Navarro v. State
| Decision Date | 29 April 2021 |
| Docket Number | NO. 03-19-00279-CR,NO. 03-19-00278-CR,03-19-00278-CR |
| Citation | 623 S.W.3d 97 |
| Parties | Jimmy Urista NAVARRO, Appellant v. The STATE of Texas, Appellee |
| Court | Texas Court of Appeals |
Ashley Knight, 124 W. Beauregard, Suite B, San Angelo, TX 76903, for Appellee.
Connie J. Kelley, 1108 Lavaca, #110-221, Austin, TX 78701, for Appellant.
Before Justices Goodwin, Baker, and Kelly
A jury found appellant Jimmy Urista Navarro guilty of sexual assault of a child and prohibited sexual conduct for sexual abuse perpetrated against his biological daughters when they were teenagers. See Tex. Penal Code §§ 22.011(a)(2)(A), 25.02(a)(1). The jury assessed his punishment at confinement for twenty years in the Texas Department of Criminal Justice for each offense, see id. § 12.33, and the trial court sentenced appellant consistent with the verdicts, ordering the sentences to be served concurrently, see id. § 3.03.
In these appeals, appellant complains about error in the jury charges and asserts that his trial counsel rendered ineffective assistance. Finding no reversible error, we affirm the trial court's judgments of conviction for sexual assault of a child and prohibited sexual conduct. On review of the record, we have found non-reversible error in the trial court's written judgment of conviction for prohibited sexual conduct. We will modify that judgment to correct the error and, as modified, affirm it.
In cause number A-18-0119-SB (appeal number 03-19-00278-CR), appellant was charged with sexual assault of a child for having sexual intercourse with his older daughter when she was sixteen. See Tex. Penal Code § 22.011(a)(2)(A). In cause number A-18-0200-SA (appeal number 03-18-00279-CR), appellant was charged with prohibited sexual conduct for later engaging in deviate sexual intercourse with his younger daughter when she was seventeen. See id. § 25.02(a)(1).
The cases were consolidated for trial. During the State's case in chief in the guilt-innocence phase, appellant's older daughter (OD) and his younger daughter (YD) both testified.1 In addition, two police detectives testified about their investigation of this case, and a forensic interviewer from the children's advocacy center testified about her interviews of YD and her little brother, who was eleven years old when interviewed. Appellant testified on his own behalf, denying that he engaged in any sexual activity with his daughters, and a neighbor of appellant's parents testified that, based on her observations of and interactions with the family, appellant was a "strict father," but she felt that his relationship with his children was "good." During the State's rebuttal, a school records custodian testified, and YD's school attendance records were admitted. In addition, appellant's son testified about appellant's treatment of his children.
The jury heard evidence that appellant, his two daughters, and his son lived together in an apartment in San Angelo. Testimony from all three of appellant's children reflected that appellant was physically abusive toward his children, particularly his daughters. As appellant's fourteen-year-old son explained, appellant would hit and slap them "a lot," striking them "across the face, body, anything." While the abuse happened to him, "it was more against [his] sisters." They would get hit when they got in trouble, when appellant got mad, or "if [appellant] was having a bad day." Testimony also showed that appellant would keep the girls home from school as punishment.2 On several occasions, appellant put YD in his closet for multiple days ("maybe a week," according to her brother), making her stay in there day and night. He pushed his mattress against the door and only let her out to go to the bathroom (at specific times that he set) and, after several days, to get herself food. Appellant was also very controlling of his children, especially his daughters, and tended to isolate them. None of the children could have friends over to the apartment, and they were not allowed to go to friends' houses. Neither of the girls were allowed to wear makeup or style their hair, nor were they allowed to have boyfriends or date. In fact, other than their classmates at school, they were not supposed to talk to boys.
