Soto v. State

736 S.W.2d 819
CourtCourt of Appeals of Texas
DecidedJuly 29, 1987
DocketNo. 04-86-00190-CR
StatusPublished

This text of 736 S.W.2d 819 (Soto v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Soto v. State, 736 S.W.2d 819 (Tex. Ct. App. 1987).

Opinion

OPINION

CANTU, Justice.

Appellant was convicted by a jury of aggravated sexual assault of a child. TEX. PENAL CODE ANN. §§ 22.011, 22.021 (Vernon Supp.1987). Punishment was assessed by the same jury at confinement for 45 years. In addition a fine of $2,500.00 was imposed.

Appeal is predicated upon three points of error including a challenge to the sufficiency of the evidence.

We review the facts in the light most favorable to the jury verdict as we are required to do. Carlsen v. State, 654 S.W.2d 444 (Tex.Crim.App.1983) (en banc).

J_Soto, former wife of appellant, testified that she and appellant separated from each other in contemplation of divorce on February 9, 1985. At that time J-[820]*820took possession of her minor children, including C_, the three year old victim, the natural child of both parties.

Thereafter, on February 15, 1985, appellant, under a false pretext, gained possession of his three year old daughter C_ and removed her to his residence in Poteet where appellant lived with his two teenaged daughters from a previous marriage and other family members. C_contin-ued to reside with appellant and his family until March 7, 1985, when J_ forcibly recovered C_ from appellant’s teenaged daughter at a time when appellant was not home.

J-then took C_to her cousin’s mobile home in Jourdanton where the child spent the morning playing with her sister and' little cousins. Later that afternoon J_decided to bathe C_and her sister. C_refused to remove her clothes crying out “no, no, coco, coco.”1 When J_tried to forcibly remove the child’s clothing, the child resisted by repeating the term “coco.” The attempt to bathe the child was terminated prematurely because of the child’s resistance.

J_then attempted to place a diaper on the child but the child interjected “no, momma, coco, coco” while at the same time putting her hands over her private area. When J-asked the child who had inflicted “coco,” the child replied, “him, him, him” while pointing into the air at an imaginary figure.

J- then asked the child who “him” was and the child replied “tata,” an expression the child used when referring to her father, the appellant.

When C- refused to permit her mother to place a diaper on her, J_ spread the child’s legs apart and noticed what she believed to be sperm discharging from the child's vagina. According to J-, the discharge continued for two days.

Dr. Paul Jordan Dickstein examined the child on June 14, 1985. According to Dr. Dickstein the child’s hymen had been perforated and the vagina penetrated by an undetermined object.

It was Dr. Dickstein’s opinion that such a tear would require a one inch penetration of the vagina. In his opinion a partial penetration by an average male penis could have caused the child’s hymen and vagina to appear as it did. Moreover, a penetration occurring some three months prior to the examination could have been more severe since the healing process would mask the actual penetration depth.

It was shown through the testimony of appellant’s teenaged daughters and others that no other male had exclusive access to the child during the period of time immediately preceding the child’s recovery by her mother.

Although the child was never able to verbalize any sort of communication to social workers or investigators from the Department of Human Resources it was shown through the testimony of Laura Grimsinger, the director of the Guadalupe County Women’s Shelter, that during the period from June 14 through 28 of 1985 J-and her two minor daughters, including C_stayed at the shelter.

Grimsinger recalled seeing C_ engaging in sexual activity such as fondling and attempting oral sex upon her younger sister.

Appellant, testifying in his own behalf, denied the accusations and attempted to show that the accusations were fabrications by his ex-wife during a time when a child custody struggle incident to a divorce was ensuing. Other witnesses testified that appellant was a good and loving father who raised his two teenaged daughters from a previous marriage without incident. Emphasis was also placed upon the young child’s inability to verbalize during video taping sessions with Department of Human Resources investigators. Much stress was placed upon J_’s failure to report the suspected sexual abuse until considerable time had elapsed.

Appellant contends that the evidence is, at best, circumstantial but in any [821]*821event practically nonexistent. Whether the case is one involving direct evidence or consisting entirely of circumstantial evidence, the review to be made by this court focuses upon the evidence viewed in the light most favorable to the jury verdict. Houston v. State, 663 S.W.2d 455 (Tex. Crim.App.1984) (en banc). Moreover, the test for review in a sufficiency challenge is whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Wilson v. State, 654 S.W.2d 465 (Tex.Crim.App. 1983) (en banc).

Where the case is one relying purely on circumstantial evidence the test requires that the evidence exclude every other reasonable hypothesis except the guilt of the accused. And if the evidence supports an inference other than guilt, a finding of guilt is not a rational finding. Wilson v. State, supra.

Appellant’s assessment of the evidence supporting the jury’s finding may be summarized as consisting entirely of hearsay testimony of the child’s mother and brief medical testimony of the examining doctor. The argument advanced is that the medical testimony is essentially nonprobative because the medical examination was not conducted on March 7, 1985, at a time when it would have corroborated the mother’s contention that she saw sperm discharging from the child’s vagina.

We find it appropriate to quote the following excerpt from appellant’s brief:

The record reflects that Doctor Dick-stein indicated that the injury was relatively minor; that is, that ‘someone or something inflicted a little bulge on the rim of the hymen.’ He testified that the injury did not necessarily evidence sexual abuse and he could give no indication as to when the injury occurred. He further testified that in his opinion, a full penetration would have caused much more injury. Therefore, appellant contends that we have a minor injury and a star witness saying that she saw what she thinks was sperm flowing from the vagina area for two days, (emphasis appellant’s)

The indictment in the instant cause charged that appellant caused the penetration of the child’s vagina by inserting his penis into the vagina of the child. In an alternate paragraph the indictment charged that penetration was accomplished by a means to the Grand Jury unknown.

Because proof of either means of penetration will support a conviction it is immaterial that the mother’s testimony that she saw sperm discharging from the child’s vagina be corroborated.

It is sufficient that probative evidence establish beyond a reasonable doubt that penetration was accomplished through some means attributable to appellant with the requisite criminal intent.

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Related

Morris v. State
411 S.W.2d 730 (Court of Criminal Appeals of Texas, 1967)
Chambers v. State
711 S.W.2d 240 (Court of Criminal Appeals of Texas, 1986)
Wilson v. State
654 S.W.2d 465 (Court of Criminal Appeals of Texas, 1983)
Carlsen v. State
654 S.W.2d 444 (Court of Criminal Appeals of Texas, 1983)
Girard v. State
631 S.W.2d 162 (Court of Criminal Appeals of Texas, 1982)
Rhea v. State
705 S.W.2d 165 (Court of Appeals of Texas, 1985)
Houston v. State
663 S.W.2d 455 (Court of Criminal Appeals of Texas, 1984)
Harrington v. State
547 S.W.2d 616 (Court of Criminal Appeals of Texas, 1977)

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Bluebook (online)
736 S.W.2d 819, Counsel Stack Legal Research, https://law.counselstack.com/opinion/soto-v-state-texapp-1987.