Balderas v. State
| Docket Number | 06-22-00024-CR |
| Decision Date | 25 May 2023 |
| Parties | HUMBERTO ORTIZ BALDERAS, Appellant v. THE STATE OF TEXAS, Appellee |
| Court | Texas Court of Appeals |
Do Not Publish
Date Submitted: January 18, 2023
On Appeal from the 6th District Court Lamar County, Texas Trial Court No. 28545
Before Stevens, C.J., van Cleef and Rambin, JJ.
After a jury found Humberto Ortiz Balderas guilty of continuous sexual abuse of a young child (Count I), indecency with a young child by exposure (Count III), and two counts of sexual assault of a young child (Counts IV and V),[1] the trial court sentenced him to confinement in prison for thirty years, five years, ten years, and ten years, respectively. The trial court ordered Balderas's sentences to run consecutively. Balderas appeals, maintaining that (1) the evidence was insufficient to support his conviction for continuous sexual abuse of a young child, (2) the trial court's jury instructions contained error causing him egregious harm, (3) the trial court erred by bolstering the State's case when it read back testimony to the jury during its deliberations and (4) the trial court's judgments of conviction contained factual errors.
Because we find that there was insufficient evidence to support Balderas's conviction for continuous sexual abuse of a young child, we reverse the trial court's judgment of conviction as to Count I.[2] Further, we sustain Balderas's third point of error and reverse the judgments of conviction as to Counts III, IV, and V. Finally, with the exception of Count I, we remand to the trial court for a new trial consistent with this opinion.[3]
At trial, twenty-two-year-old P.S. testified that her mother, G.S., met Balderas online when G.S. was living in Mexico and Balderas was living in the United States. When P.S. was around eight years old,[4] her mother decided to move the family to Paris, Texas, where they lived with Balderas in a green house on East Washington Street (the green house). According to P.S., they lived in the green house from the time she was in third grade, around 2008, until she became a freshman in high school, around 2014. After that, they moved to a house on Polk Street in Paris, Texas, which P.S. described as a red brick home (the red house). P.S. explained that they lived in Paris the entire time, except for the summer of 2011 or 2012 when G.S. and Balderas separated and G.S. took her family to live in Houston.
P.S. explained that, during the time they lived in the green house, Balderas was "basically [her] father figure." According to P.S., Balderas support[ed her] all the time," and for the most part, they did not fight or have disagreements while they lived in the green house. Yet, after G.S. and P.S. returned to Paris from Houston in 2011 or 2012, and while they were still living in the green house, Balderas began touching P.S. P.S. testified that, one day, while she was on the telephone crying because she wanted to return to Houston, Balderas "whisper[ed] to [her] so softly . . . [a]nd he then proceeded to open [her] legs and he used his finger and . . . he started touching [her] and [she] didn't know what was going on so he said it's okay, todos tambien (phonetic), like he was trying to calm [her] down." In an effort to be more specific, P.S. said that Balderas touched her vagina with his finger "[w]here [her] clitoris [was] at."[5]
P.S. also explained that there had been a room in the green house that the family referred to as a basement, and it was the room in which they did laundry.[6] P.S. said that, on her way to do laundry, Balderas "would stop [her] at the top of the steps[,] and he would feel on [her] and touch [her]." P.S. stated that Balderas would stretch her pants and then put his finger inside and outside of her vagina. P.S. said that Balderas had sexually abused her at other times while they lived in the green house but that her memory about those instances was "vague."
When P.S. was almost fifteen years old, the family moved to the red house. According to P.S., the abuse at the red house had become a "constant thing, every Sunday from 9:00 to 5:00, because [her] mom worked from 9:00 to 5:00." P.S. said that the ongoing abuse began her junior year of high school and that it did not stop until she left for college. While living in the red house, Balderas would "feel upon [her]," even when the family was there. P.S. said that, if she was menstruating, Balderas would masturbate behind her and that she could "fe[el] his penis by [her] butt." Balderas would ground P.S. because she did not clean herself "down there good enough[.]" P.S. said that she purposefully stopped cleaning herself to discourage Balderas's abuse.
