Carmona v. State

• Decision Date: 27 October 2020
• Docket Number: NO. 14-19-00268-CR,14-19-00268-CR
• Parties: Jose Guadalupe CARMONA, Appellant v. The STATE of Texas, Appellee
• Court: Texas Court of Appeals

610 S.W.3d 611

Jose Guadalupe CARMONA, Appellant

v.The STATE of Texas, Appellee

NO. 14-19-00268-CR

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

Opinion filed October 27, 2020

Kem Thompson Frost, Chief Justice

Convicted of indecency with a child by contact, appellant Jose Guadalupe Carmona challenges the legal sufficiency of the evidence and asserts the trial court erred in refusing to suppress a recorded statement. The State asserts that we should modify the trial court's judgment to delete findings that are contrary to the record. We modify the judgment to delete these findings and affirm the judgment as modified.

I. FACTUAL AND PROCEDURAL BACKGROUND

Appellant lived in the same apartment complex as the complainant, Moana, Moana's two older siblings, and Moana's mother, Miriam.¹ Appellant and Miriam began dating, and after Miriam gave birth to the first of their two children, appellant moved in with Miriam's family. Miriam kicked appellant out of the apartment sometime in 2012. According to Moana, Miriam took this action when Moana told her mother that appellant had touched Moana's buttocks.

In 2014, Moana, then about ten years old, told her older sister that appellant had exposed himself to her and offered her money in exchange for her touching appellant's penis. The sister notified her mother and called the police. A forensic investigator, Clara Rivers interviewed Moana. Due to a backlog at the police department, the interview did not occur until 2016. At that time Moana reported many instances of appellant's indecent behavior. Although Moana did not give exact dates as to when the conduct occurred, the complainant specified a time frame, testifying that the incidents occurred between her second and third or fourth grade years in school.

After the filing of a formal complaint, appellant was arrested. The next day, appellant appeared before a magistrate, where he requested appointment of counsel. On the following day, the court appointed counsel to represent appellant. Five days after appointment of counsel and without contacting his counsel, Houston Police Department Officers Himes and Arellano went to the Harris County Jail to interview appellant. After generally denying most of the allegations, appellant stated "I made a mistake" while insisting he "touched complainant only one time." Indicted and tried for the offense of "continuous sexual assault of a child," a jury returned a verdict finding appellant guilty of the lesser-included offense of indecency with a child by contact. The jury assessed his punishment at fifteen years' confinement.

II. SUFFICIENCY OF THE EVIDENCE

In his first issue, appellant challenges the sufficiency of evidence. In evaluating this challenge, 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 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). We may not overturn the verdict 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 trier of fact stands as 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 trier of fact 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. See McDuff v. State , 939 S.W.2d 607, 614 (Tex. Crim. App. 1997).

Legal Standards

The indictment alleged an offense of continuous sexual assault of a child. In his brief, appellant asserts a legal-sufficiency challenge to a conviction for continuous sexual assault of a child, an offense for which appellant was not convicted. Though appellant stood trial for that offense, the jury did not return a "guilty" verdict on that charge. Appellant was convicted only of the lesser-included offense of indecency with a child by contact. Appellant's main argument under this issue is that the evidence at trial failed to specify any date or time frame when the alleged acts occurred. We liberally construe appellant's brief as challenging the legal sufficiency of the evidence to support the indecency-with-a-child-by-contact conviction, and we address appellant's lack-of-specific-date-or-time-frame argument in this context.

As is relevant to the challenged conviction, a person commits the offense of indecency with a child by contact if the person intentionally or knowingly engages in sexual contact with a child younger than 17 years of age or causes the child to engage in sexual contact. See Tex. Penal Code Ann. § 21.11(a)(1). "Sexual contact" includes the following acts, if committed with the intent to arouse or gratify the sexual desire of any person: (1) a person's "touching through clothing" of any part of the genitals of a child, and (2) "any touching of any part of the body of a child ... with ... any part of the genitals of a person." See Tex. Penal Code Ann. § 21.11(c).

