Hernandez v. State

• Decision Date: 07 May 2014
• Docket Number: No. 11–11–00328–CR.,11–11–00328–CR.
• Citation: 426 S.W.3d 820
• Parties: Daniel HERNANDEZ, Appellant v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

426 S.W.3d 820

Daniel HERNANDEZ, Appellant

v.The STATE of Texas, Appellee.

No. 11–11–00328–CR.

Court of Appeals of Texas,

Eastland.

Feb. 27, 2014.

Rehearing Overruled and Motion to Publish Granted March 20, 2014.

Discretionary Review Refused May 7, 2014.

Jenny L. Henley, Stan Brown, Abilene, for Appellant.

James Eidson, District Attorney, Patricia Dyer, Assistant, Criminal District Attorney's Office, Abilene, for Appellee.

Panel consists of: WRIGHT, C.J., WILLSON, J., and BAILEY, J.

MEMORANDUM OPINION

JOHN M. BAILEY, Justice.

The jury convicted Daniel Hernandez of aggravated sexual assault and assessed his punishment at confinement in the Institutional Division of the Texas Department of Criminal Justice for a term of ten years. The jury additionally imposed a fine of $5,000. Appellant challenges his conviction in three issues. We affirm.

Background Facts

Abilene Police Officer Patrick Perez received a report on March 13, 2006, from Gloria Hermosillo that her physically disabled adult son, PSEUMT,¹ had been sexually assaulted. Officer Perez met with Hermosillo and PSEUMT on that date. PSEUMT told him that he had been “anally raped” by Appellant. Officer Perez turned the case over to Detective Thomas Valdez.

Detective Valdez met with PSEUMT and Hermosillo on March 14, 2006. PSEUMT informed Detective Valdez that Appellant sexually assaulted him at his mother's apartment in Abilene in late December 2005. Both Officer Perez and Detective Valdez testified that PSEUMT was crying and upset when he reported the assault to them. Detective Valdez further testified that PSEUMT sought medical treatment on December 26, 2005, for rectal bleeding as a result of the assault.

Detective Valdez contacted Appellant, and Appellant voluntarily came in for an interview. Appellant told Detective Valdez that he was homosexual and that he and PSEUMT engaged in consensual anal sex at PSEUMT's request. Appellant alleged that the act occurred after he and Hermosillo had been “clubbing.” Appellant denied prior sexual conduct with PSEUMT during his meeting with Detective Valdez.

Hermosillo testified that PSEUMT is physically disabled as a result of a car accident and that he cannot walk without the aid of crutches.² PSEUMT resides with her because he cannot support himself financially. Hermosillo worked with Appellant several years earlier. She testified that they had been friends for a long time and that he “was like [a] brother” to her. Hermosillo further testified that Appellant and PSEUMT were not friends and did not visit or socialize. She also testified that Appellant is homosexual.

PSEUMT did not tell Hermosillo about the alleged assault until a few months after it happened. He told her about it when she told him that she was going to ask Appellant for some money for cigarettes. PSEUMT told her that he did not want her to ask Appellant for anything because Appellant sexually assaulted him the last time they were together.

PSEUMT was nineteen years old at the time of the assault. He testified that he is paralyzed from the chest down as a result of a car accident in 2002. He also testified that he cannot stand or walk without crutches and that he is impotent. He had known Appellant for thirteen years because Appellant and his mother socialized, but he did not socialize with Appellant. PSEUMT testified he knew Appellant was homosexual. PSEUMT stated that he is heterosexual.

PSEUMT testified that Appellant “anally raped” him. The incident occurred after Appellant entered PSEUMT's bedroom on multiple occasions after returning to Hermosillo's apartment. PSEUMT testified that he was asleep when Appellant came into his room on a previous occasion and asked PSEUMT, “Have you ever thought about being gay?” Appellant also rubbed his genitals (with his pants still on) against PSEUMT's arm on a previous visit to PSEUMT's room. PSEUMT responded by calling for Hermosillo to get Appellant out of his room. Appellant told Hermosillo that he was “just playing” with PSEUMT.

The alleged assault occurred during a subsequent visit by Appellant to PSEUMT's room. PSEUMT testified that he tried to leave his room on this occasion but that he was unable to do so. Appellant put PSEUMT in a headlock, causing him to pass out. PSEUMT attempted to defend himself but he was unable to use his legs to repel Appellant. PSEUMT eventually awoke with Appellant on top of him penetrating his anus with Appellant's penis. PSEUMT testified that he was sick the next day and that he eventually went to the hospital because of anal bleeding. He further testified that it took him two weeks to recover from the physical trauma he suffered as a result of the sexual assault.

