. to a “results pending” area.

According to Quintana, while moving A.M. in a wheelchair down a hallway,

he asked her if she wanted to put her sweatshirt back on. She said yes. Quintana

explained to Investigator Winters that because A.M. was in pain and needed help,

and the wheelchair impeded the narrow hallway, he wheeled her into a nearby room.

He closed the door behind them and put on a pair of gloves. He described difficulty

putting on A.M.’s sweatshirt because of her pain. He denied having touched A.M.

as she alleged.

The jury convicted Quintana of the offense of indecent assault for having

touched A.M.’s breast without her consent. Quintana now appeals.

Sufficiency of the Evidence

In his sole issue, Quintana argues that the evidence is legally insufficient to

support his conviction.

5 A. Standard of Review

We review a challenge to the sufficiency of the evidence under the standard

set forth in Jackson v. Virginia, 443 U.S. 307, 319 (1979). Brooks v. State, 323

S.W.3d 893, 912 (Tex. Crim. App. 2010). Under the Jackson standard, “we consider

all of the evidence in the light most favorable to the verdict and determine whether,

based on that evidence and reasonable inferences therefrom, a rational juror could

have found the essential elements of the crime beyond a reasonable doubt.” Isassi v.

State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010).

In conducting our review, we defer to the factfinder to “fairly resolve conflicts

in testimony, to weigh the evidence, and to draw reasonable inferences from basic

facts to ultimate facts.” Id. (quoting Jackson, 443 U.S. at 318–19). The jury, as the

sole judge of the facts and credibility of the witnesses, may choose to believe or

disbelieve any witness or portion of their testimony. Sharp v. State, 707 S.W.2d 611,

614 (Tex. Crim. App. 1986). We presume that the jury resolved any conflicts in

favor of the verdict and defer to that determination. Merritt v. State, 368 S.W.3d 516,

525–26 (Tex. Crim. App. 2012).

“The key question is whether the evidence presented actually supports a

conclusion that the defendant committed the crime that was charged.” Morgan v.

State, 501 S.W.3d 84, 89 (Tex. Crim. App. 2016) (internal quotations omitted). And

6 our role on appeal is “restricted to guarding against the rare occurrence when a fact

finder does not act rationally.” Id. (internal quotations omitted).

Further, in our review, we treat direct and circumstantial evidence equally:

“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.”

Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).

B. Governing Law

A person commits the offense of indecent assault if, “without the other

person’s consent and with the intent to arouse or gratify the sexual desire of any

person, the person . . . touches the . . . breast . . . of another person.” TEX. PENAL

CODE § 22.012(a).

C. Discussion

Quintana argues that the evidence is legally insufficient “because the record

does not show beyond a reasonable doubt that the touching at issue, by a technician

in an emergency room, was done without consent.” He argues that A.M. “broadly

consented” to “reasonable and necessary medical care” when she “signed in” to the

emergency room.

Quintana does not challenge the sufficiency of the evidence supporting his

conviction generally or supporting the other elements of the offense—that he

touched A.M.’s breast or his intent. See id. Accordingly, we limit our review to the

7 essential element of lack of consent—whether the State presented evidence that

Quintana touched A.M.’s breast without her consent. See id.; TEX. R. APP. P. 47.1.2

The undisputed evidence shows that Quintana, while pushing A.M. in a

wheelchair down a hallway toward a waiting area for lab results, took her into a

dimly lit room and closed the door.

According to A.M., while they were alone in the room and she was seated in

the wheelchair, Quintana lifted her shirt and sports bra and touched her breasts with

a “full” and “open” hand, touched her hips inside her clothing, and touched her

breasts again. And he told her that she was beautiful and attempted to hug her.

A.M. testified that she did not come to the hospital seeking medical treatment

for pain and did not ask or expect Quintana to touch her breasts. And, in her

experience, examinations of such nature ordinarily occurred while she was lying on

a bed in a gown and were performed by a female nurse who communicated with her

during the procedure.

2 See also English v. State, No. 01-20-00139-CR, 2021 WL 4202159, at *3 (Tex. App.—Houston [1st Dist.] Sept. 16, 2021, no pet.) (mem. op., not designated for publication); Ostrander v. State, No. 14-20-00286-CR, 2021 WL 2470390, at *7 (Tex. App.—Houston [14th Dist.] June 17, 2021, pet. ref’d) (mem. op., not designated for publication) (“Because appellant has challenged the proof relating to just a single element of both offenses, we limit our review accordingly.”); see, e.g., Burks v. State, No. PD-0992-15, 2017 WL 3443982, at *1 (Tex. Crim. App. June 28, 2017) (not designated for publication) (holding that reviewing court should not address unbriefed elements in legal sufficiency challenge). 8 The hospital’s medical record of A.M.’s visit reflects that her chief presenting

complaint was: “Had meningitis vaccine yesterday. Now have dizziness and

weakness.” Nothing reflects that she had any complaint about, or sought any

medical care for, her breasts. And there is no evidence that Quintana made any entry

in her medical record regarding such an exam. Notably, the hospital’s records show

that Quintana was employed as a “patient care technician,” providing “non-nursing”

patient care. There is no evidence that he is a doctor or a nurse.

