Bocanegra v. State

• Decision Date: 16 February 2017
• Docket Number: NO. 02–15–00198–CR,02–15–00198–CR
• Citation: 519 S.W.3d 190 (Mem)
• Parties: Calub BOCANEGRA, Appellant v. The STATE of Texas, State
• Court: Texas Court of Appeals

519 S.W.3d 190 (Mem)

Calub BOCANEGRA, Appellant

v.The STATE of Texas, State

NO. 02–15–00198–CR

Court of Appeals of Texas, Fort Worth.

DELIVERED: February 16, 2017

Rehearing and Reconsideration En Banc Overruled March 30, 2017

ATTORNEY FOR APPELLANT: CHRISTIAN SOUZA, DALLAS, TX.

ATTORNEY FOR STATE: SHAREN WILSON, DIST. ATTY., DEBRA WINDSOR, ASST. DIST. ATTY., CHIEF OF POST CONVICTION, EDWARD WILKINSON, MELINDA WESTMORELAND, ASST. DIST. ATTYS., FORT WORTH.

DISSENTING OPINION¹

SUE WALKER, JUSTICE

I. INTRODUCTION

A jury found Appellant Calub Bocanegra guilty of the offense of aggravated sexual assault of a child younger than fourteen years of age. See Tex. Penal Code Ann. § 22.021(a)(1)(B)(i), (a)(2)(B) (West Supp. 2016). Because I disagree with the Majority Opinion's conclusions that the evidence is insufficient to support Bocanegra's conviction and the jury's rejection of Bocanegra's medical-care defense, I am compelled to dissent.

II. FAILURE TO REVIEW ALL OF THE EVIDENCE SUPPORTING BOCANEGRA'S CONVICTION IN THE LIGHT MOST FAVORABLE TO THE JURY'S VERDICT

The Majority Opinion fails to review all of the evidence in the light most favorable to the verdict. See Jackson v. Virginia , 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). Instead of reviewing the evidence, the Majority Opinion crafts its own unique procedure; the Majority Opinion sets forth the facts recited by the State in its appellate brief in response to Bocanegra's fourth issue and then spends forty-six pages examining the words used by the State in its brief "to determine which of the State's assertions are supported by the record."² The Majority Opinion notes any word used in the State's brief that differs from the word used by the witness in the record and, using dictionary definitions and interposing possible innocent inferences from the facts, concludes that a reasonable juror could draw no inferences supporting Bocanegra's guilt from the evidence³ and that the only evidence supporting Bocanegra's conviction is Amy's outcry.⁴ In analyzing whether Amy's outcry is sufficient to support Bocanegra's conviction, the Majority Opinion explains that not "just any outcry will do"⁵ and holds this one insufficient because it "puts every parent, grandparent, sibling, daycare worker, or other caregiver of any kind at risk of being imprisoned for performing a basic and necessary function in the care of a child."⁶ Although purporting to apply a Jackson v. Virginia sufficiency standard of review, in reality, the Majority Opinion fails to consider all of the evidence in the light most favorable to the jury's verdict; instead, the Majority Opinion sets forth its own view of the evidence and then explains the Majority's stance on why it would be unreasonable for the jury to view the evidence differently.⁷

III. BOCANEGRA ADMITTED ALL OF THE ELEMENTS OF THE OFFENSE

The Majority Opinion fails to recognize that the medical-care defense is a defense of confession and avoidance; thus, by offering evidence supporting, by requesting, and by obtaining a medical-care defense instruction, Bocanegra admitted every element of the offense but claimed his admitted, otherwise-criminal conduct of penetrating the sexual organ of then four-year-old Amy by inserting his finger was justified based on the provision of medical care. See, e.g. , Villa v. State , 417 S.W.3d 455, 462 (Tex. Crim. App. 2013) ("The medical-care defense is one of confession and avoidance. As such, a defendant claiming entitlement to an instruction on the medical-care defense must admit to each element of the offense, including both the act and the requisite mental state."); Cornet v. State , 417 S.W.3d 446, 451 (Tex. Crim. App. 2013) ( Cornet II ) (explaining that "[w]hen the defensive evidence does no more than attempt to negate an element of the offense, a defendant is not entitled to a defensive instruction on any defense subject to the confession-and-avoidance doctrine"); Cornet v. State , 359 S.W.3d 217, 225 (Tex. Crim. App. 2012) ( Cornet I ) (holding that medical-care defense does not negate any element of the offense, including culpable intent; it only excuses what would otherwise constitute criminal conduct).

