Moreno v. State

Docket Number13-22-00267-CR
Decision Date03 August 2023
PartiesJORGE ALI MORENO, Appellant, v. THE STATE OF TEXAS, Appellee.
CourtTexas Court of Appeals

Do not publish. Tex.R.App.P. 47.2(b).

On appeal from the 370th District Court of Hidalgo County Texas.

Before Chief Justice Contreras and Justices Benavides and Longoria

MEMORANDUM OPINION

GINA M. BENAVIDES JUSTICE

A jury convicted appellant Jorge Ali Moreno of continuous sexual abuse of a young child, a first-degree felony, and the trial court sentenced Moreno to forty years' imprisonment. See Tex. Penal Code Ann. § 21.02. By his first two issues, Moreno contends that the evidence was insufficient to support his conviction under (1) the corpus delicti doctrine, and (2) the Jackson v Virginia legal-sufficiency standard. By his third issue Moreno complains that the trial court erred in sustaining the State's objection to certain evidence Moreno sought to introduce. Finally, Moreno submits that if the aforementioned errors were individually harmless, then the cumulative effect of these errors was nonetheless harmful. We affirm.

I. Background

In 2018, Moreno was indicted for continuous sexual abuse of a child under the age of fourteen for allegedly committing two or more acts of sexual abuse against Stephanie[1]during a period that began on August 29, 2011, and ended on December 30, 2012.[2] The guilt-innocence phase of the trial began on April 5, 2022, and although the trial spanned several days and included testimony from fifteen witnesses, we highlight only the evidence that is necessary to justify our disposition.

Stephanie, twenty years old at the time of trial, testified that she was born in the United States, but her family moved to Mexico when she was five years old. There was turmoil between her parents, and after living in Mexico for several years, Stephanie's mother decided to divorce her father and move to the United States with Stephanie and her two younger siblings. With the assistance of family friends, nine-year-old Stephanie and her five-year-old sister, who was also a United States citizen, crossed the border first because her mother and brother could not gain lawful entry into the country.

After entering the United States in August of 2011, Stephanie and her sister were taken to stay with Moreno, who was residing at a motel in McAllen, Texas. Stephanie and Moreno were related because her aunt had married Moreno's uncle, and the plan was for Stephanie and her sister to stay with Moreno temporarily until Stephanie's mother and brother could join them in the United States. The motel room contained a single king-size bed, a sofa, and a beanbag chair, among other furniture.

Stephanie testified that initially she felt comfortable with Moreno, but at the end of the first week, an incident occurred that changed her perception of him. She and her sister were sleeping in the bed with the lights off when she awoke to the feeling of Moreno, who normally slept on the couch or the beanbag chair, "getting in the bed." Stephanie turned on the light and noticed that Moreno was positioning himself between her sister's legs. Stephanie asked Moreno, "What are you doing?" Moreno responded, "It's either her or you."

Moreno then walked over to Stephanie's side of the bed, got down on his knees, flipped Stephanie on her back, took her underwear off, placed her legs over his shoulders, and began "fingering" her. When asked to explain what she meant by "fingering," Stephanie responded, "His hands were inside my vagina." After Moreno stopped, "he just got up and left to the restroom."

Stephanie said a second incident occurred fifteen days later after her mother and brother had arrived. The five of them were living together at the motel, and Stephanie's mother and brother left the room to get groceries. Stephanie's sister was in the shower, and Moreno began trying to kiss Stephanie. He picked her up, carried her to the floor, and placed the beanbag chair on top of her, using it to pin her to the floor while he "fingered" her. At one point, he stopped to ask Stephanie's sister how much longer she would be in the shower and then resumed "fingering" Stephanie.

Stephanie described a third incident that was similar to the first incident, except Moreno used his tongue instead of his fingers. Moreno placed her legs on his shoulders and "was just using his tongue on [her] vagina lips." Stephanie initially said the third incident happened "later on," after they moved out of the motel. Later during her testimony, though, she said this incident actually happened on the first night her mother arrived, while they were still living at the motel.

Stephanie acknowledged that she gets the incidents "mixed up." For example, she told an interviewer at the Child Advocacy Center (CAC) in 2018 that the first incident involved Moreno's tongue rather than his fingers. She explained, "The way I have the incidents in my head-I don't have them in order, so I-I don't know when he did what." However, she also testified about a fourth incident, saying this is the incident that she "remember[s] the clearest."

