Luis Arturo Espinal v. State

• Court: Court of Appeals of Texas
• Decided: February 21, 2008
• Docket: 01-07-00781-CR
• Status: Published

Opinion

Opinion issued February 21, 2008

In The

Court of Appeals

For The

First District of Texas

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NO. 01-07-00781-CR

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LUIS ARTURO ESPINAL, Appellant

v.

STATE OF TEXAS, Appellee

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On Appeal from the 248th District Court

Harris County, Texas

Trial Court Cause No. 1100207

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MEMORANDUM OPINION

          A jury convicted appellant, Luis Arturo Espinal, of aggravated sexual assault. See Tex. Pen. Code Ann. § 22.021 (Vernon Supp. 2007). The trial court assessed punishment at 35 years in prison. In one issue, appellant contends that the evidence was factually insufficient to support his conviction.

          We affirm.

Background

          In 2000, when she was seven years old, H.R. and her mother, Geomara, lived with appellant, who was Geomara’s boyfriend. After Geomara was arrested and deported to Honduras, H.R. continued to live with appellant. During this time, appellant slept in the same bed with H.R. It was also during this time that appellant began to touch H.R.’s “private parts” through her clothes at night. Ultimately, appellant had sexual intercourse with seven-year-old H.R. by placing his penis in her vagina. At the time, H.R. told no one of the abuse except her six-year-old friend.

          When Geomara returned from Honduras, H.R. did not tell her mother about the abuse. H.R. and Geomara continued to live with appellant for a period. Then, after appellant and Geomara ended their relationship, H.R. and her mother no longer lived with appellant.

          Five years passed, and H.R. never told her mother about the abuse by appellant. In 2006, H.R. skipped school to spend the day at her boyfriend’s apartment. When she came home that day, twelve-year-old H.R. had a “hickey” on her neck. Her mother saw the “hickey” and found out that H.R. had skipped school.

          When Geomara became angry with H.R. for spending the day with a boy, H.R. told her mother that was “not the worst thing” that had happened to her. H.R. then told Geomara that appellant had “touched” her.

          Initially, Geomara did not believe H.R. Geomara thought that H.R. was lying to “cover up” skipping school. After three days, however, Geomara approached H.R. and asked H.R. if she was telling the truth. H.R. said that she was. Geomara then contacted an attorney, who contacted police. H.R. was taken to the Children’s Assessment Center, where she was interviewed by a forensic interviewer and underwent a physical examination by a medical doctor.

Factual Insufficiency

          In his sole issue, appellant contends, “The evidence is factually insufficient to support the jury’s verdict of guilty of aggravated sexual assault.”

A.      Standard of Review

          When conducting a factual-sufficiency review, we view all of the evidence in a neutral light. See Cain v. State, 958 S.W.2d 404, 408 (Tex. Crim. App. 1997). We will set the verdict aside only if (1) the evidence is so weak that the verdict is clearly wrong and manifestly unjust or (2) the verdict is against the great weight and preponderance of the evidence. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). Under the first prong of Johnson, we cannot conclude that a conviction is “clearly wrong” or “manifestly unjust” simply because, on the quantum of evidence admitted, we would have voted to acquit had we been on the jury. Watson v. State, 204 S.W.3d 404, 416–17 (Tex. Crim. App. 2006).

          Under the second prong of Johnson, we cannot declare that a conflict in the evidence justifies a new trial simply because we disagree with the jury’s resolution of that conflict. Id. Before finding that evidence is factually insufficient to support a verdict under the second prong of Johnson, we must be able to say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury’s verdict. Id.

          In conducting a factual-sufficiency review, we must discuss the evidence that, according to the appellant, most undermines the jury’s verdict. See Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).

B.      Analysis

          Pursuant to Penal Code section 22.021, a person commits aggravated sexual assault if he intentionally or knowingly causes the penetration of the sexual organ or anus of a child younger than 14 years of age by any means. See Tex. Pen. Code Ann. § 22.021(a)(1)(B)(i), 2(B) (Vernon Supp. 2007).

          At trial, H.R. testified that appellant put his penis in her “private part” when she was seven years old. H.R described in graphic and in specific detail the events surrounding appellant’s sexual abuse. H.R. testified that the abuse continued from December 2000 until May 2001. In addition, the forensic interviewer, who interviewed H.R., testified at trial. She related the details of what H.R. had reported to her about appellant’s sexual abuse. H.R.’s account given to the forensic interviewer was consistent with H.R.’s trial testimony.

