Juan Cerda Alvarado v. State

Opinion

Opinion issued December 22, 2016

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-14-00894-CR ——————————— JUAN CERDA ALVARADO, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 240th District Court Fort Bend County, Texas Trial Court Case No. 11-DCR-058831

MEMORANDUM OPINION

A jury convicted Juan Cerda Alvarado on one count of aggravated sexual

assault of an eight-year-old child, Joan,1 and assessed punishment at 99 years’

1 To protect the privacy of the complainant, we identify her by a pseudonym and identify her mother by her initials. confinement. In two issues, Alvarado argues that the evidence was legally and

factually insufficient to support the jury’s verdict. We affirm.

Background

F.B., the complainant’s mother, was married to Alvarado. F.B., Alvarado,

and F.B.’s children lived together. One evening, F.B. returned home from a party

and saw shadows underneath the bathroom door while the shower was running. As

she reached for the door, Alvarado, whose face, body, shirt, and pants were “all

wet,” came out of the bathroom. F.B. realized that her eight-year-old daughter,

Joan, was still in the shower and asked Alvarado why he was in the bathroom at

the same time as Joan and how he got wet. Alvarado replied that he “needed to use

the bathroom” and “slipped” while in the bathroom. F.B. waited for Joan to finish

showering, and after Joan left the bathroom, F.B. took her into her bedroom and

asked her what had happened. As F.B. questioned Joan, Alvarado screamed outside

the bedroom door, “Don’t believe her. She’s a liar. Nothing of what she says is

true.”

Joan initially hesitated when answering F.B.’s questions and gave

conflicting answers. She first confirmed Alvarado’s story and stated that he slipped

while he was in the bathroom. After further questioning, however, Joan told F.B.

that Alvarado put his “thing” in her. F.B. then left the house with Joan and her

other children and went to the police the next day.

2 The police sent F.B. to meet with a detective, M. Escobedo, who directed

her to a forensic interviewer, Mayra Domingue. Domingue interviewed Joan twice.

During the second interview, Joan stated that Alvarado “pulled her out of the

bathtub” while she was showering, got behind her, then “pulled out his weenie and

put it in her butt” while pressing hard on her stomach with his hands. Using

anatomically correct drawings of male and female figures, she identified a

“weenie” as a penis and clarified that by “butt” she was referring to her buttocks

and specifically to inside the crease. Joan said that she never saw Alvarado’s

“weenie” during the sexual encounter in the bathroom, but she felt something

“sticking up” and felt something that was “squishy.” She also described a similar

encounter with Alvarado in the living room of the family home on a different

occasion.

After listening to Joan’s description of events during the second interview,

Domingue sent Joan to the hospital for a medical examination to collect DNA

evidence and look for signs of trauma or sexual abuse. Tiffany Dusang, a forensic

nurse examiner, performed this examination. Joan described the sexual encounter

in the bathroom with Alvarado to Dusang, as well as a similar instance in her

family’s living room when she was six years old. She told Dusang, “The part boys

have where they urinate he put in my bottom where I poo poo, in the back. I was

bleeding.” She also told Dusang that she had experienced five to ten such sexual

3 encounters with Alvarado, starting when she was six. The medical exam, which

occurred three days after the sexual encounter in the bathroom, revealed no

physical signs of trauma or sexual abuse. According to the Dusang, the lack of

physical trauma was not surprising because bruising and small tears in the anus

heal rapidly in children.

At trial, the State presented testimony from F.B., Domingue, Joan,

Escobedo, and Dusang. Joan testified that Alvarado put his “thing” that he uses to

go “pee pee” in her back where the “poo” comes out and that it hurt her and made

her feel weak. Joan testified that she called Alvarado “Dad” at the time that he

lived with her and the rest of her family. She was initially unable to identify

Alvarado in the courtroom, saying she did not remember what he looked like and

that his skin was “negro” or “black.” After further questioning, she was able to

identify him as the defendant.

Alvarado did not present a case in chief. Instead, his attorney relied on cross

examination of the State’s witnesses and argued to the jury that Joan’s account was

unreliable and that, at most, the evidence supported a simple assault, rather than

aggravated sexual assault.