It occurred in "December" when she "was still nine." Stephanie and the rest of her family had moved out of the motel and into a house. Moreno came over to visit one evening, and he and Stephanie's mother were hanging out drinking beer. Later that night, Stephanie awoke to Moreno trying to French kiss her. Stephanie resisted by keeping her mouth closed. At some point, Moreno got up to go to the restroom, and Stephanie locked the door to her bedroom and went back to sleep.

When first recounting this incident on the witness stand, Stephanie could not recall if Moreno touched her in any other way. Asked whether she previously reported during the interview at the CAC that Moreno touched her in her vaginal area, Stephanie responded, "I don't remember."

During a recess, Stephanie refreshed her memory by reviewing her forensic interview at the CAC and another interview with the Texas Department of Family and Protective Services. She agreed that her memory of the events was better in 2018 when she gave those interviews. Stephanie now recalled that during the December incident, Moreno touched her vagina over her pajama pants. Asked to describe the touching, Stephanie said, "He was just rubbing, with his hand, over my vagina while I had my PJ pants [on]." She said it was not like the other incidents when Moreno placed "his bare hand inside my vagina."

The jury found Moreno guilty of continuous sexual abuse of a young child, and this appeal ensued.

II. The Corpus Delicti Doctrine

By his first issue, Moreno contends that the State failed to prove the corpus delicti of continuous sexual abuse of a child because Stephanie's testimony was unreliable and there was no physical evidence demonstrating the commission of the offense. The corpus delicti doctrine is a common-law rule "requiring corroboration of a defendant's extrajudicial confession." Carrizales v. State, 414 S.W.3d 737, 741 (Tex. Crim. App. 2013). The rule was designed to guard against a false confession where no crime has actually been committed. Id. at 743 n.22 (citing People v. LaRosa, 293 P.3d 567, 573-74 (Colo. 2013)). The "doctrine requires that evidence independent of a defendant's extrajudicial confession show that the 'essential nature' of the charged crime was committed by someone." Hacker v. State, 389 S.W.3d 860, 866 (Tex. Crim. App. 2013) (quoting Bible v. State, 162 S.W.3d 234, 246 (Tex. Crim. App. 2005)). However, as the State correctly points out, "[b]ecause this case does not involve a defendant's extrajudicial confession, there is neither need nor purpose to refer to the corpus-delicti doctrine." Carrizales, 414 S.W.3d at 744. Moreno's first issue is overruled.

III. Sufficiency of the Evidence

By his second issue, Moreno argues that the evidence was legally insufficient to support his conviction.[3]

A. Standard of Review & Applicable Law

In a legal sufficiency review, "we consider all the evidence in the light most favorable to the verdict and determine whether, based on that evidence and reasonable inferences therefrom, a rational juror could have found the essential elements of the crime beyond a reasonable doubt." Hammack v. State, 622 S.W.3d 910, 914 (Tex. Crim. App. 2021) (citing Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007)). Because the jury is the trier of fact, we "must defer to the jury's credibility and weight determinations." Id. This includes resolving conflicts in the testimony. Carter v. State, 620 S.W.3d 147, 149 (Tex. Crim. App. 2021) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)).

B. Analysis

Rather than contesting any particular element of the offense, Moreno generally attacks Stephanie's credibility and points to a lack of physical evidence to corroborate her testimony. According to Moreno, Stephanie's testimony "was unsubstantiated, unreliable, and inconsistent; the physical evidence was nonexistent."

It is well-established, however, that the jury is the "sole judge" of a witness's credibility and the weight to be given to her testimony. Hammack, 622 S.W.3d at 914 (quoting Garcia v. State, 367 S.W.3d 683, 687 (Tex. Crim. App. 2012)). We may not, as Moreno implicitly suggests, substitute our judgment for that of the factfinder. Thornton v. State, 425 S.W.3d 289, 303 (Tex. Crim. App. 2014). And whatever Moreno may think of Stephanie's testimony, the jury clearly found her credible. See Hernandez v. State, 610 S.W.3d 106, 111 (Tex. App.-Houston [14th Dist.] 2020, pet. ref'd) (noting that in a sufficiency review, "we presume that the jury credited the complainant's testimony").

Moreover "[t]he uncorroborated testimony of a child victim is...

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