Appellant testified on his own behalf during the guilt/innocence phase. During his testimony, he acknowledged that he was homosexual and that PSEUMT was aware of it. Appellant testified that PSEUMT propositioned him and put his hands on Appellant on the night the sexual encounter occurred. He also testified that PSEUMT was watching a pornographic film and that PSEUMT had an erection at the time. Appellant testified that he and PSEUMT engaged in consensual sex. On cross-examination, Appellant testified that PSEUMT may have fabricated the allegation against him because Appellant stopped having sex with him.

Issues

In his first issue, Appellant challenges the sufficiency of the evidence. Appellant's second issue concerns the admission of extraneous conduct evidence. In his third issue, Appellant alleges that his trial counsel was ineffective by failing to secure the attendance of a material witness.

Sufficiency of the Evidence

We review a sufficiency of the evidence issue, regardless of whether it is denominated as a legal or factual claim, under the standard of review set forth in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Brooks v. State, 323 S.W.3d 893, 912 (Tex.Crim.App.2010); Polk v. State, 337 S.W.3d 286, 288–89 (Tex.App.-Eastland 2010, pet. ref'd). Under the Jackson standard, we review all of the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319, 99 S.Ct. 2781;Isassi v. State, 330 S.W.3d 633, 638 (Tex.Crim.App.2010). In conducting a sufficiency review, we defer to the jury's role as the sole judge of the witnesses' credibility and the weight their testimony is to be afforded. Brooks, 323 S.W.3d at 899. This standard accounts for the factfinder's duty to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319, 99 S.Ct. 2781;Clayton v. State, 235 S.W.3d 772, 778 (Tex.Crim.App.2007). When the record supports conflicting inferences, we presume that the factfinder resolved the conflicts in favor of the prosecution and defer to that determination. Jackson, 443 U.S. at 326, 99 S.Ct. 2781;Clayton, 235 S.W.3d at 778.

The indictment charged Appellant with “intentionally and knowingly sexually [assaulting] PSEUMT, a disabled individual, by causing his male sexual organ to penetrate the anus of the said PSEUMT, without the said PSEUMT's consent, and the said [Appellant] compelled the said PSEUMT to submit and participate by the use of physical force and violence.” SeeTex. Penal Code Ann. § 22.021 (West Supp.2013). As set out above, PSEUMT testified that Appellant engaged in the conduct alleged in the indictment. Appellant contends that PSEUMT's testimony “was simply not conclusive enough” to permit the jury to determine that Appellant engaged in the charged conduct. He further contends that PSEUMT's version of the encounter was undermined by his belatedoutcry of a few months, the fact that his mother did not initially believe his allegation, and the lack of corroborating evidence.

PSEUMT and Appellant offered contradictory versions of what transpired. As noted previously, we presume that the jury resolved any conflicts in the evidence in favor of the prosecution, and we defer to that determination in conducting our review of the evidence. The jury's determination to accept PSEUMT's version of the events was a decision based inherently on its evaluation of the credibility of the witnesses, a decision that is within the jury's sole province to resolve.

PSEUMT's outcry a few months after the alleged assault satisfied the one-year statutory requirement for adult victims of sexual assault. Tex. Code Crim. Proc. Ann. art. 38.07(a) (West Supp.2013) (A conviction for aggravated sexual assault “is supportable on the uncorroborated testimony of the victim of the sexual offense if the victim informed any person, other than the defendant, of the alleged offense within one year after the date on which the offense is alleged to have occurred.”). The fact that PSEUMT's mother initially did not believe him is not surprising given the extreme nature of the conduct alleged and her close relationship to Appellant. Viewing the evidence in the light most favorable to the verdict, we conclude that a rational trier of fact could have found that Appellant sexually assaulted PSEUMT as alleged in the indictment. Appellant's first issue is overruled.

Extraneous Conduct Evidence

Appellant asserts in his second issue that the trial court erred in permitting the State to offer testimony from PSEUMT during its rebuttal case that Appellant sexually assaulted him on at least four occasions when he was twelve or thirteen. Appellant asserts that this evidence was not admissible under Tex.R. Evid. 404(b).

The State attempted to offer evidence during its case-in-chief of instances where Appellant sexually assaulted PSEUMT when PSEUMT was twelve or thirteen. The State asserted that this evidence was being offered to show Appellant's state of mind at the time of the alleged assault, to show Appellant's opportunity because of PSEUMT's physical disability to commit an act that h...