Gallegos v. State

• Decision Date: 01 February 1996
• Docket Number: No. 13-94-463-CR,13-94-463-CR
• Citation: 918 S.W.2d 50
• Parties: Gregorio Torres GALLEGOS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 50

918 S.W.2d 50

Gregorio Torres GALLEGOS, Appellant, v. The STATE of Texas, Appellee.

No. 13-94-463-CR.

Court of Appeals of Texas,

Corpus Christi.

Feb. 1, 1996.

Richard B. Gould, McAllen, for appellant.

Rene Guerra, District Attorney, Thedore C. Hake, Asst. District Attorney, Traci A. Sellman, Asst. District Attorney, Edinburg, for appellee.

Before YANEZ, CHAVEZ and RODRIGUEZ, JJ.

OPINION

YANEZ, Justice.

This appeal arises from the conviction of appellant, Gregorio Torres Gallegos, for two counts of aggravated sexual assault, two counts of indecency with a child by contact, and one count of indecency with a child by exposure. After finding appellant guilty, a jury assessed punishment at fifty years imprisonment for the aggravated sexual assaults, twenty years imprisonment for the indecency with a child by contact counts, and five years imprisonment for indecency with a child by exposure. The trial court ordered that the sentences should run concurrently. By eight points of error, appellant challenges the sufficiency of the evidence, claims that the trial court improperly admitted evidence, and complains about the State's improper jury argument. We affirm.

In October 1994, M.R., a five year-old, told her mother, Mrs. Lilia Aleman, that appellant had kissed her. Appellant lived next door to M.R. M.R. also told her mother that appellant had kissed her mouth, her "pee-pee," and her rear. M.R. told her mother that appellant had put his pee-pee in her front and her rear. M.R. recounted that when she had gone to appellant's house to play with one of his daughters, appellant covered the windows and closed the door. Appellant then pulled down her panties. Mrs. Aleman notified the police. A Child Protective Services Investigator, Cynthia Trejo, went to appellant's home that evening and interviewed his children. Ms. Trejo talked to appellant's seven year-old daughter, A.G. A.G. told Ms. Trejo that her father had been sexually abusing her. Ms. Trejo testified that A.G. told her that appellant had touched her neighbor M.R.'s rear-end. She also explained that appellant had touched her in her rear-end and front. A.G. related that appellant had kissed her several times and that he would take her into her parents' bedroom and lock the door. She told Ms. Trejo that appellant would take off his clothes, take off A.G.'s clothes, and he would then touch and kiss her all over. A.G. also stated that appellant would put cream on his pee-pee and put it "in front of me" and "in back of me." A.G. told her that it hurt when appellant did this, and that once she had stained her panties. A.G. told Ms. Trejo that appellant had done these things after school had started and that he did it when her mother was at work during the afternoon. Appellant was later arrested.

At trial, Mrs. Aleman restated what M.R. had told her about appellant. She denied telling the girls what to say about appellant's behavior. M.R. also testified that what she told her mother was true. M.R. testified that appellant would take off his pants and she could see his underwear. Appellant also took off her dress and touched her "in the pompis ¹ and in my pee-pee." Once appellant pulled her toward him and sat her on his lap while he was wearing no pants and she had no panties. She also testified that appellant touched her breasts. Further, Ms. Trejo was allowed to testify as an outcry witness at trial about her conversation with A.G.

A.G. was examined by a physician, Dr. Rene Vela. He testified that he examined A.G., but stated that the exam was brief and only visual because A.G. was scared and difficult to restrain. He explained that A.G. did not have a hymenal ring, and that she had a grossly enlarged hymenal opening. The doctor testified that this was unusual and abnormal for a seven-year-old; the absence of a hymenal ring is usually caused by vaginal penetration or injury. Dr. Vela stated that he also noticed a sexually transmitted genital wart in A.G.'s anal area. Dr. Vela, however, performed no tests to determine the wart's exact type. Dr. Vela further testified that A.G.'s demeanor, trauma, bruising, and anal tears all indicated that she had been sexually abused.

Additionally at trial, A.G. denied that she had ever told Ms. Trejo that appellant had touched her in a bad way. She testified that appellant never touched her front or back areas nor did he sexually abuse her. A.G. testified that Mrs. Aleman made her cry the day the investigator came over because she said that her mother was going to jail. Moreover, A.G.'s two young cousins testified that appellant never touched them in a bad way. A.G.'s mother also testified. She stated that appellant never abused the girls, that A.G. had been born with the anal wart, and that she never noticed a discharge on A.G.'s panties. She acknowledged, however, that Ms. Trejo told her the evening of the interview that A.G. had told her that appellant had abused her. A.G.'s mother further stated that Mrs. Aleman was mad at appellant, and she told the girls what to say. She stated that Mrs. Aleman told A.G. that her mother would go to jail if she did not tell the police that appellant had touched her. Appellant also took the stand and denied the charges. Appellant testified that Mrs. Aleman made up the story and convinced the girls to make the allegations.

