Esquivel v. State
| Decision Date | 14 December 2017 |
| Docket Number | NUMBER 13-16-00468-CR |
| Parties | FERNANDO ESQUIVEL, Appellant, v. THE STATE OF TEXAS, Appellee. |
| Court | Texas Court of Appeals |
On appeal from the 103rd District Court of Cameron County, Texas.
Before Justices Rodriguez, Contreras, and Benavides
A jury found appellant Fernando Esquivel guilty of continuous sexual abuse of a young child, D.E.,1 a first-degree felony, and assessed punishment at seventy years inthe Texas Department of Criminal Justice-Institutional Division, without the possibility of parole. See TEX. PENAL CODE ANN. § 21.02(b), (h) (West, Westlaw through 2017 1st C.S.); see also TEX. GOV'T CODE ANN. § 508.145 (West, Westlaw through 2017 1st C.S.) (setting out that an inmate serving an offense under section 21.02 is not eligible for release on parole). The trial court sentenced Esquivel accordingly.
By eight issues, which we have reorganized, Esquivel contends: (1) the evidence is insufficient to support his conviction; and the trial court erred in (2) qualifying the complainant child witness, D.E., in the presence of the jury; (3) admitting D.E.'s video statement into evidence; (4-5) limiting the cross-examination of D.E. about her video statement and the cross-examination of D.S., the child's mother, about her affidavit for a protective order; (6) not admitting D.E.'s medical records into evidence; (7) granting the State's request for a jury instruction on a lesser-included offense; and (8) at the punishment phase, instructing the jury that Esquivel could be awarded time off for good conduct. We affirm.
By his first issue, Esquivel contends that the evidence is insufficient to prove the element of continuous sexual abuse: that is, the evidence did not show that Esquivel committed two or more sexual abuse acts against D.E. during a period of thirty days or more in duration. See TEX. PENAL CODE ANN. § 21.02(b).
Courts of appeal review the sufficiency of evidence establishing the elements of a criminal offense for which the State has the burden of proof under the single sufficiencystandard set out in Jackson v. Virginia. 443 U.S. 307, 319 (1979); Fernandez v. State, 479 S.W.3d 835, 837 (Tex. Crim. App. 2016). "[A] reviewing court must consider all of the evidence in the light most favorable to the verdict and determine whether, based on that evidence and reasonable inferences therefrom, a rational fact finder could have found the essential elements of the crime beyond a reasonable doubt." Whatley v. State, 445 S.W.3d 159, 166 (Tex. Crim. App. 2014) (quoting Gear v. State, 340 S.W.3d 743, 746 (Tex. Crim. App. 2011) (citing Jackson, 443 U.S. at 318-19)); see Fernandez, 479 S.W.3d at 837-38. When evaluating a sufficiency challenge, we must consider all of the evidence presented, whether properly or improperly admitted. Fuller v. State, 827 S.W.2d 919, 931 (Tex. Crim. App. 1992) (en banc).
It is unnecessary for every fact to point directly and independently to the guilt of the accused; it is enough if the finding of guilt is warranted by the cumulative force of all incriminating evidence. Winfrey v. State, 393 S.W.3d 763, 768 (Tex. Crim. App. 2013). In our sufficiency review, direct and circumstantial evidence are treated equally—that is, circumstantial evidence is as probative as direct evidence in establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to establish guilt. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).
This standard "recognizes the trier of fact's role as the sole judge of the weight and credibility of the evidence after drawing reasonable inferences from the evidence." Adames v. State, 353 S.W.3d 854, 860 (Tex. Crim. App. 2011). We must not re-evaluate the weight and credibility of the evidence and substitute our judgment for that of the factfinder. See Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999) (en banc).We must presume that the factfinder resolved any conflicting inferences in favor of the prosecution and defer to that resolution. Jackson, 443 U.S. at 326; Clayton, 235 S.W.3d at 778.
The reviewing court measures the sufficiency of the evidence by the elements of the offense as defined by a hypothetically correct jury charge. Villarreal v. State, 286 S.W.3d 321, 327 (Tex. Crim. App. 2009). A hypothetically correct jury charge is authorized by the indictment, accurately sets out the law, does not unnecessarily increase the State's burden of proof or restrict the State's theories of liability, and adequately describes the particular offense in question. Id.; Malik v. State, 953 S.W.2d 234, 239 (Tex. Crim. App. 1997) (en banc). A hypothetically correct charge would instruct the jury to find Esquivel guilty if: (1) during a period that is thirty or more days in duration, (2) Esquivel committed two or more acts of sexual abuse against the same child, in this case, and (3) the child was younger than fourteen years of age. See TEX. PENAL CODE ANN. § 21.02(b).
Esquivel contends that the evidence is insufficient to establish that he committed two or more acts of sexual abuse against D.E. over a period that is thirty days or more in duration. See id. He argues that there is insufficient evidence because there were no eye witnesses, no admissions on his part, no physical evidence connecting him to the sexual abuse, no scientific or medical evidence consistent with the occurrence of sexual abuse, inconsistent testimony, and no evidence to prove the five, or even two, of the alleged acts of sexual abuse. He notes that D.E. had no physical injuries consistent withsexual assault. Esquivel also asserts that D.S., his ex-wife and D.E.'s mother, had an interest in the matter and a motive to punish him,2 that there was no evidence of any emotional or personality changes in the child, and that the evidence presented showed D.E. acted inconsistently with how a sexually abused child would act. We disagree.
The State charged Esquivel with the following:
D.E., who was eight at the time of the alleged offense and nine at the time of trial, testified that Esquivel touched her private parts with his hand and his tongue. D.E. also explained that Esquivel would make her touch his "middle part" with her hand. According to D.E., this happened more than ten times; it would happen every single time she went to her grandmother's home where Esquivel was living; "gooey stuff" would come out of his private part; it started happening around the second or third grade; and the last time it happened was the week before she made the outcry to her mother in May 2015.
The trial court admitted into evidence the medical records of the sexual assault nurse's exam of D.E. The records show that D.E. stated Esquivel would put his hands inside her shorts and touch her in her middle part (her female sexual organ). D.E. also told the nurse examiner that Esquivel would tell her to put his middle part in her mouth. According to the medical records, the incidents began around the second grade, "like the summer before [D.E.] started third grade . . . and] [t]he last time [D.E.] went to stay with him he did the same thing to [D.E.] again."
Three nurse examiners testified: Laura Dominguez, the nurse who examined D.E.; Sonja Edleman, the State's expert; and Cynthia Ann Garza, Esquivel's expert. All three stated that there was no trauma found to D.E.'s hymen, and all considered that to be a normal finding. As expressed by Garza, the examination of a child who has had sexual contact can often result in a normal finding or in a non-specific finding. Garzaexplained that the findings are dependent on a number of factors, especially the type of alleged contact and the timeframe between the alleged acts and the examination. Garza also testified that D.E. gave an age-appropriate, "pretty specific and detailed history" and that if she, Garza, had been D.E.'s nurse examiner, she would have reported the case to Child Protective Services or law enforcement.
Finally, over Esquivel's objections, the trial court admitted Ilce Vergara's forensic videotaped interview of D.E.3 Our review of the video, which was played in its entirety before the jury, reveals that D.E. described, in detail, multiple incidents that occurred between D.E. and Esquivel during her weekend visits with him from the middle of her second-grade year to the end of her third-grade year.
Considering the cumulative...
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