Martinez, Cruz Anthony v. State

• Court: Court of Appeals of Texas
• Decided: May 25, 2004
• Docket: 14-03-00597-CR
• Status: Published

Opinion

Affirmed and Memorandum Opinion filed May 25, 2004

Affirmed and Memorandum Opinion filed May 25, 2004.

In The

Fourteenth Court of Appeals

____________

NO. 14-03-00596-CR

NO. 14-03-00597-CR

CRUZ ANTHONY MARTINEZ, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 185th District Court

Harris County, Texas

Trial Court Cause Nos. 914,926 & 914,927

M E M O R A N D U M   O P I N I O N

The jury found appellant guilty of sexual assault and sexual assault of a child.  The jury assessed punishment for the first offense at ten years= confinement in the Texas Department of Criminal Justice, Institutional Division and a fine of $10,000, but recommended community supervision and probation of the fine; the jury assessed punishment for the second offense at three years= confinement and a fine of $10,000.  In three points of error, appellant contends the evidence was legally insufficient to sustain his conviction for the first offense, and that the evidence was factually insufficient to sustain his convictions for either offense.  We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In January of 1995, appellant told his fourteen-year-old stepdaughter, C.B., that while her sisters were visiting their grandmother, she could sleep in the same bedroom as her mother and appellant.  C.B. accepted the offer and laid down on appellant=s bed.  When she asked where her mother was, appellant said that she was taking a shower.  Appellant laid down on the bed next to C.B. and began kissing her.  She resisted, but appellant held her arms and forced her to have sex with him.  Appellant made C.B. spend the night in the bed with him, and C.B.=s mother slept on a couch.

For the next several months, C.B. would sleep in the bed with appellant and her mother would sleep on the couch.  Appellant would force C.B. to have sex with him every night. 

After several months, C.B.=s mother began sleeping in the bed again, and C.B. slept on the floor in appellant=s room.  Appellant forced C.B. to have sex with him when her mother was not home, two or three times a week.

After about two years, appellant began forcing C.B. to engage in oral and anal sex as well.  The abuse continued for approximately five more years.

ANALYSIS

I.        Legal Sufficiency.

In his first point of error, appellant contends the evidence was legally insufficient because it did not establish that penetration of C.B.=s anus occurred.  Although the applicable statute makes either contact or penetration of the anus an offense, see Tex. Penal Code ' 22.011(a)(1), the indictment only charged appellant with penetration.  Appellant contends that although there is some evidence of contact, there is no evidence of penetration.

In reviewing legal sufficiency, we view the evidence in the light most favorable to the verdict.  Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000); Jackson v. Virginia, 443 U.S. 307, 319 (1979).  The issue on appeal is not whether we, as a court, believe the State=s evidence or believe that appellant=s evidence outweighs the State=s evidence.  Wicker v. State, 667 S.W.2d 137, 143 (Tex. Crim. App. 1984).  The verdict may not be overturned unless it is irrational or unsupported by proof beyond a reasonable doubt.  Matson v. State, 819 S.W.2d 839, 846 (Tex. Crim. App. 1991); see also Swearingen v. State, 101 S.W.3d 89, 94 (Tex. Crim. App. 2003).

The conviction is supported by C.B.=s testimony that appellant forced her to engage in anal sex.  When asked to describe what she meant by Aanal sex,@ C.B. explained, AIt was in my butt hisChis penis in my butt, I guess I would put it.@  C.B. further testified that the Aanal sex@ was painful and caused her to bleed.

Appellant contends this evidence is insufficient because the terms Aanus@ and Abutt@ are not synonymous and that a penis could be placed between the buttocks without penetrating the anus.  This situation is possible under the strict definitions of Aanus@^[1] and Abuttocks,@^[2] but the jury was not constrained to the strict definitions.  See  Vernon v. State, 841 S.W.2d 407, 409 (Tex. Crim. App. 1992) (AWords not specially defined by the Legislature are to be understood as ordinary usage allows, and jurors may thus freely read statutory language to have any meaning which is acceptable in common parlance.@).  The jury could have rationally concluded that Ain my butt@ indicated penetration of the anus.

Appellant=s contention also ignores C.B.=s initial testimony that she was forced to engage in Aanal sex.@  The word Aanal,@ by its definition,^[3] indicates that the act involved the anus, not merely the buttocks.  C.B. also testified that the anal sex resulted in pain and bleeding, from which the jury could have rationally concluded that at least minimal penetration of the anus occurred.  The jury=s determination that appellant penetrated C.B.=s anus was neither irrational nor unsupported by proof beyond a reasonable doubt.  We overrule appellant=s first point of error.

II.       Factual Sufficiency.

In his second and third points of error, appellant contends the evidence was factually insufficient because C.B.=s testimony lacked credibility for several reasons: the lack of corroborating evidence, motivation for C.B. to lie, and contradicting testimony by other witnesses.^[4]

In reviewing factual sufficiency, we view all of the evidence in a neutral light, and we will reverse a conviction only if the evidence supporting guilt is so obviously weak as to render the conviction clearly wrong and manifestly unjust, or if that evidence, although adequate when taken alone, is so greatly outweighed by the overwhelming weight of contrary evidence as to render the conviction clearly wrong and manifestly unjust.  Vasquez v. State, 67 S.W.3d 229, 236 (Tex. Crim. App. 2002).

