Bargas v. State

• Decision Date: 13 May 2008
• Docket Number: Nos. 14-06-00795-CR, 14-06-00797-CR.,s. 14-06-00795-CR, 14-06-00797-CR.
• Citation: 252 S.W.3d 876
• Parties: George Michael BARGAS, Jr., Appellant v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

252 S.W.3d 876

George Michael BARGAS, Jr., Appellant v. The STATE of Texas, Appellee.

Nos. 14-06-00795-CR, 14-06-00797-CR.

Court of Appeals of Texas, Houston (14th Dist.).

May 13, 2008.

Leah M. Borg, Houston, for appellants.

Shirley Cornelius, Houston, for State.

Panel consists of Justices FOWLER, FROST, and SEYMORE.

OPINION

KEM THOMPSON FROST, Justice.

Appellant George Michael Bargas, Jr. challenges his convictions for two consolidated counts of aggravated sexual assault of a child, asserting in ten issues legal and factual insufficiency and a host of other complaints. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

The complainant, Tina,¹ is appellant's daughter, who lived with appellant when she was between the ages of five and nine years old. The father and daughter lived in several different homes, residing first in a home in the Highlands and then moving to Baytown when Tina was seven or eight years old.

Tina last saw appellant in the fall of 2003, before going to live with her maternal grandmother, Gloria Wilson. In May 2005, after watching a video at school on sexual abuse, Tina told a classmate that "something had happened to her." School officials met with Wilson and explained that Tina needed counseling. Though school officials did not specifically mention sexual abuse, Wilson suspected that Tina's bed-wetting, cowering, and fear of the dark resulted from Tina's having been sexually abused. To learn more from Tina, Wilson confronted Tina by telling Tina that she knew Tina had been sexually abused; although, in reality, Wilson knew nothing about any sexual abuse. When Wilson asked if anyone had touched Tina's "private parts," Tina responded that appellant had touched her in those places. Wilson tried to find out more information, but Tina did not want to talk about it. Wilson did not learn of the details of Tina's sexual abuse until later when she spoke with Tina's therapist, Priscilla Kleinpeter.

After Wilson reported the sexual abuse, Child Protective Services referred then ten-year-old Tina to the Children's Advocacy Center, where she was interviewed on videotape by forensic interviewer Shelly Bohannon. In that interview, Tina described the incidents of appellant's sexual abuse in specific detail.

Sexual assault nurse examiner Danielle Livermore examined Tina in the fall of 2005. Though she could not determine when the abuse took place and found no evidence of physical trauma, Livermore explained that the absence of medical evidence in examinations of sexually abused child victims is common.

Appellant was charged in two indictments with aggravated sexual assault, and he pleaded "not guilty" to both indictments. The cases were consolidated for trial. In her testimony at trial, Tina identified incidents of appellant's sexual abuse by indicating which home she lived in with appellant at the time of the incidents. She described in detail how appellant first touched her "private areas" when she was five years old in the Highlands home. According to Tina, he touched her "front private parts" with his hands between ten and twenty times at that home. Tina testified that more than twenty times in the Highlands home, appellant put his "private spot" on her "private spot" as he got on top of her, "shaking up and down" with his "private part" and making "grunting" noises.

When Tina was seven or eight years old, she and appellant moved to Baytown. One time, while living in Baytown, appellant came home from drinking and touched Tina under her clothing in her "front private area"² with his hands, which hurt her. In another Baytown incident, appellant came into Tina's room and removed her clothing and his clothing. He "moved his body up and down" behind her, touching his sexual organ to her behind. Describing an incident at another person's Baytown home, Tina testified that appellant touched her "private parts" with his hand and scratched her there with his jagged fingernail. On that occasion, appellant then put his "private part" in Tina's mouth and moved her head up and down; she vomited afterwards.

