Guzman v. State
| Decision Date | 26 November 2019 |
| Docket Number | NO. 01-18-00442-CR,01-18-00442-CR |
| Citation | 591 S.W.3d 713 |
| Parties | Otoniel GUZMAN, Appellant v. The STATE of Texas, Appellee |
| Court | Texas Court of Appeals |
Joseph Wilson Spence, John Meskunas, for Appellee.
Danny D. Burns, Tarrant, George B. Mackey, Fort Worth, for Appellant.
Otoniel Guzman, pro se.
Panel consists of Chief Justice Radack and Justices Keyes and Landau.
A jury convicted appellant, Otoniel Guzman, of the first-degree felony offense of continuous sexual abuse of a young child and assessed his punishment at thirty years' confinement.1 In six issues, appellant contends that the trial court erred by (1) allowing the testimony of the complainant's grandmother as an outcry witness; (2) overruling his motion for mistrial after the complainant's grandmother commented on his right to remain silent; (3) denying his request for a writ of attachment for a prospective juror who did not appear for voir dire; (4) allowing him to be tried under a statute that is unconstitutional because it does not require an unanimous jury to convict a defendant for the offense of continuous sexual abuse; and (5) and (6) refusing his requested jury instruction on the lesser-included offenses of indecency with a child by exposure and indecent exposure.
We affirm.
Appellant and Ninfa Castillo were married. Castillo has three adult daughters from a previous marriage, and her oldest daughter has three children including Jessica,2 the complainant, who was born in March 2001, and Jessica's two younger brothers. Castillo and appellant obtained custody of Jessica and her siblings when Jessica was around six years old. Castillo, appellant, Jessica, and her younger brothers all lived together in a mobile home in Arlington, Texas.3 Jessica had her own bedroom. She was seventeen years old at the time of trial.
Appellant is not biologically related to Jessica or her brothers. Castillo testified that appellant favored Jessica over her brothers and that he would take her shopping and buy her things, but he would not do so for her brothers. According to Castillo, appellant would spoil Jessica, including buying her expensive phones and giving her significantly more money at Christmas than he would give to her brothers. Appellant would allow Jessica's brothers to spend the night with friends, but he would rarely let Jessica do so with her friends. During summer vacations, Jessica and her brothers would spend around two months in San Antonio with their father's sister. Castillo testified that appellant did not mind Jessica's brothers being away from home for that length of time, but he did not want Jessica to be gone for so long, and he would offer to drive to San Antonio to bring her home. Castillo stated that she spoke with appellant about his preferential treatment of Jessica, but appellant denied that anything untoward was happening with Jessica. Castillo had no indication that an inappropriate relationship existed between appellant and Jessica.
Appellant and Castillo had different work schedules. Appellant worked in construction and was frequently out of town on various jobs. When he was in Arlington, he typically worked from around 7:00 a.m. until 5:30 p.m. Castillo, meanwhile, worked the night shift at PolyAmerica and typically worked from 5:30 p.m. until 5:30 a.m., six days per week. Appellant would supervise the children while Castillo was at work.
On September 27, 2015, Castillo arrived home from work around 6:00 a.m. Appellant was asleep in their bedroom, and she was surprised to see him because he had been working out of town and was not supposed to be home until the following weekend. Castillo went to sleep on the living room sofa and woke up around 10:00 a.m. She saw appellant leave the house, and she went back to sleep. She called appellant about an hour later, and appellant said that he was not coming home anymore. He told Castillo, "I'm not returning home before you lock me up." Castillo did not know what appellant meant by this, and appellant refused to explain.
While Castillo was still sitting on the sofa, Jessica walked into the living room, crying. When Castillo asked her why she was crying, Jessica told her that appellant had tried to touch her vagina and her breasts the previous evening. Jessica told Castillo that this happened in her bedroom while Castillo was at work. She tried to kick appellant away and she was screaming, and appellant left her bedroom but later came back and "tried to do it again." Castillo testified that this allegation surprised her, and she asked Jessica what she wanted to do. Jessica responded that she wanted to file charges, and Castillo took her to the Arlington Police Department.