In a sufficiency analysis the question "is not what evidence there isn't, it's what evidence there is." Acosta v. State , 429 S.W.3d 621, 630 (Tex. Crim. App. 2014). Circumstantial evidence alone can be sufficient to establish guilt. Id. at 625. In such cases, it is enough if the conclusion is warranted by the combined and cumulative force of all the incriminating circumstances. Id. The jury may use common sense and apply common knowledge, observation, and experience gained in ordinary affairs when drawing inferences from the evidence. Id.

Evidence Supporting the Indecency-with-a-Child Conviction

At trial, Clara Rivers, the forensic evaluator, testified as an outcry witness about what she learned when she conducted the forensic interview with Moana. Rivers testified that Moana gave "a chronological description of everything that happened the way it happened, and she was very detailed." According to Rivers, Moana reported various instances, recounting how appellant would make Moana touch his "private area" and explaining that appellant taught Moana how to do so.

Moana described to Rivers "masturbating [appellant] to the point of ejaculation." Moana told Rivers that appellant made her touch his private area ten to twelve times. Rivers also testified that Moana complained that appellant would slap her buttocks when Moana's mother was not around. Rivers testified about another incident Moana had reported in which appellant grabbed Moana as she watched television and after telling the child to be quiet, rubbed her vagina over her clothes.

Moana's testimony was consistent with the events Rivers described. Moana testified that she thought the events began when she was in the second grade and occurred until she was in the third or fourth grade. At trial the evidence showed that Moana was born in 2004, that she was seven years old and in second grade in 2011, and she was about ten years old when she reported the incidents in 2014, two years after Moana's mother broke up with appellant and kicked appellant out of the apartment. Moana testified that her Mother took this action when Moana told Miriam that appellant had been touching her buttocks. Moana did not testify at trial about the over-the-clothes touching of her vagina. Neither side asked Moana any details about that incident. Moana testified that appellant "tried" to touch her vagina but "she did not let him." Moana testified that appellant first made her touch his genitals when she was in second grade, and that it occurred more than three times after that. Moana described several instances of this conduct, occurring in different places, including a time where appellant ejaculated on her hand and the floor.

Consistent with a trial under the continuous-sexual-abuse-of-a-child offense, the State put on proof of multiple instances of sexual contact between appellant and Moana. Appellant did not request that the State elect an act upon which it was relying for a conviction. The "on or about" language in an indictment allows the State to prove a date other than the one alleged in the indictment "as long as the date is anterior to the presentment of the indictment and within the statutory limitation period." See Sledge v. State , 953 S.W.2d 253, 255 (Tex. Crim. App. 1997). All of the acts of sexual contact described at trial occurred between 2011 and 2014. Appellant was not indicted until 2016, and there is no statute of limitations for the offense. See Tex. Code Crim. Proc. Ann. art. 12.01(1). Thus, the acts of sexual contact shown by the evidence at trial all occurred at a time that would allow these acts to be used to prove appellant's guilt. See Sledge , 953 S.W.2d at 256. The law recognizes the limitations of child witnesses and does not expect them to recount events that occurred when they were children with the same level of clarity and precision as adults. See Carr v. State , 477 S.W.3d 335, 340 (Tex. App.—Houston [14th Dist.] 2015, pet. ref'd). Moana's inability at age 14 to testify with more precision about the timing of events occurring when she was age seven to ten is not surprising. The jury heard the evidence and the chronological narratives Moana and the outcry witness provided.

Under the applicable standard of review, we conclude that a rational trier of fact could have found beyond a reasonable doubt that appellant intentionally or knowingly engaged in sexual contact with Moana, a child younger than 17 years of age. See Tex. Penal Code Ann. § 21.11(a)(1) ; Phea v. State , 190 S.W.3d 232, 237 (Tex....