Facts are disputed as to whether Tina saw appellant during the summer of 2003, the time period in which the State (in the indictment) alleged the offenses occurred. Appellant testified that he had no contact with Tina at that time because he had sent Tina to live with a relative, Josephine Avalos, while appellant worked out of town over the summer. Appellant's long-time friend and co-worker testified that appellant had no contact with Tina during that summer. Tina's two cousins and paternal aunt testified that Tina lived with them that summer, noting that Tina made an outcry statement about sexual abuse by an "Uncle Alex," who lived with Avalos; however, the cousins and aunt indicated that Tina had no contact with appellant. Tina recalled living with the cousins at some point and testified that her paternal aunt took her to and from appellant's home. Tina indicated that she later lived with maternal aunt Joann Hernandez for part of the summer. Tina testified that she could have lived with Avalos at some point in the springtime, but Tina did not recall a person named Alex or alleging he had abused her. Hernandez testified that Tina came to live with her in April 2003, and later that fall she typically dropped Tina off at appellant's home in Baytown before school and picked Tina up after school.

At trial, the State introduced outcry witness Bohannon, Tina's therapist Kleinpeter, and Baytown Police Department investigating officer Detective D.A. Harrison. Livermore testified as to the results of Tina's medical examination. Alice,³ the fourteen-year-old daughter of appellant's former live-in girlfriend, provided extraneous-offense testimony that appellant twice had touched her chest and rubbed her stomach when she lived with appellant in the Highlands home. Appellant presented testimony from Tina's two cousins and aunt, and appellant testified in his own defense.

A jury found appellant guilty of both counts of aggravated sexual assault of a child and assessed punishment at sixty years' confinement for each offense, with the sentences to run consecutively.

II. ISSUES AND ANALYSIS

A. Is the evidence legally and factually sufficient to support the convictions?

In two issues, appellant challenges the sufficiency of the evidence supporting his convictions.⁴ Appellant first contends the trial court erred in denying his motions for instructed verdicts because the State failed to produce evidence of every element of the offenses, specifically the element of digital penetration. Appellant contends that by improperly denying his motions, the burden of proof shifted from the State to appellant to prove his innocence, which is why he testified on his own behalf. Appellant also argues the evidence is factually insufficient because no medical evidence and no other witnesses support the allegations. Appellant complains that Tina's testimony is unreliable because she used unsophisticated terminology for genitalia and sexual acts, and she could not recall where she lived that summer, or anyone named Alex, or making outcry against Alex when appellant presented contrary evidence.

A challenge of the trial court's denial of a motion for instructed verdict is a challenge to the legal sufficiency of the evidence to support the conviction. See Williams v. State, 937 S.W.2d 479, 482 (Tex.Crim.App.1996). When evaluating a challenge to the legal sufficiency of the evidence, 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). 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). The jury, as the trier of fact, "is the sole judge of the credibility of the witnesses and of the strength of the evidence." Fuentes v. State, 991 S.W.2d 267, 271 (Tex.Crim.App.1999). The jury may choose to believe or disbelieve any portion of the witnesses' testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim.App. 1986). When faced with conflicting evidence, we presume the trier of fact resolved conflicts in favor of the prevailing party. Turro v. State, 867 S.W.2d 43, 47 (Tex.Crim.App.1993). Therefore, if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, we must affirm. McDuff v. State, 939 S.W.2d 607, 614 (Tex. Crim.App.1997).

In contrast, when evaluating a challenge to the factual sufficiency of the evidence, we view all the evidence in a neutral light and inquire whether we are able to say, with some objective basis in the record, that a conviction is "clearly wrong" or "manifestly unjust" because the great weight and preponderance of the evidence contradicts the jury's verdict. Watson v. State, 204 S.W.3d 404, 414-17 (Tex.Crim.App.2006). It is not enough that this court harbor a subjective level of reasonable doubt to overturn a conviction that is founded on legally sufficient evidence, and this court cannot declare that a conflict in the evidence justifies a new trial simply because it disagrees with the jury's resolution of that conflict. Id. at 417. If this court determines the evidence is factually insufficient, it must explain in exactly what way it perceives the conflicting evidence greatly to preponderate against conviction. Id. at 414-17. The reviewing court's evaluation should not intrude upon the fact finder's role as the sole judge of the weight and credibility given to any witness's testimony. See Fuentes, 991 S.W.2d at 271. In conducting a factual-sufficiency review, we discuss the evidence appellant claims is most important in allegedly undermining the jury's verdict. Sims v....