Castillo testified that, after this incident, appellant no longer lived with her and the children. Instead, he lived at an address in Alvarado, Texas. Castillo informed the police of this address, but appellant was not arrested until January 2017, more than fifteen months after Jessica's outcry. Castillo occasionally saw appellant after the incident, usually at convenience stores where appellant would give Castillo money to help with bills, and she did at one point invite him back to their home in Arlington. Castillo stated that she invited appellant to the house "to give him a chance to explain what had happened, what he did to my granddaughter." She stated, "He never say [sic] anything to me—" and defense counsel objected, arguing that this testimony improperly commented on appellant's right to remain silent. The trial court instructed the jury to disregard Castillo's statement, but it denied defense counsel's request for a mistrial.
Jessica testified that appellant began touching her inappropriately when she was in fifth grade, around 2011 or 2012. Appellant would come into her bedroom while she was asleep—and while Castillo was at work—and touch her breasts and her vagina with his fingers. This happened around two or three times per week during the weeks appellant was working in Arlington, and this went on for around five years. Jessica also testified that appellant would put his mouth on her vagina and he would make her touch his penis with her hand. When Jessica was in seventh grade, he made her watch pornography on his phone, but this was the only occasion that he did this.
With respect to the incident on September 26 and 27, 2015, which occurred when she was fourteen years old, Jessica testified that appellant "came into [her] room, did the same things as he would any other night." On request by the State, she clarified:
Doing things with my vagina, my breasts, using his mouth. And that night—I got tired of it that night. I was trying to pull away, and I started to wake up, and I guess he noticed that I started crying. He walked away.
Appellant came back into her bedroom that evening, but Jessica pretended to be asleep, and he did not do anything more to her. She further testified, "I really had never cried any of the other nights, and when I cried this night, that's what made me feel like it just needs to stop already." She stated that she was scared to tell anyone about the abuse because she knew that appellant helped her family financially and "was a big part of our lives." Jessica decided to tell Castillo what had been happening, but she did not give Castillo many details.
Jessica testified that she and her family continued to see appellant after she reported the abuse to the police, stating, "I was okay with [seeing him] because I was used to facing everything throughout the years." She stated that she still loved him and still wanted to see him "[b]ecause I knew he was my grandpa no matter through all the things."
On cross-examination, Jessica had the following exchange with defense counsel:
Alexis Chase, a forensic interviewer with Alliance for Children, conducted Jessica's forensic interview on October 12, 2015. Chase served as an outcry witness for all instances of abuse that Jessica disclosed, with the exception of the events of September 26 and 27, 2015, for which Castillo served as the outcry witness. Chase described Jessica as quiet, hesitant, and emotional during the interview. Jessica told Chase that her grandfather—appellant—began touching her vagina with his fingers when she was in fifth grade, and this continued approximately twice per week until she was fourteen years old. Jessica told Chase that the abuse would occur at night, in her bedroom, and she would be lying on her bed. Chase testified that Jessica disclosed other acts of sexual abuse that appellant would perform on her, including touching her breasts, putting his mouth on her vagina, and making her touch his penis with her hand. Jessica told Chase that all of these actions occurred more than one time.4
Appellant testified on his own behalf. He denied ever touching Jessica inappropriately. Appellant testified that, on the morning of September 27, 2015, he had a heated argument with Castillo after she refused to allow appellant to take the children to Oklahoma with a friend and his family, and he expressed his intention to seek a divorce from Castillo. After Castillo attempted to escalate the argument into a physical fight, appellant left the house without any of his clothes or other belongings. He stated that he learned of Jessica's allegations against him approximately one week later and that the allegations shocked him. He testified that, after the allegations, when he began living in Alvarado, Castillo, Jessica, and Jessica's younger brothers...
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