SUFFICIENCY OF THE EVIDENCE

By points of error one through four, appellant complains that the evidence is insufficient to sustain his conviction for the two counts of aggravated sexual assault, and the two counts of indecency with a child. In determining the merits of an insufficiency claim, we review the evidence in the light most favorable to the verdict to determine if any rational trier of fact could have found each element of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Geesa v. State, 820 S.W.2d 154, 157 (Tex.Crim.App.1991). We also apply this standard to cases involving circumstantial evidence. Earhart v. State, 823 S.W.2d 607, 616 (Tex.Crim.App.1991); Carlsen v. State, 654 S.W.2d 444, 449 (Tex.Crim.App.1983) (opinion on reh'g). We measure the sufficiency of the evidence against the indictment as incorporated into the jury charge. Jones v. State, 815 S.W.2d 667, 670-71 (Tex.Crim.App.1991).

By counts one and four, the State charged appellant with aggravated sexual assault of his daughter A.G. and with M.R. The jury was instructed that a person commits aggravated sexual assault if the person intentionally or knowingly causes the sexual organ or anus of a child under fourteen years of age to contact the sexual organ of another person including the actor. TEX.PENAL CODE ANN. § 22.021 (Vernon 1989).

By point of error one, appellant complains that the evidence was insufficient to convict him because A.G. denied being touched by him in a bad way. Appellant also claims that the outcry witness testimony of Ms. Trejo was improperly admitted. Appellant contends that when outcry witness testimony does not meet the requirements outlined in article 38.072 of the Code of Criminal Procedure, as he argues is the case here, the testimony lacks probative force upon appellate review. These two factors together, appellant contends, amount to no evidence that appellant sexually assaulted A.G. In spite of appellant's plea, the Court of Criminal Appeals has announced that when reviewing the sufficiency of the evidence, an appellate court must examine all the evidence, including any that was erroneously admitted in sexual assault cases. Rodriguez v. State, 819 S.W.2d 871, 873 (Tex.Crim.App.1991); Villalon v. State, 791 S.W.2d 130, 133 (Tex.Crim.App.1990). Further, outcry witness evidence admitted under article 38.072 of the Code of Criminal Procedure, as was Ms. Trejo's, is admitted as an exception to the hearsay rule and as such is substantive evidence, admissible for the truth of the matter asserted in the testimony. Rodriguez, 819 S.W.2d at 873. As well, in reviewing the evidence in cases involving children, we cannot expect child victims to testify with the same clarity and ability as is expected of mature and capable adults. Villalon, 791 S.W.2d at 134. Where the child has sufficiently communicated that the touching occurred to a part of the body within the definition of the statute, the evidence will be sufficient to support a conviction regardless of the unsophisticated language that the child uses. Clark v. State, 558 S.W.2d 887, 889 (Tex.Crim.App.1977).

Here, Ms. Trejo testified that A.G. told her that her father had been sexually abusing her. Ms. Trejo testified that A.G. told her that appellant had touched her in her rear-end and front. A.G. related that appellant had kissed her several times and that he would take her into her parents' bedroom and lock the door. She told Ms. Trejo that appellant would take off his clothes, take off A.G.'s clothes, and he would then touch and kiss her all over. A.G. also stated that appellant would put cream on his pee-pee and put it "in front of me" and "in back of me." A.G. told her that it hurt when appellant did this, and that once she had stained her panties. Dr. Rene Vela also testified that when he examined A.G. she did not have a hymenal ring, and that she had a grossly enlarged hymenal opening. The doctor testified that this was unusual and abnormal for a seven-year-old and was caused either by vaginal penetration or injury. Dr. Vela stated that he also noticed a sexually transmitted genital wart in A.G.'s anal area. Dr. Vela further testified that A.G.'s demeanor, trauma, bruising, and anal tears all indicated that she had been sexually abused. The jury also heard evidence that A.G. was seven years old when the offense occurred. The evidence is sufficient to sustain appellant's conviction on count one of aggravated sexual assault. Point one is overruled.

By point four, appellant claims that the evidence is insufficient to show that he...