The jury found Alvarado guilty of aggravated sexual assault of a child and

sentenced him to 99 years’ confinement. Alvarado appeals his conviction.

4 Legally Sufficient Evidence Supports the Judgment

In his first issue, Alvarado contends that the evidence is legally insufficient

for four reasons: (1) Joan never testified that her anus was contacted or penetrated;

(2) Joan never saw the assailant’s penis; (3) Joan failed to identify Alvarado in

court; and (4) there was no direct witness, DNA evidence, or other physical

evidence. Alvarado argues that a jury could have found only that an unknown

person touched Joan’s buttocks without her consent, that the touching was

offensive and caused pain, and that the touching was done by an unknown means.

A. Standard of review and applicable law

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

enunciated in Jackson v. Virginia, 443 U.S. 307, 318–20, 99 S. Ct. 2781, 2788–89

(1979). See Brooks v. State, 323 S.W.3d 893, 894–913 (Tex. Crim. App. 2010);

Ervin v. State, 331 S.W.3d 49, 52–56 (Tex. App.—Houston [1st Dist.] 2010, pet.

ref’d). Under the Jackson standard, evidence is insufficient when, considered in the

light most favorable to the verdict, no rational factfinder could have found that

each essential element of the charged offense was proven beyond a reasonable

doubt. See Jackson, 443 U.S. at 317–19, 99 S. Ct. at 2788–89; Laster v. State, 275

S.W.3d 512, 517 (Tex. Crim. App. 2009). We consider both direct and

circumstantial evidence as well as all reasonable inferences that may be drawn

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

5 Jurors are the exclusive judges of the facts, the credibility of the witnesses,

and the weight to be given to witness testimony. Penagraph v. State, 623 S.W.2d

341, 343 (Tex. Crim. App. [Panel Op.] 1981); Jaggers v. State, 125 S.W.3d 661,

672 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d). The jury may choose to

believe or disbelieve any part of a witness’s testimony. See Davis v. State, 177

S.W.3d 355, 358 (Tex. App.—Houston [1st Dist.] 2005, no pet.). Inconsistencies

or contradictions in a witness’s testimony do not destroy that testimony as a matter

of law. McDonald v. State, 462 S.W.2d 40, 41 (Tex. Crim. App. 1970).

The Jackson standard defers to the factfinder to resolve any conflicts in the

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

facts to ultimate facts.” Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Clayton, 235

S.W.3d at 778. An appellate court presumes the factfinder resolved any conflicts in

the evidence in favor of the verdict and defers to that resolution, provided that the

resolution is rational. See Jackson, 443 U.S. at 326, 99 S. Ct. at 2793. If an

appellate court finds the evidence insufficient under this standard, it must reverse

the judgment and enter an order of acquittal. See Tibbs v. Florida, 457 U.S. 31, 41,

102 S. Ct. 2211, 2218 (1982).

A person commits the offense of aggravated sexual assault of a child if—

among other acts—that person intentionally or knowingly causes the contact or

penetration of the anus of a child, younger than 14 years old, by the sexual organ

6 of the actor. See TEX. PENAL CODE ANN. § 22.021(a). The indictment in this case

alleged that Alvarado “intentionally and knowingly cause[d] the contact and

penetration of [Joan’s] anus,” requiring the State to prove intent and penetration.

B. Joan was not required to testify using the term “anus”

Alvarado contends that the evidence of penetration is insufficient to support

his conviction because Joan “never said her anus was contacted.” A complainant’s

testimony is legally sufficient to support a jury finding that a defendant contacted

or penetrated a particular part of the complainant’s body. Garcia v. State, 563

S.W.2d 925, 928 (Tex. Crim. App. [Panel Op.] 1978). For example, in Bargas v.

State, a child complainant testified that the defendant put his “private spot” on her

“private spot” in her “front private area” while he was “shaking up and down” and

grunting. 252 S.W.3d 876, 885 (Tex. App.—Houston [14th Dist.] 2008, no pet.).

Despite the complainant’s “unsophisticated terminology[,]” the complainant’s

detailed account of the sexual assault was sufficient to support a conviction. Id. at

888.

