Gonzalez Soto v. State

• Decision Date: 29 July 2008
• Docket Number: No. 13-06-00202-CR.,13-06-00202-CR.
• Citation: 267 S.W.3d 327
• Parties: Manuel GONZALEZ SOTO, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

267 S.W.3d 327

Manuel GONZALEZ SOTO, Appellant, v. The STATE of Texas, Appellee.

No. 13-06-00202-CR.

Court of Appeals of Texas, Corpus Christi-Edinburg.

July 29, 2008.

Rehearing Overruled September 25, 2008.

Derek M. Harkrider, Edinburg, for appellant.

Rene A. Guerra, Criminal Dist. Atty., Theodore C. Hake, Asst. Crim. Dist. Atty., Edinburg, for appellee.

Before Justices YAÑEZ, RODRIGUEZ, and VELA.

OPINION

Opinion by Justice YAÑEZ.

A jury convicted appellant, Manuel Gonzalez Soto, of aggravated sexual assault of a child¹ (Count 1), indecency with a child by contact² (Count 2), and indecency with a child by exposure³ (Count 3). The jury assessed punishment at ninety-nine years' imprisonment on Count 1, twenty years on Count 2, and ten years on Count 3, to be served concurrently. By six issues, appellant contends (1) the trial court erred in admitting certain evidence, over his objections (issues one through three); (2) the evidence is legally and factually insufficient to support his convictions for Count 1, paragraph three, and Count 2, paragraphs one and two (issue four); (3) the jury charge erroneously permitted the jury to convict him on less than a unanimous verdict on Counts 1 and 2 (issue five); and (4) the trial court erred in instructing the jury regarding his eligibility for parole (issue six).

We sustain appellant's fifth issue, and hold that (1) the jury charge erroneously permitted a conviction on a less-than-unanimous verdict on the alternative paragraphs alleged in Counts 1 and 2 and appellant was egregiously harmed by the error; and (2) on remand, the evidence is legally insufficient to support paragraph three of Count 1—that appellant digitally penetrated the victim's sexual organ. As a result of the non-unanimous verdict error in Counts 1 and 2, we cannot determine whether the jury erroneously relied on conduct subsumed within offenses charged in Counts 1 and 2 in convicting appellant in Count 3. We reverse appellant's convictions on all three counts and remand the cause for a new trial.

I. Background

Appellant is the uncle of A.R., the ten-year-old female victim.⁴ A.R. testified that the offenses at issue occurred at her home in McAllen, where she lives with her mother, older brother, and older sister.⁵ At the time of the incident, A.R.'s mother was in the hospital. A.R.'s maternal grandmother, who lived with appellant in Reynosa, Mexico, was at the house. Appellant and several other relatives came to the house for a short visit.

A.R. testified that when she came out of the bathroom in her mother's bedroom, appellant was in the bedroom. He forced her to rub his penis, put his penis in her mouth, and touched her "chest." When he stopped, A.R. went to her room, but appellant followed a few minutes later. In A.R.'s bedroom, appellant again put his penis in her mouth. She testified that through her clothing, he touched her chest, butt, and "middle part" with his hand.⁶ She also stated he touched her butt with his exposed penis.

A.R.'s mother testified that when she returned home from the hospital, she noticed adverse changes in A.R.'s behavior: frequent crying, inability to sleep, and nightmares. A.R.'s mother took A.R. to Mujeres Unidas, a center for victims of family violence, for counseling. A.R.'s mother was present when A.R. told the counselor what had happened. The counselor notified the McAllen Police Department and accompanied A.R. and her mother to the hospital. At the hospital, A.R. was interviewed by Officer Eliezer Saldana and examined by Lorenza Guerrero, a sexual assault nurse examiner.

Sandra Orta, an investigator for Child Protective Services, testified that a couple of months after the incident, A.R. was interviewed by a forensic interviewer at the Children's Advocacy Center. Ms. Orta observed the interview, which was videotaped.

Officer Jose Buitron, an investigating police officer assigned to the case, testified that he was present when A.R. was interviewed at the Children's Advocacy Center. He also interviewed A.R.'s mother, who provided additional information regarding appellant. A.R.'s mother provided Officer Buitron with photographs of appellant, a description of his vehicle, and information about monthly trips he made from Reynosa to the post office in Hidalgo, Texas. In early December, Officer Buitron encountered appellant at the Hidalgo post office and advised him he had been accused of aggravated sexual assault. Appellant denied the allegations and agreed to come to the police station for questioning. Appellant was Mirandized⁷ and provided a statement. Shortly thereafter, appellant was arrested. In the course of Officer Buitron's investigation, he also interviewed A.R.'s grandmother, mother, and brother.