Bocanegra testified that when he applied cream to Amy's rash, he applied the cream "[e]verywhere where, I guess, where the pee made contact. I guess on her inner thighs almost to her waist, you know, on her 'cookie;' vagina, you know. I—Everywhere." This testimony by Bocanegra constitutes evidence that he penetrated Amy's female sexual organ and was sufficient to entitle Bocanegra to an instruction on the medical-care defense.⁸ See Villa , 417 S.W.3d at 462 (holding that reasonable juror could infer that appellant's testimony—that he had applied Desitin to the red area outside the vagina and that he had "touched the genitals of this little girl"—was an admission that appellant had contact with victim's labia minora and constituted penetration of her sexual organ, thus entitling appellant to an instruction on the medical-care defense); Cornet I , 359 S.W.3d at 226 ("As for 'admitting' conduct under the doctrine of confession and avoidance, it is sufficient that the defendant point to defensive evidence, originating in his own statements, such that a trier of fact could reasonably infer that each element of the offense has been satisfied.").

Because the medical-care defense is one of confession and avoidance, the Majority Opinion's holding—that the evidence is insufficient to support the elements of the offense of aggravated sexual assault but that the evidence is sufficient to support the medical-care defense—is both irreconcilable and contradictory to the law.

IV. ACCEPTANCE OR REJECTION OF BOCANEGRA'S MEDICAL–CARE DEFENSE WAS WITHIN THE SOLE PROVINCE OF THE JURY

In holding that the evidence was "insufficient to support ... rejection of the medical[-]care defense beyond a reasonable doubt[,]"⁹ the Majority Opinion fails to defer to the jury's resolution of credibility determinations as mandated by Jackson v. Virginia . See 443 U.S. at 319, 99 S.Ct. at 2789 ; Dobbs v. State , 434 S.W.3d 166, 170 (Tex. Crim. App. 2014) ; Brooks v. State , 323 S.W.3d 893, 899 (Tex. Crim. App. 2010) (stating that "reviewing court is required to defer to the jury's credibility and weight determinations because the jury is the sole judge of the witnesses' credibility and the weight to be given their testimony"). The jury sent out ten notes during its guilt-innocence deliberations. The notes reflect that before reaching its decision to reject Bocanegra's medical-care defense, the jury requested some of the most pertinent evidence—including the forensic investigator's testimony about the description provided by Amy's mother Mandy concerning what had happened to Amy, the exact outcry statement, the demonstration by the SANE of how Amy had showed her on her fingers that Bocanegra had penetrated her sexual organ, and the SANE's credentials. And ultimately, the jury was free to disbelieve Bocanegra's testimony that his penetration of Amy's sexual organ was not of a sexual nature and was performed as medical care. See, e.g. , Browne v. State , 483 S.W.3d 183, 195 (Tex. App.—Austin 2015, no pet.) (stating that jury's decision showed that it "clearly ... did not believe" appellant's testimony that he had touched the victim's sexual organ only as a caretaker).

Instead of relying on the credibility decision reached by the jury—to disbelieve Bocanegra's testimony that his conduct in penetrating Amy's sexual organ was not of a sexual nature and that it was instead performed as medical care—the Majority Opinion substitutes its own credibility determination (that Bocanegra is credible) for the jury's credibility determination (that Bocanegra is not credible) and holds the evidence insufficient to support the jury's rejection of Bocanegra's medical-care defense. But see Isassi v. State , 330 S.W.3d 633, 638 (Tex. Crim. App. 2010) ("This Court may not re-evaluate the weight and credibility of the record evidence and thereby substitute our judgment for that of the factfinder"); Laster v. State , 275 S.W.3d 512, 517 (Tex. Crim. App. 2009) (recognizing appellate courts are ill-equipped to weigh the evidence reflected in a cold record and must ask only whether any rational trier of fact could have found essential elements beyond a reasonable doubt, not whether it believes that the evidence established guilt beyond a reasonable doubt).¹⁰ In short, the Majority Opinion holds that the jury was required to believe Bocanegra's testimony that when he penetrated Amy's " 'cookie;' vagina, you know," he was providing medical care.

V. CONCLUSION

Based on the evidence presented at trial, when reviewed in its entirety in the light most favorable to the jury's verdict, any rational trier of fact could have found beyond a reasonable doubt that Bocanegra intentionally or knowingly caused the penetration of the sexual organ of Amy, a child who was younger than fourteen years of age, by inserting his finger into her sexual organ and also could have found beyond a reasonable doubt against Bocanegra on his medical-care defense. See Saxton , 804 S.W.2d at 914 ; Williamson v. State , 356 S.W.3d 1, 15, 17 (Tex. App.—Houston [1st Dist.] 2010, pet. ref'd) (holding evidence sufficient to support conviction for serious bodily injury to a child younger than fifteen years of age and holding evidence sufficient to reject medical-care defense).

For the reasons set forth above, I respectfully dissent; I would affirm the trial court's judgment.

APPENDIX

MEMORANDUM OPINION¹

I. Introduction

In the last of his four points, Appellant Calub Bocanegra appeals his conviction for aggravated sexual assault of a child younger than fourteen years of age, challenging the sufficiency of the evidence to support his conviction and the jury's rejection of his medical-care defense. See Tex. Penal Code Ann. § 22.011(d) (West 2011), § 22.021(a)(1)(B)(i), (a)(2)(B) (West Supp. 2016). The...