Cirlos v. State, No. 14-06-00209-CR (Tex. App. 5/17/2007)
| Decision Date | 17 May 2007 |
| Docket Number | No. 14-06-00210-CR.,No. 14-06-00209-CR.,14-06-00209-CR.,14-06-00210-CR. |
| Parties | ERNESTO DAVID CIRLOS, Appellant, v. STATE OF TEXAS, Appellee. |
| Court | Texas Court of Appeals |
On Appeal from the 262nd District Court, Harris County, Texas, Trial Court Cause Nos. 1035824 & 1035825.
Affirmed.
Panel consists of Justices YATES, ANDERSON, and HUDSON.
In a single criminal action, appellant, Ernesto David Cirlos, was found guilty by a jury of aggravated sexual assault of a child and indecency with a child. 1 See TEX. PEN. CODE ANN. §§ 21.11(a)(1) & 22.021 (Vernon 2003). Appellant was sentenced by the jury to forty years' confinement in the Institutional Division of the Texas Department of Criminal Justice for the aggravated sexual assault conviction and fifteen years' confinement for the indecency with a child conviction.2 The trial court ordered the sentences to run consecutively. Appellant now challenges both convictions on appeal. We affirm.
In the Spring of 2002, A. R. was a quiet, shy eight year old girl. At that time, A. R.'s best friend was N. J., who was a year older. The girls were neighbors in a north Houston trailer park for approximately seven or eight months. Appellant was also a resident of that trailer park.
Appellant and A. R.'s mother agreed to swap vehicles. When the vehicle appellant swapped with A. R.'s mother was repossessed, appellant agreed to pay A. R.'s mother money.3 In the spring of 2002 A.R.'s mother asked A. R. to go to appellant's trailer and ask if appellant had the money he owed her for the vehicle.
Both A. R. and N. J. testified regarding the incident. A. R. testified that on the way to appellant's trailer, she saw N. J. and asked N. J. to accompany her on the errand. Both girls knocked on appellant's door, which appellant opened. When A. R. asked about the money, appellant told her he had it, but it was in his room. Appellant had the girls come with him to his bedroom at the far end of the trailer.
Once they entered the bedroom, appellant grabbed both girls around their waists and threw them on the bed. Appellant's clothes were off and he told the girls to remove their clothing. A. R. complied because appellant threatened to kill her family if she did not. N. J. also had her pants and underwear off. A. R. saw appellant remove a circular piece of "plastic" from a package, which appellant placed on his "private part," which A. R. described as looking like a "cucumber." Appellant then placed his private part repeatedly in A. R.'s sexual organ, causing her pain. A. R. testified appellant eventually stopped and she noticed a "white liquid" inside the "plastic" as appellant took it off. Appellant also placed his mouth on A. R.'s and N. J.'s "private parts" and his hand on N. J.'s private parts". Appellant then hit A. R. on the cheek. A. R. testified that the blow hurt, but did not cause a bruise. Both girls were crying and appellant told them to "shut up." Someone then knocked on the front door of appellant's trailer and appellant told the girls to get dressed. Appellant then placed the girls in the back yard of his trailer, told them to stay there, and again threatened to kill their families. At N. J.'s urging, the girls fled from appellant's back yard.
A. R. went straight home but she wiped her tears before she saw her mother. Once she entered their trailer, she went straight to the restroom and did not discuss the abuse because she believed appellant's threats. In the restroom, A. R. noticed blood in her panties as she continued to cry.
A. R. did not disclose the attack until April 2005. A. R.'s sister was teasing A. R. that she might be pregnant because there were "a lot of cats around." A. R., fearing she might be pregnant because of the incident years earlier, finally told her mother about the assault. A. R.'s mother called the police and took A. R. to Texas Children's Hospital. Dr. Donna Mendez testified about her examination of A. R. Dr. Mendez testified the physical examination revealed no evidence of sexual trauma. Dr. Mendez also testified such a finding is not unusual when the physical examination is so far removed from the assault. N. J. did not disclose her knowledge about the incident until approached by the Houston Police officer investigating A. R.'s complaint.