II. Legal Sufficiency of the Evidence

In his fourth issue, appellant contends, in part, that the evidence is legally insufficient to support his convictions for (1) Count 1, paragraph three (that he committed aggravated sexual assault by digital penetration of A.R.'s sexual organ); (2) Count 2, paragraph one (that he committed indecency with a child by contact by touching A.R.'s genitals); and (3) Count 2, paragraph two (that he committed indecency with a child by contact by touching A.R.'s breast). We address this part of appellant's fourth issue first because it could afford him the most relief.⁸

A. Standard of Review and Applicable Law

Evidence is legally insufficient if, when viewed in a light most favorable to the verdict, a rational jury could not have found each element of the offense beyond a reasonable doubt.⁹ The jury is the exclusive judge of the credibility of witnesses and of the weight to be given testimony, and it is also the exclusive province of the jury to reconcile conflicts in the evidence.¹⁰ Thus, when performing a legal-sufficiency review, we may not re-evaluate the weight and credibility of the evidence and substitute our judgment for that of the fact finder.¹¹ We must resolve any inconsistencies in the testimony in favor of the verdict.¹²

The legal sufficiency of the evidence is measured against the elements of the offense as defined by a hypothetically correct jury charge for the case.¹³ Such a charge would be one that accurately sets out the law, is authorized by the indictment, does not unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried.¹⁴

The testimony of a child sexual abuse victim alone is sufficient to support a conviction for indecency with a child or aggravated sexual assault.¹⁵ Courts give wide latitude to testimony given by child victims of sexual abuse.¹⁶ The victim's description of what happened to her need not be precise, and she is not expected to express herself at the same level of sophistication as an adult.¹⁷ There is no requirement that the victim's testimony be corroborated by medical or physical evidence.¹⁸ The requisite specific intent for indecency with a child by contact can be inferred from the defendant's conduct and remarks and all the surrounding circumstances.¹⁹

To establish appellant's guilt as to Count 1, paragraph three (aggravated sexual assault by digital penetration), the State was required to prove that appellant (1) intentionally and knowingly (2) caused his finger to penetrate A.R.'s sexual organ, and (3) A.R. was a child under fourteen years old.²⁰ As to Count 2, paragraph one (indecency with a child by contact), the State was required to prove that appellant (1) engaged in sexual contact with A.R. by touching A.R.'s genitals (2) with the intent to arouse or gratify appellant's sexual desire, and (3) A.R. was a child younger than seventeen years old and not appellant's spouse.²¹ As to Count 2, paragraph two (indecency with a child by contact), the State was required to prove that appellant (1) engaged in sexual contact with A.R. by touching A.R.'s breast (2) with the intent to arouse or gratify appellant's sexual desire, and (3) A.R. was a child younger than seventeen years old and not appellant's spouse.²²

B. Discussion

In its brief, the State "candidly acknowledge[s] that the evidence in this case does not support the allegation that Appellant had penetrated the victim's sexual organ with his finger [as] alleged in Paragraph Three of Count One of the indictment in this case." We agree. We therefore conclude the evidence is legally insufficient to establish that appellant caused his finger to penetrate A.R.'s sexual organ as alleged in Count 1, paragraph three of the indictment.²³ We sustain that portion of appellant's fourth issue as it relates to the legal sufficiency of Count 1, paragraph three.

With regard to appellant's challenge to the legal sufficiency of the evidence that he committed indecency with a child by touching A.R.'s genitals and breast, as alleged in Count 2, paragraph one, and Count 2, paragraph two respectively, A.R. testified that appellant touched her "middle part" with his hand. She also testified that she placed "Xs" on a drawing of a young female body to demonstrate where appellant touched her.²⁴ On the frontal view of the drawing, A.R. placed an "X" on the female genital area, which is marked "middle part," and on the left breast, which is marked "chest." A.R. also used anatomically correct dolls to demonstrate to the jury that appellant touched her on her "chest." A.R. testified she was eleven years old at the time of trial and identified appellant as her uncle. Lorenza Guerrero, a sexual assault nurse examiner that examined A.R., testified that A.R. told her appellant had touched her in the genital area and had rubbed his penis on her "vaginal area."

With regard to the evidence that he touched part of A.R.'s genitals, appellant complains that the drawing on Exhibit 3 is "imprecise," and thus does not show with specificity "what part of the child was actually touched." He also complains that A.R. did not clarify what she meant by "middle part," and that Nurse...