          In support of his factual insufficiency challenge, appellant contends that H.R.’s medical examination at the Children’s Assessment Center in 2006 “did not reveal any evidence to support a finding of sexual abuse.” Appellant points out that the examining doctor testified that H.R.’s genital area appeared to be “normal.”

          Contrary to appellant’s contention, the lack of physical or forensic evidence is but a factor for the jury to consider in weighing the evidence. See Johnson v. State, 176 S.W.3d 74, 78 (Tex. App.—Houston [1st Dist.] 2004, pet. ref’d) (holding that differences in witness testimony and lack of physical evidence are factors for jury to consider in weighing evidence); Sandoval v. State, 52 S.W.3d 851, 854 & n. 1 (Tex. App.—Houston [1st Dist.] 2001, pet. ref’d) (indicating that child victim’s testimony alone is sufficient without corroborating medical evidence). As mentioned, H.R. testified that appellant placed his penis in her “private part,” i.e., her sexual organ. In other words, H.R. testified that appellant committed the offense of aggravated sexual assault. See Tex. Pen. Code Ann. § 22.021(a)(1)(B)(iii), 2(B). It is well-established that a child victim’s testimony alone is sufficient evidence to support a conviction for aggravated sexual assault. Tex. Code Crim. Proc. Ann. art. 38.07(Vernon 2005); Perez v. State, 113 S.W.3d 819, 838 (Tex. App.—Austin 2003, pet. ref’d); Empty v. State, 972 S.W.2d 194, 196 (Tex. App.—Dallas 1998, pet. ref’d).           Moreover, we note that the examining doctor testified that H.R. told her in detail about the sexual abuse by appellant. The doctor also testified that “a normal exam does not rule out or confirm the occurrence of sexual abuse . . . .”

          In addition, appellant points to evidence which he contends undermines H.R.’s credibility. He asserts that H.R. “had a motive to lie to cover up her own misdeeds of skipping school with a boy and getting a hickey.” Appellant points out that the evidence shows Geomara did not initially believe H.R., but changed her mind days later, despite the fact that H.R. never told Geomara the details of the sexual abuse.

          Appellant also relies on his own trial testimony. Appellant testified that he did not sexually assault H.R. nor did he ever touch her inappropriately. Appellant also testified that he and H.R. slept in different beds in different rooms, which he now contends “showed that [H.R.] was untruthful about [his] sexual abuse of her.”

          The record shows that the defense had ample opportunity, through cross-examination, to expose any inconsistencies in H.R.’s testimony and to explore its theory that H.R was lying to cover up “her own misdeeds.” It was the jury’s role as fact finder to resolve any discrepancies or inconsistencies in the evidence, to determine the credibility and weight to be given the evidence, and to draw reasonable inferences from the evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979). Concomitantly, the jury was free to believe or disbelieve all or part of any witness’s testimony, including that of H.R. or of appellant. See Jones v. State, 984 S.W.2d 254, 258 (Tex. Crim. App. 1998).

          In this case, the jury chose to believe H.R. and to disbelieve appellant. The jury found H.R. credible, even after considering appellant’s defensive theory and appellant’s testimony. We must give due deference to the jury’s credibility finding. See Johnson v. State, 23 S.W.3d 1, 9 (Tex. Crim. App. 2000).

          We recognize that one difference between the legal and factual sufficiency standards is that the former requires the reviewing court to defer to the jury’s credibility and weight determinations while the latter permits the reviewing court to substitute its judgment for the jury’s on these questions, “albeit to a very limited degree.” Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006) (citing Watson, 204 S.W.3d at 415, 417). The Court of Criminal Appeals has reiterated that “our factual-sufficiency jurisprudence still requires [us] to afford ‘due deference’ to the jury’s determination. Id. (Tex. Crim. App. 2006) (citing Johnson, 23 S.W.3d at 9). Based on the record before us and the contentions asserted by appellant challenging the factual sufficiency of the evidence, the jury in this case was in the best position to evaluate H.R.’s credibility, and we give proper deference to that determination. See id.

          After reviewing all of the evidence in a neutral light, we cannot conclude that the evidence is so weak that the verdict is clearly wrong and manifestly unjust or that the verdict is against the great weight and preponderance of the evidence. See Johnson, 23 S.W.3d at 11. We hold that the evidence is factually sufficient to support appellant’s conviction.

          We overrule appellant’s sole issue.

Conclusion

          We affirm the judgment of the trial court.

                                                             Laura Carter Higley

                                                             Justice

Panel consists of Justices Nuchia, Hanks, and Higley.

Do not publish. See Tex. R. App. P. 47.2(b).