During the trial, A. R.'s mother, Lydia, testified regarding A. R.'s reactions to viewing a photo array of appellant and seeing appellant in the courtroom the morning the trial started. Lydia testified A. R. appeared upset and she "freaked a little bit" when she viewed the photo array. Over appellant's objection, Lydia testified that when A. R. saw appellant in the courtroom the day the trial commenced, A. R. was scared, did not want to get up from her chair, and refused to look at appellant.
In addition to testifying about alleged long term sexual abuse by appellant, N. J. testified regarding the events underlying this appeal. N. J. remembered an incident with A. R. that occurred in appellant's trailer. N. J. testified appellant asked them if they wanted to play hide and seek. The two girls agreed and appellant turned off the lights. The girls then hid in appellant's closet where appellant discovered them. N. J. testified that appellant then "picked [them] up and threw [them] to the bed." N. J. then testified that appellant started tickling them and then got on top of N. J. Appellant then got on top of A. R. N. J. "jumped on [appellant] and told him to get off" of A. R. Appellant then moved and proceeded to touch N. J. on her sexual organ with his hand and then touched both complainants' sexual organs with his mouth. N. J. testified they eventually ran outside.
In cause number 1035825, the jury found appellant guilty of aggravated sexual assault of a child and assessed appellant's punishment at forty years' confinement and a $10,000 fine. The jury also found appellant guilty of indecency with a child in cause number 1035824 and assessed punishment at fifteen years' confinement and assessed a fine of $10,000. The State filed a motion for appellant's sentences to run consecutively pursuant to Texas Penal Code Section 3.03(b)(2). Appellant objected to serving the sentences consecutively as it would violate his state and federal constitutional rights to a trial by jury and protection against cruel and unusual punishment. The trial court overruled appellant's objections, granted the State's motion, and ordered that appellant would not begin serving his sentence on cause number 1035825, the aggravated sexual assault charge, until he had completed serving his sentence on cause number 1035824, the indecency with a minor charge. This appeal followed.
Appellant filed a separate appeal for each conviction. However, the first three issues are identical in both appeals. In appellate cause number 14-06-00210-CR, trial court cause number 1035825, the aggravated sexual assault of a child conviction, appellant raises a fourth issue not found in his other brief. We address the common issues in both appeals together.
In his first issue in both appeals, appellant argues the evidence is legally insufficient as, in appellant's view, the two complainants' testimony incriminating him was not credible. Appellant also asserts this lack of credibility is reinforced by the lack of evidence, including physical evidence, corroborating the girls' testimony regarding the incident. While recognizing the general rule that appellate courts do not review the credibility of witnesses, appellant asks this court to set this well-established rule aside and engage in a re-evaluation of the witnesses' credibility. We decline this invitation.
In a legal sufficiency review, we view all the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Salinas v. State, 163 S.W.3d 734, 737 (Tex. Crim. App. 2005). The jury, as the sole judge of the credibility of the witnesses, is free to believe or disbelieve all or part of a witness's testimony. Jones v. State, 984 S.W.2d 254, 257 (Tex. Crim. App. 1998). This standard gives full play to the responsibility of the trier of fact to resolve any conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319, 99 S.Ct at 2789. Reconciliation of conflicts in the evidence is within the jury's discretion, and such conflicts alone will not call for reversal if there is enough credible evidence to support a conviction. Losada v. State, 721 S.W.2d 305, 309 (Tex. Crim. App. 1986). An appellate court may not re-evaluate the weight and credibility of the evidence produced at trial and in so doing substitute its judgment for that of the fact finder. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). Inconsistencies in the evidence are resolved in favor of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000). Through a legal sufficiency review, we ensure only that the jury reached a rational decision. Muniz v. State, 851 S.W.2d 238, 246 (Tex. Crim. App. 1993); Harris v. State, 164 S.W.3d 775, 784 (Tex. App.CHouston [14th Dist.] 2005, pet. ref'd).
Here, appellant was charged with two offenses: aggravated sexual assault of a child and indecency with a child. In a legal sufficiency review, we determine only whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Cardenas v. State, 30 S.W.3d 384, 389 (Tex. Crim. App. 2000). To establish the offense of...
To continue reading
Request your trial