Nineteen-year-old OD described an incident that occurred in July 2015 when she was sixteen years old (the summer before her junior year of high school) and her father had sexual intercourse with her. OD testified that after appellant asked her to scratch his back, under his shirt, which was a common occurrence, she went to her room to lie down on her bed. Appellant followed her into her room and lay down with her on her twin bed, lying with his front to her back as she lay on her side. He asked her if she had had sex before. When she told him "no," he began "touching [her] inappropriately." Appellant started touching her on the chest and then moved slowly down her body. OD said that when he reached her waist, he pulled her pants down. He touched her "down there" "on [her] vagina" with his hand. OD explained that she "just felt him ... and then he put it in me." She clarified that appellant "had put his dick inside [her] vagina" and said that she "remember[ed] just wanting to cry." After appellant finished, "he got off of [her]" and went to his room, and she went to the bathroom. As she cleaned herself up, she "saw blood" and "all kinds of stuff." OD said that she did not know what to do; she "was so scared." When she left the bathroom, appellant called her into his room and made her promise that she would not tell anyone. OD testified that she moved out of the apartment in February 2017 the day she turned eighteen—without telling appellant about her plans because he would have stopped her.
Eighteen-year-old YD testified that in the summer of 2017, when she was seventeen years old, her father came to her room one night while she was in bed. He asked if he could play with her skin and then he started "biting" her skin.3 He began biting the skin on her belly and then "started moving down more." He took off her sweatpants, leaving them on one leg, and bit her thighs and then "moved towards the middle of [her] and then put his mouth on [her]." Appellant then "just started using his fingers and put them inside [her]." YD clarified that appellant put his mouth "on [her] vagina" and confirmed that he "perform[ed] oral sex on [her]." She explained that she "didn't say stop or anything" because she "didn't know how he was going to react" and "we were already so scared of him." She expressed that she "didn't know what to do." After appellant was finished, YD put her pants back on and turned and faced the wall. Her father got on one knee behind her and "had the nerve to ask [her] how it was." YD did not tell anyone what appellant had done to her until she told OD in December of 2017 when they met for lunch and she saw text messages on OD's phone that suggested that appellant had done something similar to OD.
The jury found appellant guilty of both offenses. During the punishment phase, appellant's daughters revealed more of appellant's sexual abuse and violence against them. YD related that appellant had performed oral sex on her twice and both times he put his fingers in her vagina. She said that he would also frequently bite her ear and neck ("intimate bites"), suck on her ear, kiss her with an open mouth and bite her lip, and touch her breast. Once appellant threatened her with his pocket-knife when she did not face the corner during a "time out."4 YD explained that appellant was violent with everyone in the home "whenever they made him mad," although "not really [her] little brother." Appellant would also regularly damage or throw away their possessions. In addition, YD had "a lot of memories" of appellant being violent with her mother before they divorced.
OD disclosed that the sexual-intercourse incident that she described during the guilt-innocence phase was the first instance of sexual abuse and that it happened "pretty often" after that—three or four times a week. She also described the various ways that appellant sexually violated her, saying that in addition to putting his penis in her vagina, he "would finger [her]" and perform oral sex on her and that on one occasion he "tried to stick it inside [her] butt." OD said that appellant never used any sort of protection; she was "always" worried that she would get pregnant. Appellant would pull her hair and slap her and call them "all kinds of messed up names."5 She explained that the physical abuse was "normal" for "[them] growing up." She also described appellant's destruction of their property, saying he would "throw [their] stuff away" and tear up their clothes and shoes with his pocket-knife. At trial, more than one year after they reported appellant's sexual abuse to police, both of appellant's daughters expressed that they were still afraid of him, had nightmares, and had anxiety issues.
The jury also heard from appellant's ex-wife, who described the violence in their relationship, which included appellant choking her, hitting her, tearing up her clothes, and destroying her possessions. She explained that she did not report his abuse because she was scared that he would hurt her since sometimes he threatened to kill her. Appellant's ex-wife said that the abuse and violence happened "a lot" and that their children saw it. Appellant did not testify or present any punishment witnesses.
The jury assessed a twenty-year prison sentence for each offense. The trial court sentenced appellant consistent with the jury's verdicts. In each cause, appellant filed a motion for new trial, which was overruled by operation of law. See Tex. R. App. P. 21.8(c). These appeals followed.
In overlapping points of error, appellant asserts in his first point of error in appeal number 03-19-00278-CR and his third point of error in appeal ...
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