Ozuna v. State

• Decision Date: 10 August 2006
• Docket Number: No. 13-05-737-CR.,13-05-737-CR.
• Citation: 199 S.W.3d 601
• Parties: Eloy OZUNA, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

199 S.W.3d 601

Eloy OZUNA, Appellant, v. The STATE of Texas, Appellee.

No. 13-05-737-CR.

Court of Appeals of Texas, Corpus Christi-Edinburg.

August 10, 2006.

COPYRIGHT MATERIAL OMITTED

Noel Gonzalez, The Law Office of Noel Gonzalez, Pharr, for appellant.

David Nowlin, Asst. Crim. Dist. Atty., Rene A. Guerra, Crim. Dist. Atty., Edinburg, for appellee.

Before Chief Justice VALDEZ and Justices YAÑEZ and CASTILLO.

OPINION

Opinion by Justice CASTILLO.

A jury convicted appellant Eloy Ozuna of aggravated sexual assault of a child¹ and assessed punishment at ten years' confinement in the Institutional Division of the Texas Department of Criminal Justice and a $10,000 fine. The incarceration portion of the sentence was suspended for a term of ten years community supervision. Ozuna appeals. We affirm.

I. BACKGROUND

The child, M.G., described as a hyperactive child who communicated by using short sentences and demonstrating, repeated an outcry statement to his maternal grandmother, a police officer, and an intake worker with the Texas Child Protective Services Department.² In his outcry, M.G. stated that Ozuna molested him by digital penetration of the anus. On physical examination of the child, a forensic nurse examiner did not rule out sexual abuse.

II. POINTS OF ERROR PRESENTED

By three points of error, Ozuna argues the following: (1) the trial court abused its discretion in finding M.G. competent to testify; (2) he was denied effective assistance of counsel; and (3) the evidence is legally and factually insufficient to support the conviction.

III. SUFFICIENCY OF THE EVIDENCE

By his third point of error, Ozuna asserts that the evidence was legally and factually insufficient to prove the essential elements of the offense beyond a reasonable doubt. In particular, Ozuna maintains that the evidence to prove he caused his finger to penetrate the anus is so weak that it cannot sustain the finding of guilt. He focuses his argument on M.G.'s inability to communicate, his failure to outcry to the forensic interviewer and the examining nurse, and the absence of physical evidence. The State responds that M.G.'s testimony alone is sufficient to sustain the conviction and corroborating evidence adduced at trial as to his outcry also proved the essential elements of the offense.

A. Legal Sufficiency Standard of Review

A legal-sufficiency challenge calls on us to review the relevant evidence in the light most favorable to the verdict, and then determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Escamilla v. State, 143 S.W.3d 814, 817 (Tex. Crim.App.2004) (citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)); Swearingen v. State, 101 S.W.3d 89, 95 (Tex.Crim.App.2003) (en banc); Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App.2000) (en banc). This standard is meant to give "full play to the [jury's] responsibility fairly" to "draw reasonable inferences from basic facts to ultimate facts." Sanders v. State, 119 S.W.3d 818, 820 (Tex.Crim.App.2003) (quoting Jackson, 443 U.S. at 319, 99 S.Ct. 2781). We consider all the evidence that sustains the conviction, whether properly or improperly admitted. Conner v. State, 67 S.W.3d 192, 197 (Tex.Crim.App.2001) (citing Garcia v. State, 919 S.W.2d 370, 378 (Tex.Crim.App.1994) (en banc)). Similarly, we consider all the evidence that sustains the conviction, whether submitted by the prosecution or the defense, in determining the legal sufficiency of the evidence. King v. State, 29 S.W.3d 556, 562 (Tex.Crim. App.2000) (en banc); Cook v. State, 858 S.W.2d 467, 470 (Tex.Crim.App.1993) (en banc). In this review, we are not to reevaluate the weight and credibility of the evidence, but rather, we act only to ensure that the jury reached a rational decision. Muniz v. State, 851 S.W.2d 238, 246 (Tex. Crim.App.1993) (en banc).

The legal sufficiency of the evidence is measured against the elements of the offense as defined by a hypothetically correct jury charge for the case.³ Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App. 1997). This standard of legal sufficiency ensures that a judgment of acquittal is reserved for those situations in which there is an actual failure in the State's proof of the crime, rather than a mere error in the jury charge submitted. Id. We then determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson, 443 U.S. at 319, 99 S.Ct. 2781; Johnson, 23 S.W.3d at 7.

If we reverse a criminal case for legal insufficiency, we reform the judgment of conviction to reflect conviction for a lesser offense only if a jury charge on the lesser offense was either submitted or requested, but denied. Collier v. State, 999 S.W.2d 779, 782 (Tex.Crim.App.1999). Otherwise, we vacate the judgment of conviction for legal insufficiency and order a judgment of acquittal. Swearingen, 101 S.W.3d at 95.

