Gonzalez v. State
| Decision Date | 05 May 2016 |
| Docket Number | NO. 01-15-00395-CR,01-15-00395-CR |
| Parties | EVER RODRIGUEZ GONZALEZ, Appellant v. THE STATE OF TEXAS, Appellee |
| Court | Texas Court of Appeals |
On Appeal from the 184th District Court Harris County, Texas
A jury found appellant, Ever Rodriguez Gonzalez, guilty of the felony offense of indecency with a child1 and assessed his punishment at confinement for two years.In his sole issue, appellant contends that the trial court erred in instructing the jury regarding its "option[s]" during the punishment phase of trial.
We affirm.
The complainant testified that in July 2012, when she was twelve years old, she spent more time than usual at her cousin's house because her mother was "work[ing] a lot." Her cousin, Melissa, lived with the complainant's aunt and appellant, to whom the complainant's aunt was married. The complainant explained that she "listened" to appellant because she "really looked up to him" and "trusted him." She "saw him as like a dad . . . because [her] dad was never really around," and he was "like a second father to [her]."
One night, as the complainant, Melissa, and appellant watched a movie in the living room of the house, Melissa fell asleep. The complainant then fell asleep, but she awoke to appellant "touching" her, over her clothing, "on [her] vagina" with "[h]is fingers." Appellant told her, "[s]hoosh," "[i]t's okay," and "[i]t's all going to be okay." Appellant continued "rub[bing]" the complainant for approximately five minutes, and she "[f]elt weird" as he touched her because "[i]t wasn't something that [she had] felt before." The complainant did not tell appellant to stop or "say anything" because she was "[s]cared," "didn't know what was going on," and "didn't know what he was doing." She also did not tell Melissa because she "didn't knowhow to describe it" or "what it was," and she was concerned that Melissa would not believe her.
Subsequently, on a Sunday morning, Melissa woke the complainant and told her to go to appellant's bedroom to ask "where [they] were going to eat . . . breakfast." When she went to appellant's room, he told her to close the bedroom door, and she did. Appellant then told the complainant to "come to him." When she did, he "pulled [her] really close," and she could feel that "he had . . . a boner"; his penis was "hard" and "hitting" her. After appellant "hug[ged]" her, he "reached his hand down" and "grabbed [her] butt," "touch[ed]" it, and then "squeeze[d]" it, which made her "[u]ncomfortable." Appellant next told the complainant "to get on the bed." When she complied, he "bent [her] over," with her face "on the bed and [her] butt . . . sticking out." As appellant stood behind her, he started "humping" her, "pushing [his body] back and forth" with his hands on her waist. His penis, which was "[h]ard," "touch[ed] [her] butt." Appellant also "reach[ed] down" and "touch[ed]" the complainant's breasts, "squeez[ing]" and "rub[bing]" them. Although she and appellant were clothed during the entire incident, he tried to pull her shorts off and "pull up [her] shirt and get under" it.
During "another incident," when the complainant and appellant were in the kitchen of the house, he told her that he "want[ed] to try something with" her. He then "st[u]ck his tongue in [her] mouth" and "mov[ed]" it around. The complainant"told him to stop" because "[i]t was . . . weird" and she had "never" before done something like that.
On another occasion, when the complainant and appellant were watching television in the living room of the house, he said, "Oh, come here." When she did, he stood up, and gave her a "hug," which was "more close[]" than a "regular hug." After he hugged her, he "bent [the complainant] over the couch," "facedown," with her buttocks "up," and "[s]tarted . . . humping" her. She could feel that appellant "had another boner," and he again touched her "butt" with it.
Still, on another occasion, Melissa asked the complainant to see whether appellant would go to a Target store to purchase "something for her phone." When the complainant went to appellant, who was in his bedroom, he "hug[ged]" her. Again, she felt that "[h]e had a boner," which he "push[ed] . . . up against [her] vagina." Appellant then started moving his body "up and down," "rub[bing]" his penis against the complainant and "tilt[ing] his pelvis towards [her]."
