Hernandez v. State
| Decision Date | 22 May 2018 |
| Docket Number | No. 05-17-00560-CR,05-17-00560-CR |
| Parties | JORGE GEOVANY HERNANDEZ, Appellant v. THE STATE OF TEXAS, Appellee |
| Court | Texas Court of Appeals |
On Appeal from the 59th Judicial District Court Grayson County, Texas
Before Justices Lang, Myers, and Stoddart
Opinion by Justice Lang
Jorge Geovany Hernandez appeals the trial court's judgment convicting him of continuous sexual abuse of a young child or children. The jury found Hernandez guilty and the trial court assessed his punishment at life imprisonment. Hernandez raises five issues on appeal, arguing: (1) the evidence is insufficient to support his conviction; (2) he suffered egregious harm when the trial court included an instruction in the jury charge that allowed the jurors to convict him without reaching a unanimous decision; (3) the trial court erred when it denied his motion to suppress his confession; (4) the trial court erred when it overruled his objection to the testimony of the outcry witnesses because the testimony was not reliable and it was not restricted to the alleged offense; and (5) the trial court erred when it overruled his hearsay objections to the testimony of the sexual assault nurse examiner and the redacted sexual assault examination reports. We conclude the evidence is sufficient, Hernandez has not shown he suffered egregious harm, and the trial court did not err. The trial court's judgment is affirmed.
In 2011, C.G.R. and C.N.W. moved to Texas with their mother and older brother. Their mother met Hernandez at work that same year and they started dating about six months later. Although their mother had introduced Hernandez to her children, she did not allow him to be alone with them until they had dated about a year, when she had to work "the graveyard shift" and needed someone to watch her children during the night. At some point, Hernandez started living with them. During this time, the family lived in a house the girls called the "mouse house," but they lived there for only two months before it was destroyed by fire. According to C.G.R., Hernandez began sexually abusing her when they lived in "the mouse house" and her mother was asleep or at work.
After the fire, the family moved to another house that the girls called "the pool house." They lived there for a year. Next, the family moved to a residence the girls called "the Christmas tree house." The last incident occurred on December 29, 2015, when the family lived at "the Christmas tree house." During that incident, Hernandez tried to force C.G.R. to touch his penis, C.G.R. called for C.N.W.'s help, and the girls tried to push Hernandez away. Later that night, C.N.W. told her mother that she "ha[d] something to tell [her], but would tell her in the morning."
On December 30, 2015, the next morning, while her mother was cooking breakfast, C.N.W. approached her mother and told her that Hernandez "pulls his thing out and tried [sic] to make them touch it," rubbing her hands together to demonstrate. The mother called C.G.R. into the room and asked if what her younger sister said was true. C.G.R. said, "Yes," then sat on the floor appearing to "shut down." At that point, their mother called the police.
After the police arrived, the girls' mother took them to the Child Advocacy Center where they were interviewed by Britney Martin, a forensic interviewer. Martin interviewed C.N.W. first. During the interview, C.N.W. told Martin that one night, she had a nightmare and got into bed with her mother and Hernandez. After her mother left for work, Hernandez pulled her closer, she tried to get away, but he was too strong, and "he puts his no-no spot in her butt." C.N.W. told Martin it happened a lot of times, at multiple places, she was eight years of age when it happened, "it hurt like a rock," and when she wiped her bottom afterward there was white and brown "gooey stuff" on the tissue. Also, she told Martin that Hernandez rubs her tummy a lot and goes down too far, which Martin understood to mean he touched her genitals. In addition, C.N.W. stated that she saw Hernandez's "no-no" spot on multiple occasions. C.N.W. clearly told Martin that Hernandez had instructed her not to tell. Next, Martin interviewed C.G.R. During that interview, C.G.R. told Martin that Hernandez "tries to do the nasty" with her, said "the nasty" was his bad spot and her bad spot together, "rubb[ed] her face and stomach putting his bad spot to her bad spot," had "white gooey stuff" coming out of his "bad spot," and caused her hand to touch his genitals. Martin understood C.G.R. to be describing events that occurred over a period of time.