Much as the complainant in Bargas was able to give a sufficiently detailed

description of her sexual assault, Joan stated that it “hurt” when Alvarado put his

“weenie inside her butt,” clarifying that he put “his thing” that he uses to urinate in

her where the “poo” comes out. She also identified the “butt” using anatomical

drawings. Joan did not use the word “anus”; however, a child complainant does not

7 need to use the exact statutory language in describing the genitals or other body

parts. Clark v. State, 558 S.W.2d 887, 889 (Tex. Crim. App. 1977); Carr v. State,

477 S.W.3d 335, 340–41 (Tex. App.—Houston [14th Dist.] 2015, pet. ref’d);

Bargas, 252 S.W.3d at 888. Joan testified that after Alvarado penetrated her, his

body moved back and forth. Based on Joan’s testimony, the jury could reasonably

infer that Alvarado penetrated Joan’s anus.

C. Seeing defendant’s sexual organ

Alvarado also argues that, because Joan “admitted she never saw the penis,”

there is insufficient evidence to prove that any contact or penetration was by his

sexual organ. A complainant may rely on senses other than sight to conclude that

contact with an assailant’s sexual organ occurred. Carr, 477 S.W.3d at 340–41. In

Carr v. State, the defendant blindfolded the complainant and told her to lick peanut

butter off his “finger,” but the complainant believed the peanut butter was actually

on his “private part.” Id. at 340. The complainant said that the object she licked did

not feel like a finger or an inanimate object, like a spoon. Id. The complainant also

testified to an earlier incident of anal sex with the defendant, and that testimony

supported the complainant’s ability to discern that the object was the defendant’s

penis. Id. at 338–39. The court held that the evidence was sufficient to conclude

that the complainant had contact with the defendant’s sexual organ. Id. at 341.

8 Just as the complainant in Carr believed the defendant’s sexual organ

contacted her based on its feel, Joan testified that Alvarado “put his weenie inside

her butt” and told the forensic examiner that she felt something “sticking up” as

well as something “squishy.” Also, as with the previous sexual encounter

experienced by the complainant in Carr, Joan told the forensic examiner in detail

about a previous incident of anal sex with Alvarado and stated that he had

assaulted her in that manner five to ten times in total. She testified that Alvarado

penetrated her with his “weenie,” identifying a “weenie” by circling the penis on

an anatomical drawing. Joan also described feelings of pain and weakness. She

also testified that Alvarado’s hands were pressing on her stomach throughout the

sexual encounter, indicating that Alvarado did more than “offensively touch” Joan.

Joan’s feelings of pain, description of Alvarado’s hand placement and body

motion, and ability to identify the penis are all consistent with the conclusion that

Alvarado penetrated her anus with his sexual organ, not his finger or an unknown

object. Although Joan never saw Alvarado’s penis during this encounter, there is

sufficient evidence for a rational jury to have concluded that Joan knew what

Alvarado’s sexual organ felt like and that he caused the penetration of her anus

with his sexual organ.

9 D. Joan’s identification of Alvarado

Alvarado further argues that there was insufficient evidence to prove that he

was the assailant because Joan “utterly failed to identify [Alvarado] in open court.”

Identity can be proven by direct or circumstantial evidence. Earls v. State, 707

S.W.2d 82, 85 (Tex. Crim. App. 1986); Conelly v. State, 451 S.W.3d 471, 475

(Tex. App.—Houston [1st Dist.] 2014, no pet.).

Failure to identify the defendant on one occasion does not discredit the

witness’s testimony as a matter of law but only provides evidence for a jury to

weigh the witness’s credibility. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim.

App. 1986). For example, in Jones v. State, the complainant was unable to identify

her assailant in the courtroom, but she correctly identified him in a photo. No. 10-

08-00261-CR, 2007 WL 3858016, at *2 (Tex. App.—Waco Nov. 18, 2009, pet.

ref’d) (mem. op., not designated for publication). The complainant also knew her

assailant’s name and referred to him as her uncle. Id. Using the Jackson standard

for legal-sufficiency review, the court in Jones held that there was sufficient

evidence of the assailant’s identity to deny a motion for directed verdict. Id.