The complainant further testified that "more than once," when appellant "had a boner," he took her hand and "rub[bed]" it "up against" his penis. When he took her hand, he "push[ed] it up against him" and "use[d] his other hand to . . . rub [his penis]," "[l]ike he . . . move[d] [her] hand for [her]."
The complainant also explained that appellant "always told [her] never to tell" anyone about what he had done to her because he would "get in trouble with thepolice." And she did not tell Melissa what he had done to her because she knew that appellant was important to both Melissa and the complainant's aunt, she did not "want to hurt Melissa," and appellant "supported" Melissa and the complainant's aunt "with money." She also did not tell her mother because she "didn't know how to tell her." In August 2012, the complainant finally told her "best friend," Marisa, what appellant had done because she "couldn't hold it in anymore," "felt like [she] could explain it better to [Marisa]," and Marisa "could understand it." She told Marisa not to report what appellant had done to law enforcement because she was "scared" and thought that appellant "would do something to [her] if [she] told" anyone. Marisa, however, did tell her mother what appellant had done to the complainant, and Marisa's mother relayed that information to the complainant's mother.
Tasha Rodgers-James, previously a forensic interviewer for the Children's Assessment Center, testified that on August 24, 2012, she interviewed the complainant, who was twelve years old. During the interview, the complainant described "four to five instances" of "sexual conduct" involving appellant in the kitchen, living room, and bedroom of his house.
After the jury found appellant guilty of the felony offense of indecency with a child, the trial court, in regard to punishment, instructed the jury in pertinent part:
A trial court must instruct a jury by "a written charge distinctly setting forth the law applicable to the case." TEX. CODE CRIM. PROC. ANN. art. 36.14 (Vernon 2007); McIntosh v. State, 297 S.W.3d 536, 542 (Tex. App.—Houston [1st Dist.] 2009, pet. ref'd). A review of jury-charge error involves a two-step analysis. Ngo v. State, 175 S.W.3d 738, 744 (Tex. Crim. App. 2005); Abdnor v. State, 871 S.W.2d 726, 731-32 (Tex. Crim. App. 1994). First, we must determine whether error actually exists in the charge, and, second, if error does exist, we must determine whether sufficient harm resulted from the error to require reversal. Ngo, 175 S.W.3d at 744; Abdnor, 871 S.W.2d at 731-32. If error was not preserved at trial by a proper objection, an error will not result in reversal unless the record shows "egregiousharm" such that the defendant was denied a fair and impartial trial.2 Warner v. State, 245 S.W.3d 458, 461-62 (Tex. Crim. App. 2008); Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985).
In his sole issue, appellant argues that the trial court erred in instructing the jury regarding its "option[s]" during the punishment phase of trial because the charge did not "contain the available punishment option of community supervision," resulting in "egregious harm" to him. In response, the State argues that the trial court's charge to the jury "at punishment did not include an instruction authorizing [it] to recommend community supervision because appellant was not eligible for community supervision."
A person commits the offense of indecency with a child if he engages in sexual contact with a child who is younger than seventeen years old and who is not the person's spouse. TEX. PENAL CODE ANN. § 21.11(a)(1) (Vernon 2011). "[S]exual contact" includes, but is not limited to, the following acts, if committed with the intent to arouse or gratify the sexual desire of any person: any touching by a person, including touching through clothing, of any part of the genitals of a child. Id. § 21.11(c)(1). Indecency with a child is a second degree felony offense andpunishable by imprisonment "for any term of not more than 20 years or less than 2 years" in addition to "a fine not to exceed $10,000." Id. § 12.33 (Vernon 2011).
Jury-recommended community supervision is governed by article 42.12, section 4 of the Texas Code of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. art. 42.12, § 4 (Vernon Supp. 2015). Whether a defendant found guilty of the offense of indecency with a child is eligible for jury-recommended community supervision depends on the child's age at the time the offense was committed. See id. art. 42.12, §§ 3g(a)(1)(C), 4(d)(5). If the child was younger than fourteen years old at the time of the offense, a defendant is categorically ineligible for community supervision. Id.; Reich v. State, No. 05-14-00562-CR, 2015 WL 4505937, at *3...
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