Also, on December 30, 2018, C.G.R. and C.N.W. were examined by Judith Common, a registered nurse and sexual assault nurse examiner (SANE). C.N.W. told Common that Hernandez C.G.R. told Common that, the night before, Hernandez grabbed her and tried to pull out his "bad spot," she told him "no" two or three times, he touched his "no-no" on her stomach, she called her sister for help, Hernandez did "the nasty" before, and the first time he did it she was seven years of age and in the second grade. Common did not observe any trauma or abnormalities to the girls' genital or anal areas, but stated that this is not uncommon as those areas heal quickly.
In addition, on December 30, 2015, Hernandez was arrested. Before he was interviewed, Officer Jose Cuellar read him the Miranda warnings in Spanish. Detective John Watt interviewed Hernandez with Officer Cuellar interpreting. During the interview, Hernandez initially denied any inappropriate conduct and, at times, accused the children of lying. However, during the course of the interview, he first admitted to inappropriate conduct with C.G.R. and then, eventually, he also admitted to inappropriate conduct with C.N.W. With respect to C.G.R., Hernandez compared her to a woman, claimed that "she was always trying to find a way to touch and seduce [him]," admitted that C.G.R. had touched his penis about three times and that he penetrated her vagina with his hands, confirmed the grabbing incident where C.N.W. tried to help C.G.R. push him away on December 29, 2015, stated he touched her like you would touch a woman, corroborated that he masturbated and ejaculated in front of her, and related that he touched her private part about ten times, the first time being about a year ago. With respect to C.N.W., Hernandez admitted that one time he grabbed her from behind like a man would grab a woman, "[he] stuck [his penis] inside [her butt]," and "she said it was hurting." Also, Hernandez indicated to Detective Watt that he "wanted help for this."
Hernandez was indicted for continuous sexual abuse of a young child or children. Before trial, Hernandez filed a motion to suppress his oral confession to the police, arguing his statement was involuntary. The trial court denied the motion to suppress and signed written findings of fact and conclusions of law. The jury found Hernandez guilty and the trial court assessed his punishment at life imprisonment.
In issue one, Hernandez argues the evidence is insufficient to support his conviction. He claims that although the girls testified to sexual abuse during a thirty-day period, there was no independent evidence presented showing he sexually abused them during a period that was greaterthan thirty days. He argues that the only evidence concerning the timing and locations of the abuse were vague statements and tying the events of sexual abuse to a house served no purpose "as the end of a stay at one house was immediately followed by the beginning of a stay at the next." The State responds that, although the children could not testify to specific dates, they were able to identify the three homes they lived in and their mother was able to testify when they lived in those homes. Also, the State argues Hernandez admitted that he first touched C.G.R. approximately a year before his interview with the police.
When reviewing the sufficiency of the evidence, an appellate court considers all of the evidence in the light most favorable to the verdict to determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); State v. Bolles, 541 S.W.3d 128, 133-34 (Tex. Crim. App. 2017); Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010) (plurality op.). An appellate court is required to defer to the jury's credibility and weight determinations because the jury is the sole judge of the witnesses' credibility and the weight to be given to their testimony. See Jackson, 443 U.S. at 319, 326; Bohannan v. State, No. PD-0347-15, 2017 WL 5622933, at *9 (Tex. Crim. App. Nov. 22, 2017); Brooks, 323 S.W.3d at 899. All evidence, whether properly or improperly admitted, will be considered when reviewing the sufficiency of the evidence. See McDaniel v. Brown, 558 U.S. 120 (2010) (per curiam); Lockhart v. Nelson, 488 U.S. 33, 41-42 (1988); Jackson, 443 U.S. at 319.
A person commits the offense of continuous sexual abuse of a young child or children if, during a period that is thirty or more days in duration, he commits two or more acts of sexual abuse and, at the time of the commission of each act, he is seventeen years of age or older and the victim is a child younger than fourteen years of age. See TEX. PENAL CODE ANN. § 21.02(b) (West Supp.2017); Garner v. State, 523 S.W.3d 266, 271 (Tex. App.-Dallas 2017, no pet.). Although the exact dates of the abuse need not be proven, the offense requires proof that two or more acts of sexual abuse occurred during a period of thirty days or more. See PENAL § 21.02(d); Garner, 523 S.W.3d at 271. However, the statute does not...
To continue reading
Request your trial