Paez v. State, NUMBER 13-16-00429-CR
| Decision Date | 16 August 2018 |
| Docket Number | NUMBER 13-16-00429-CR |
| Parties | SALVADOR PAEZ, Appellant, v. THE STATE OF TEXAS, Appellee. |
| Court | Texas Court of Appeals |
On appeal from the 93rd District Court of Hidalgo County, Texas.
Before Chief Justice Valdez and Justices Rodriguez and Benavides
Appellant Salvador Paez challenges his conviction for continuous sexual abuse of a child, a first-degree felony. TEX. PENAL CODE ANN. § 21.02 (West, Westlaw through 2017 1 st C.S.). By five issues, Paez complains that the evidence is not sufficient to support his conviction, Section 21.02 violates the jury unanimity requirements of the United States and Texas constitutions, and that there is charge error. We affirm.
Paez was charged with continuous sexual abuse of two girls, sisters aged four and five. See id. The mother of the children described at trial how the family knew Paez and the circumstances that allowed him access to her girls. She explained that Paez lived in an apartment near her family's apartment. She and her husband have seven children, including the two young girls, Carmen Cibrian and Juanita Hernandez.1
Paez first became friends with Lorenzo, the girls' father, then with their mother, and he often joined their barbeques on Saturday nights. After Paez had been friends with the family for about a year, he was allowed to go in and out of the house during their social events, to get things from the kitchen, or to use the bathroom at their apartment. Sometimes the mother would be in the kitchen, sometimes not. Guests used the hall bathroom that was near the door of the girls' bedroom. The girls' bedroom door was left partly open when the girls went to bed because they were more comfortable with the door open.
According to the girls' mother, on Sunday night June 15, 2015, the two girls were with her in the apartment complex walking toward their apartment. Carmen saw Paez on the sidewalk and told her mother that "she had to tell me the truth because she couldn't hold it anymore" and that the neighbor, meaning Paez, touched her. Once they got into the apartment, the mother asked Carmen, "did he touch you?" Carmen told her mother that the neighbor "touched her in the middle part, and [Juanita], too." When Carmen told her mother that the neighbor touched her in her middle part, Carmen pointed down to hervaginal area. Juanita also told her mother that the neighbor touched her on "the butt and the middle area, like the front." Juanita "turned around and was showing all — where her butt's at and the front, genital area, the vaginal area, you know, yeah." Even though the girls did not know Paez's name, "[a]s soon as [Carmen] saw him, she told me that he touched her." The mother estimated that Paez had gone inside the apartment five times over a year's period. The same day the girls told their mother that Paez touched them, the mother confronted Paez, as did Carmen.
During her testimony, the girls' mother identified photographs of Paez taken in June 2015 when he had very short hair. She also described him as having a shaved head during part of the time she knew him.
After the girls' outcries, their mother called the police in Edinburg and took the girls to be examined at a local hospital. The family moved away within a few months to get the girls away from that environment.
Carmen testified at trial. She was seven years old and in elementary school. She and her sister shared a bedroom in the apartment. They had bunk beds, and Carmen had the top bunk. Juanita and another sister had the bottom bunk. Carmen explained the touching by saying "at night they used to have barbecues and the neighbor would come." The neighbor would ask "to go to the restroom and then he came to my room" while she was sleeping. Her mom or dad would be in the kitchen. Carmen also explained that she had two private parts, one to pee and the other is "the butt." When the neighbor came into her room, the first time he touched her private part, the one to pee, underneath her pajamas and underwear. He used his hand and put fingers inside her private part to pee. Carmen testified she woke up and told him to stop. He also used his hand to grab her buttand kissed her on her cheek. Carmen testified that these events happened more than once, but she did not know how many times. Carmen saw the neighbor do the same thing to Juanita, he put his finger inside Juanita's clothing, kissed her cheek, and grabbed her butt.
Carmen explained that she did not know the neighbor's name and did not initially recognize him in the courtroom but was able to describe the events leading up to her outcry to her mother, including seeing "the guy that did the thing to me." Carmen described the man who touched her as bald. After a break, Carmen identified Paez and said she recognized him because of his nose. Carmen also recognized the wife of the man who touched her; Paez's wife was sitting in the audience of the courtroom.
Juanita also testified. She was five years' old and did not want to talk about the events involving the neighbor, although she eventually identified a photo of Paez and testified that he touched the part of her body that she uses to pee with his hand. Juanita denied that the neighbor touched her butt. Juanita saw the neighbor touch her sister Carmen while Carmen was asleep. According to Juanita, the neighbor touched her only once. She told her mom because she "didn't want him to touch it."
The sexual assault nurse at the hospital testified that her physical findings were essentially normal, which is very common. She also interviewed Carmen who told her that the neighbor came over when the family barbequed, he asked to use the restroom, then came into her room, touched her inside her pajamas, and put his finger in her front private part. Juanita who was four years old did not give her any details.
The forensic interviewer testified about the process of interviewing each of the girls and explained how much more difficult it was to interview Juanita because of her age.
The final State's witness was Investigator Joaquin Mendoza of the Edinburg Police Department. Investigator Mendoza arrested and interviewed Paez. Paez waived his Miranda rights and made a statement that was videotaped. See Miranda v. Arizona, 384 U.S. 436, 444-45 (1966). Investigator Mendoza also prepared a summary statement that day, Paez read it in Spanish and initialed and signed the statement before a witness. Inspector Mendoza read Paez's summary statement at trial. In his statement, Paez admitted:
Before trial, the State had an interpreter do a word for word translation of the Spanish into English that was admitted into evidence. Multiple times in his statement, Paez says he doesn't remember and that he is repentant. He said, Later on in his video interview, Paez said that he did not recall when he first touched the girls, but then he said a month, "about a month." He then said, Paez admitted touching each child and putting his fingerinside each child's female sexual organ. He said the older one just once, but the younger child, twice.
The defense did not put on any evidence. The jury found Paez guilty and the trial court sentenced Paez to thirty years' imprisonment in the Texas Department of Criminal Justice-Institutional Division. Paez obtained new counsel who filed a motion for new trial in which counsel raised constitutional challenges to the statute and claims of ineffective assistance of counsel. The trial court heard evidence on the motion for new trial and denied it. This appeal ensued.
By his first issue, Paez argues that there is insufficient evidence of two or more instances of sexual abuse that extended over a thirty-day period.
The Court is required to apply the sufficiency standard from Jackson v. Virginia, 443 U.S. 307, 319 (1979). Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010); see also Williams v. State, No. 03-11-00598-CR, 2013 WL 6921489 at *6 n.10 (Tex. App.—Austin Dec. 31, 2013, pet. ref'd.) (). Jackson requires the reviewing court to "view[] the evidence in the light most favorable to the prosecution," to determine whether "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson, 443 U.S. at 319 (emphasis in original). When a reviewing court views the evidence in the light most favorable to the verdict, it "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 their testimony." Brooks, 323 S.W.3d at 899 (emphasis in original)."The reviewing court must give...
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