B. Factual Sufficiency Standard and Scope of Review

A factual-sufficiency review begins with the presumption that the evidence is legally sufficient under Jackson, 443 U.S. at 319, 99 S.Ct. 2781. Conner, 67 S.W.3d at 198; Wardrip v. State, 56 S.W.3d 588, 591 n. 3 (Tex.Crim.App.2001). This Court measures the factual sufficiency of the evidence in this case against a hypothetically correct jury charge. Adi v. State, 94 S.W.3d 124, 131 (Tex.App.-Corpus Christi 2002, pet. ref'd); see Malik, 953 S.W.2d at 240.

We are constitutionally empowered to review the judgment of the trial court to determine the factual sufficiency of the evidence used to establish the elements of the charged offense. Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex.Crim.App.2004); Johnson, 23 S.W.3d at 6. In determining the factual sufficiency of the elements of the offense, we view all the evidence neutrally, not through the prism of "the light most favorable to the prosecution." Johnson, 23 S.W.3d at 6-7 (citing Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996)). We set aside a finding of guilt only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Johnson, 23 S.W.3d at 7. A clearly wrong and unjust finding of guilt is "manifestly unjust," "shocks the conscience," or "clearly demonstrates bias." Prible v. State, 175 S.W.3d 724, 731 (Tex.Crim.App.2005) (quoting Santellan v. State, 939 S.W.2d 155, 164 (Tex.Crim.App. 1997)); Rojas v. State, 986 S.W.2d 241, 247 (Tex.Crim.App.1998).

In conducting a factual sufficiency review, we review the fact finder's weighing of the evidence. Johnson, 23 S.W.3d at 7 (citing Clewis, 922 S.W.2d at 133). We review the evidence that tends to prove a material disputed fact and compare it with evidence that tends to disprove it. Johnson, 23 S.W.3d at 7. We are authorized to disagree with the fact finder's determination. Id. However, we approach a factual-sufficiency review with appropriate deference to avoid substituting our judgment for that of the fact finder. Id. Our evaluation should not intrude substantially on the fact finder's role as the sole judge of the weight and credibility given to witness testimony. Id. Thus, in performing a factual-sufficiency review, we are mindful that the fact finder is the exclusive judge of the credibility of witnesses and the weight to be given testimony. TEX.CODE CRIM. PROC. ANN. art. 38.04 (Vernon 1979); Adelman v. State, 828 S.W.2d 418, 423 (Tex.Crim.App. 1992); Butts v. State, 835 S.W.2d 147, 151 (Tex.App.-Corpus. Christi 1992, pet. ref'd).

The fact finder may believe some witnesses and refuse to believe others. Esquivel v. State, 506 S.W.2d 613, 615 (Tex. Crim.App.1974). It also may accept portions of a witness's testimony and reject others. Johnson, 23 S.W.3d at 7; Butts, 835 S.W.2d at 151. We always remain aware of the fact finder's role and unique position, a position we are unable to occupy. Johnson, 23 S.W.3d at 9.

Exercise of our authority to disagree with the fact finder's determination is appropriate only when the record clearly indicates our intervention is necessary to stop manifest injustice. Id. When an appellant challenges the factual sufficiency of the elements of the offense, we ask whether "a neutral review of all the evidence . . . demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof." Zuliani v. State, 97 S.W.3d 589, 593-94 (Tex.Crim.App.2003) (quoting Johnson, 23 S.W.3d at 11); see Swearingen, 101 S.W.3d at 97.

In conducting a factual sufficiency review in an opinion, we "show our work" when we consider and address the appellant's main argument for urging insufficiency of the evidence. Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App.2003); Johnson, 23 S.W.3d at 9; Manning v. State, 112 S.W.3d 740, 747 (Tex.App.Houston [14th Dist.] 2003, pet. denied); see TEX.R.APP. P. 47.1. This practice benefits the parties, maintains the integrity of the justice system, and improves appellate practice. Sims, 99 S.W.3d at 603; Manning, 112 S.W.3d at 747. If we reverse a criminal case for factual insufficiency, we vacate the judgment of conviction and remand for a new trial. See Clewis, 922 S.W.2d at 133-34; see also Swearingen, 101 S.W.3d at 97.

C. Testimony of a Child Sex Abuse Victim

The testimony of a child sexual abuse victim alone is sufficient to support a conviction for aggravated sexual assault. TEX.CODE CRIM. PROC. ANN. art. 38.07 (Vernon 2005); see Garcia v. State, 563 S.W.2d 925, 928 (Tex.Crim.App.1978). Courts give wide latitude to testimony given by child victims of sexual abuse. See Villalon v. State, 791 S.W.2d 130, 134 (Tex.Crim. App.1990) (en banc). The victim's description of what happened to him need not be precise, and he is not expected to express himself at the same level of sophistication as an adult. Id. A child victim need not testify to...