When P.S. was fifteen, Balderas taught her how to drive a car. According to P.S., Balderas would take her driving on the "back" roads. On one occasion, Balderas told P.S. that she had "to be able to focus on the road all the time, no matter what happen[ed]." Balderas then masturbated while P.S. was driving. After the driving lesson was over and the pair had gone back to the red house, Balderas told P.S. "to lay down on the pool table and open [her] legs, and that was the first time he gave [her] oral and put his tongue in [her] vagina."
In 2018, during her first semester of college, Balderas called P.S. while she was participating in a Bible study. P.S. said Balderas was "flipping out about something." After she discontinued the telephone call, Balderas repeatedly texted P.S., making her cry. When P.S. left the Bible study, she contacted her roommate, who was the "only person that [she] could trust[,]" and P.S. told her about the abuse that she had suffered. Even at that point, P.S. did not file a police report because it was "hard to separate [the] abuser from a dad figure." P.S. eventually went to see a college counselor because she needed to talk with someone about the abuse so that she could "let it out." Despite her counselor's encouragement, P.S. still did not report the abuse to law enforcement.
Around the middle of July 2019, P.S. informed her mother that she had been abused by Balderas "ever since [she could] remember." P.S. said that her mother was in shock and began crying. According to P.S., her mother said, "[E]verything makes sense now." That same day, P.S. made her first police report regarding Balderas's abuse.
After making the police report, P.S. spoke with an investigator who had her contact Balderas by telephone; the officer recorded their conversation. During the call, P.S. told Balderas that she had told her mother about Balderas sexually abusing her. According to P.S., she asked Balderas if he was aware of what he had done to her, and he responded, "[Y]es, yes (inaudible)." P.S. said that Balderas never denied that he abused her. P.S. explained that, when she asked Balderas why he treated her that way, Balderas told her that her "version of a dad [was] wrong[.]" She continued, "He said the way he loved me was his way."
Eventually, P.S. sought counseling. On May 2, 2019, when P.S. was nineteen years old, she reported to her counselor that Balderas began sexually abusing her when she was around twelve years old and that he stopped abusing her when she was around eighteen years old. P.S. had been diagnosed with post-traumatic stress disorder, clinical depression, anxiety, and attention-deficit/hyperactivity disorder, and as a result, she had been taking medication for two years.
Balderas flatly denied the State's allegations that he sexually abused P.S. According to Balderas, P.S. made the accusations against him because she was angry with him for providing her with a bicycle, rather than a vehicle, for transportation while she was away at college.
In his first point of error, Balderas maintains that the State failed to present legally sufficient evidence to prove beyond a reasonable doubt that he was guilty of continuous sexual abuse of a young child. We agree.
"In evaluating legal sufficiency, we review all the evidence in the light most favorable to the trial court's judgment to determine whether any rational jury could have found the essential elements of the offense beyond a reasonable doubt." Williamson v. State, 589 S.W.3d 292, 297 (Tex. App-Texarkana 2019, pet ref'd) (citing Brooks v State, 323 S.W.3d 893, 912 (Tex Crim App 2010) (plurality op); Jackson v Virginia, 443 U.S. 307, 319 (1979); Hartsfield v State, 305 S.W.3d 859, 863 (Tex App-Texarkana 2010, pet ref'd)) "Our rigorous [legal sufficiency] review focuses on the quality of the evidence presented" Id. (citing Brooks, 323 S.W.3d at 917-18 (Cochran, J, concurring)). "We examine legal sufficiency under the direction of the Brooks opinion, while giving deference to the responsibility of the jury 'to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.'" Id. (quoting Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson, 443 U.S. at 318-19; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007))).
"Legal sufficiency of the evidence is measured by the elements of the offense as defined by a hypothetically correct jury charge." Id. at 298 (quoting Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)). "The 'hypothetically correct' jury charge is 'one that accurately 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. (quoting Malik, 953 S.W.2d at 240).
"In our...
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