In reviewing credibility under the factual sufficiency standard, we consider only those few matters that can be fully determined from a cold appellate record.  Johnson v. State, 23 S.W.3d 1, 8 (Tex. Crim. App. 2000).  ASuch an approach occasionally permits some credibility assessment but usually requires deference to the jury=s conclusion based on matters beyond the scope of the appellate court=s legitimate concern.@  Id.  Unless a different result is clearly appropriate, we must defer to the jury=s conclusion because the jurors were in attendance when the testimony was delivered.  Id.  The jurors thus had the Aopportunity to examine those tell‑tale signs of credibilityCsuch as the physical appearance, demeanor, and cadence of speech of the witnessCwhich are unavailable to an appellate court on the face of a cold record.@  Id. at 8 n.9 (quoting Commonwealth v. Williams, 720 A.2d 679, 684 (Pa. 1998)).

A.      Lack of Corroborating Evidence.

First, appellant argues that C.B.=s testimony lacked credibility because it was unsupported by corroborating evidence.  In particular, appellant complains that no medical examination was performed and that C.B.=s therapist was not called to testify.  However, there is no indication that this additional testimony would have been probative.  Because of the delayed outcry, a medical examination may have been inconclusive,^[5] and C.B. testified that she did not tell her therapist about the assaults.  Failure to present this additional evidence does not indicate that C.B.=s testimony lacked credibility.

Further, a conviction for sexual assault is supportable on the uncorroborated testimony of the victim if at the time of the alleged offense the victim was seventeen years of age or younger.  See Tex. Code Crim. Proc. art. 38.07.  Therefore, the State was not required to produce any evidence to corroborate C.B.=s testimony.^[6]

B.      Motivation to Lie.

Second, appellant argues that C.B.=s testimony lacked credibility because she was motivated to lie.  C.B. was supposedly initially motivated to lie by appellant=s disapproval of her relationship with an older, married man and the necessity of moving out of appellant=s house if she wanted to continue the relationship; C.B. was supposedly motivated to continue lying once the police became involved because of the momentum of the prosecution and the fear of a criminal charge against herself if she retracted her statements.

We must show due deference to a jury=s determination concerning credibility unless the record clearly indicates the determination was manifestly unjust.  Johnson, 23 S.W.3d at 9.  Because the jury convicted appellant, the jury must have determined C.B.=s testimony was credible despite evidence of possible motives for her to lie.  Based on the cold record, we do not find this determination was manifestly unjust.

C.      Contradicting Testimony.

Third, appellant argues that C.B.=s testimony lacked credibility because it was contradicted by the testimony of other witnesses, including appellant.  However, other witnesses testified in support of C.B.

We must show due deference to a jury=s determination concerning the weight and credibility of conflicting evidence unless the record clearly indicates the determination was manifestly unjust.  Johnson, 23 S.W.3d at 9.  AA decision is not manifestly unjust merely because the jury resolved conflicting views of the evidence in favor of the State.@  Cain v. State, 958 S.W.2d 404, 410 (Tex. Crim. App. 1997).  Based on the cold record, we do not find the jury=s decision to believe C.B.=s testimony was manifestly unjust.  We overrule appellant=s second and third points of error.

We affirm the judgment of the trial court.

/s/      Wanda McKee Fowler

Justice

Judgment rendered and Memorandum Opinion filed May 25, 2004.

Panel consists of Justices Fowler, Edelman, and Seymore.

Do Not Publish C Tex. R. App. P. 47.2(b).

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^[1]  AAnus@ is defined as Athe posterior opening of the alimentary canal.@  Merriam-Webster=s Collegiate Dictionary 52 (10th ed. 2002).

^[2]  AButtock@ is defined as Athe back of a hip that forms one of the fleshy parts on which a person sits.@  Merriam-Webster=s Collegiate Dictionary 156 (10th ed. 2002).

^[3]  AAnal@ is defined as Aof, relating to, or situated near the anus.@  Merriam-Webster=s Collegiate Dictionary 52 (10th ed. 2002).

^[4]  Appellant also suggests that we should consider whether a second trial would lead to a more reliable result, because of alleged errors by both the trial court and trial counsel.  He has presented no authority for this position, however, and such a consideration is not appropriate for a factual sufficiency review.  See Perez v. State, 113 S.W.3d 819, 837 (Tex. App.CAustin 2003, pet. ref=d).  Our task in a factual sufficiency review is not to speculate on what evidence trial counsel could have presented or what rulings the trial court should have made; our task is to examine the same evidence weighed by the jury.  See Sells v. State, 121 S.W.3d 748, 754 (Tex. Crim. App. 2003).

^[5]  As a detective with the child abuse division of the Harris County Sheriff=s Department testified,

Q.         In your experience as a[n] investigator of child abuse cases, is it common to find physical evidence?

A.         A lot of times in child abuse, you really don=t get physical evidence.

Q.         And if you know, why is it that you don=t get physical evidence?

A.         Usually the outcry is delayed.  The evidence is gone.  You know, the evidence has been contaminated or moved.  Many reasons why there=s not physical evidence in child abuse.  Mainly the delayed outcry.

^[6]  Based on the testimony given at trial, C.B. was thirteen at the time of the first offense and sixteen at the time of the second offense.