Although Joan was initially unable to identify Alvarado as the assailant in

court, a rational jury could have concluded that Alvarado was the assailant based

on Joan’s testimony, her mother’s testimony, and other circumstantial evidence.

Joan identified Alvarado multiple times and in multiples ways, despite her initial

10 inability to identify him among the people in the courtroom. She identified

Alvarado as the person she called “Dad,” knew that he was her mother’s husband,

and subsequently correctly identified him in court when her attention was called to

the defense table, after her initial failure to do so. Joan’s testimony, during both the

forensic interview and the trial, described the entirety of the sexual assault inside

the bathroom with Alvarado. And Joan’s mother’s testimony that Alvarado was in

the bathroom with Joan when she came home corroborated Joan’s identification of

Alvarado as the assailant.

E. Physical evidence of trauma is not necessary for a conviction

Finally, Alvarado argues that the evidence is insufficient because “no other

witnesses had personal knowledge of the assault, no anal trauma was detected,

[and] no incriminating DNA, fingerprints, or other physical evidence was

produced.” But neither DNA evidence nor other physical evidence of trauma or

abuse is required to support a sexual-assault conviction. Bargas, 252 S.W.3d at

888; Pena v. State, 441 S.W.3d 635, 641 (Tex. App.—Houston [1st Dist.] 2014,

pet. ref’d); see TEX. CODE CRIM. PROC. ANN. art. 38.07 (complainant’s testimony is

sufficient to support conviction); Garcia, 563 S.W.2d at 928 (same). A detailed

account of the sexual encounter is sufficient to support a sexual-assault conviction.

Bargas, 252 S.W.3d at 888; see TEX. CODE CRIM. PROC. ANN. art. 38.07. Joan gave

such an account.

11 Further, a rational jury could credit Domingue’s testimony that the absence

of physical trauma at the time of the examination was consistent with the assault

alleged. Although Joan’s medical examination—conducted three days after the

assault occurred—revealed no tears or bruising on or inside the anus, Domingue

testified that it was common to find no evidence of trauma to a child after that time

period because a child’s body heals quickly. Indeed, she testified based on

professional literature and her experience that only 1 to 3 percent of confirmed

child complainants of sexual assault to the anus show any physical symptoms of

trauma to the anus when examined. The jury could rationally have credited this

testimony.

Viewing the evidence in the light most favorable to the verdict, we hold that

the jury could rationally have determined that Alvarado sexually assaulted Joan in

the manner alleged in the indictment, and the evidence therefore satisfies the

Jackson standard for legal sufficiency. See Jackson, 443 U.S. at 318–20, 99 S. Ct.

at 2788–89; Brooks, 323 S.W.3d at 894–913. Accordingly, we overrule Alvarado’s

first issue.

Factual-Sufficiency Review Has Been Abolished

In his second issue, Alvarado argues that the evidence is factually

insufficient to support the jury’s verdict of guilty. To support his argument, he

12 relies entirely on Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996), and its

progeny.

The Court of Criminal Appeals, however, has expressly overruled Clewis

and abolished factual-sufficiency review of issues on which the State bore the

burden of proof at trial. See Brooks, 323 S.W.3d at 894–95 (plurality op.); id. at

926 (Cochran, J., concurring); see also Howard v. State, 333 S.W.3d 137, 138 n.2

(Tex. Crim. App. 2011) (explaining that Brooks “abolished factual-sufficiency

review”). Thus, “the Jackson v. Virginia legal-sufficiency standard is the only

standard that a reviewing court should apply in determining whether the evidence

is sufficient to support each element of a criminal offense that the State is required

to prove beyond a reasonable doubt.” Brooks, 323 S.W.3d at 895.

We have already held that the evidence is legally sufficient under the

Jackson standard to support the jury’s verdict. Alvarado’s second issue therefore

presents nothing for our review and is overruled.

13 Conclusion

We affirm the judgment of the trial court.

Harvey Brown Justice

Panel consists of Justices Jennings, Keyes, and Brown.

Justice Jennings, concurring.

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