The jury, as the sole judge of the facts and credibility of the witnesses, could

have reasonably chosen to credit A.M.’s testimony regarding the circumstances in

which she was touched. See Sharp, 707 S.W.2d at 614. And a jury may infer a lack

of consent from circumstantial evidence. See Taylor v. State, 508 S.W.2d 393, 397

(Tex. Crim. App. 1974); Lee v. State, 962 S.W.2d 171, 175 (Tex. App.—Houston

[1st Dist.] 1998, pet. ref’d).

Here, the jury could have reasonably inferred that A.M. did not consent to

Quintana, who is not a doctor or a nurse, taking her into a room, lifting her shirt and

sports bra, and touching her breast. See, e.g., Flores v. State, No. 01-20-00213-CR,

2022 WL 961554, at *9 (Tex. App.—Houston [1st Dist.] Mar. 31, 2022), aff’d, 679

S.W.3d 695 (Tex. Crim. App. 2023) (holding that jury could reasonably infer from

circumstantial evidence that defendant acted without complainant’s consent in

assaulting her); McGee v. State, No. 04-07-00697-CR, 2009 WL 618692, at *2 (Tex.

9 App.—San Antonio Mar. 11, 2009, no pet.) (mem. op., not designated for

publication) (holding that rational jury could infer from circumstances lack of

consent to assaultive conduct).

Instead, the jury could have reasonably concluded that the circumstantial

evidence established that the touching went beyond anything incidental or accidental

that might occur while assisting with a sweatshirt and exceeded A.M.’s consent for

reasonable and necessary medical care at the hospital. See Isassi, 330 S.W.3d at 638

(we defer to factfinder to weigh evidence and draw reasonable inferences).

Quintana further argues that, “[u]nder new Penal Code § 22.012, effective

September 1, 2023, for a medical provider providing a treatment or service to be

convicted of indecent assault requires an additional element be proven, that the touch

was ‘beyond the scope of generally accepted practices for the treatment or service,’”

citing Penal Code section 22.012(b)(1)(B). He seems to suggest that the evidence is

insufficient in this case because the State failed to present evidence that the touching

at issue was “beyond the scope of generally accepted practices for the treatment or

service.” He notes that no expert testimony was presented on the issue.

In 2023, the Texas Legislature amended section 22.012(b) to elevate the

offense of indecent assault from a Class A misdemeanor to a state jail felony under

certain circumstances:

(b) An offense under this section is a Class A misdemeanor, except that the offense is: 10 (1) a state jail felony if it is shown on the trial of the offense that: ... (B) the defendant is a health care services provider or a mental health services provider and the act is: (i) committed during the course of providing a treatment or service to the victim; and (ii) beyond the scope of generally accepted practices for the treatment or service.

See TEX. PENAL CODE § 22.012(b)(1)(B) (current version).

Thus, the legislature authorized increasing the degree of the offense and,

thereby, the range of punishment when committed by a health care services provider

under certain circumstances. See id. The amendment does not, as Quintana argues,

“require that an additional element be proven” in order “for a medical provider

providing a treatment or service to be convicted of indecent assault” as a general

principle. Rather, the element in question in subsection (b)(1)(B)(ii) must only be

shown in order to elevate the offense from a Class A misdemeanor to a state jail

felony. Id. § 22.012(b)(1)(B)(ii).

Regardless, the offense in this case occurred on April 6, 2022. Thus, the

amended statute, which became effective on September 1, 2023, does not apply.

Further, even if the amended statute did apply, Quintana was charged with and

convicted of a Class A misdemeanor, not a state jail felony.

11 Accordingly, viewing all the evidence in the light most favorable to the jury’s

verdict, and based on the cumulative force of the circumstantial evidence and the

reasonable inferences to be drawn, we conclude that the jury here could have

reasonably found that Quintana touched A.M.’s breast without her consent. See TEX.

PENAL CODE § 22.012(a); see also Isassi, 330 S.W.3d at 638. Again, Quintana does

not challenge the evidence supporting the remaining elements of the offense. See

TEX. PENAL CODE § 22.012(a). As a result, we hold that the evidence is legally

sufficient to support Quintana’s conviction for the offense of indecent assault.

We overrule Quintana’s sole issue.

Conclusion

We affirm the trial court’s judgment.

Terry Adams Chief Justice

Panel consists of Chief Justice Adams and Justices Rivas-Molloy and Gunn.

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