Nicandro Marcos Ortiz v. State

• Court: Court of Appeals of Texas
• Decided: June 15, 2006
• Docket: 13-05-00696-CR
• Status: Published

Opinion

                                           NUMBER 13-05-696-CR

                                 COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI - EDINBURG 

NICANDRO MARCOS ORTIZ,                                                         Appellant,

v.

THE STATE OF TEXAS,                                                                Appellee.

          On appeal from the 214th District Court of Nueces County, Texas.

                                MEMORANDUM OPINION

                     Before Justices Hinojosa, Rodriguez, and Garza

                             Memorandum Opinion by Justice Garza

Appellant, Nicandro Marcos Ortiz, was convicted of second-degree indecency with a child and first-degree aggravated sexual assault.  See Tex. Pen. Code Ann. ' 21.11(a)(1), (2) (Vernon 2003), ' 22.021(a)(1)(B)(i) (Vernon Supp. 2005).  The jury assessed punishment at seven years= imprisonment for the indecency with a child count and fifteen years= imprisonment for the aggravated sexual assault count.  For the reasons that follow, we affirm the judgment of the trial court.

The victim, S.E., who was 12 years of age at the time of the alleged incidents, is the step-daughter of appellant.  The victim testified that beginning December 2004 and continuing throughout 2005, appellant, on numerous occasions, touched her breasts and vagina with his hands and penetrated her vaginally with his penis. 

By one issue appellant asserts that the evidence is factually insufficient to sustain his conviction.

I. Standard of Review

In a factual sufficiency review, the evidence is viewed in a neutral light, favoring neither party.  See Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996).  In this neutral light, we determine whether Athe proof of guilt is so obviously weak as to undermine confidence in the jury=s determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof.@  See Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000).  A clearly wrong and unjust verdict occurs where the jury=s finding Ashocks the conscience@ or Aclearly demonstrates bias.@  Santellan v. State, 939 S.W.2d 155, 164-65 (Tex. Crim. App 1997).  We are authorized to disagree with the fact finder's verdict even if probative evidence exists that supports the verdict.  Id. at 164; see also Johnson, 23 S.W.3d at 7.         In a criminal conviction, sufficiency of the evidence is determined by the elements of the crime as defined by the hypothetically correct jury charge.  Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997).  The correct charge would be one that Aaccurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried.@  Id.

To support a conviction for indecency with a child, the State had to prove that appellant performed one of the following acts with a child younger than 17 years of age who was not his spouse: (1) engaged in sexual contact with the child or caused the child to engage in sexual contact; or (2) with intent to arouse or gratify the sexual desire of any person: (A) exposed his anus or any part of his genitals, knowing the child is present; or (B) caused the child to expose the child=s anus or any part of the child=s genitals.  See Tex. Pen. Code Ann. ' 21.11(a)(1), (2).

To support a conviction for aggravated sexual assault of a child, the State had to prove that appellant (1) intentionally or knowingly; (2) caused the penetration of the anus or sexual organ of a child by any means; (3) the child is younger than 14 years of age; and (4) is not the offender=s spouse.  See id. ' 22.021(a)(1)(B)(i).

II. Analysis

Appellant contends there is factually insufficient evidence to support his convictions because the only testimony provided was the Auncorroborated testimony of a child who has a habit of telling lies, and who is repeatedly impeached.@ 

We first note that because the alleged sexual offenses occurred when the victim was a person seventeen years of age or younger, corroboration of her testimony was not necessary to support appellant=s convictions under chapter 21 or section 22.021 of the penal code.  See Tex. Code Crim. Proc. Ann. art. 38.07(a) (Vernon 2005).  Furthermore, the testimony of a sexual assault victim alone is sufficient evidence to support a conviction.  Villanueva v. State, 703 S.W.2d 244, 245 (Tex. App.BCorpus Christi 1985, no pet.); see also Garcia v. State, 563 S.W.2d 925, 928 (Tex. Crim. App. 1978).

In addition, while evidence presented at trial may offer conflicting accounts, the introduction of conflicting evidence is not enough to render the evidence insufficient as a whole.  State v. Turro, 867 S.W.2d 43, 47 (Tex. Crim. App. 1993).  It is within the province of the jury, as fact-finder, to judge the weight and credibility to be accorded witness testimony, and we must defer to the jury=s determination concerning what weight to give contradictory testimonial evidence.  See Cain v. State, 958 S.W.2d 404, 408-09 (Tex. Crim. App. 1997); Bowden v. State, 628 S.W.2d 782, 784 (Tex. Crim. App. 1982).  We assume the fact finder resolved any conflicts in the evidence in favor of the verdict and must defer to that resolution.  Turro, 867 S.W.2d at 47.    

The victim testified that appellant touched her breasts and vagina with his hands on several occasions and that appellant Astuck it [appellant=s penis] into my private part@ and that fluid came out.  The jury also heard and considered inconsistencies in the victim=s testimony as well as evidence tending to negate appellant=s guilt and determined that appellant was guilty of indecency with a child and aggravated sexual assault of a child.  Although, as appellant notes, the jury in this case was presented with testimony that could have called the victim=s credibility into question, this conflicting evidence is not enough to render the evidence insufficient as a whole.  See id.  Again, it is within the sole province of the jury to reconcile conflicts, contradictions, and inconsistencies in the evidence.  Bowden, 628 S.W.2d at 784.  After reviewing all of the evidence in a neutral light, and deferring to the jury's role as fact-finder to judge the weight and credibility to be accorded to witness testimony, we conclude that the evidence in favor of the verdict is not so weak, nor the conflicting evidence so strong, as to make the verdict against the great weight and preponderance of the evidence.  Therefore, we conclude the evidence is factually sufficient to support appellant=s conviction for the offenses of indecency with a child and aggravated sexual assault of a child.

We affirm the judgment of the trial court.

_______________________

DORI CONTRERAS GARZA,

Justice

Do not publish.                                            

Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and

filed this the 15th day of June, 2006.