Salomechavez v. State
| Decision Date | 15 October 2020 |
| Docket Number | NO. 01-19-00782-CR,01-19-00782-CR |
| Parties | JOSE SALOMECHAVEZ, Appellant v. THE STATE OF TEXAS, Appellee |
| Court | Texas Court of Appeals |
On Appeal from the 371st District Court1Tarrant County, Texas
Jose Salome Chavez2 appeals his convictions for continuous sexual abuse of a child, for which he was sentenced to life imprisonment, and indecency with a child by contact, for which he was sentenced to 20 years' imprisonment and a $10,000 fine, respectively. TEX. PENAL CODE §§ 21.02(b), 21.11(a)(1), (c)(1). On appeal, he contends that the evidence is insufficient to support his convictions, that the trial court erred in holding punishment proceedings in his absence, and that he received ineffective assistance of counsel during punishment. We affirm.
Chavez was indicted on one count of continuous sexual abuse of a child, three counts of aggravated sexual assault of a child, and two counts of indecency by contact with a child. He pleaded not guilty to each of the six counts and proceeded to a jury trial.
At trial, A.C. testified that Chavez was her father's brother, and he lived with her family from when she was six years old to when she was ten years old. At the time of trial, he was in his thirties, and she was 16 years old. A.C. testified that the first time Chavez abused her was when she was six years old. They were alone inhis room at her house. She was on his bed, lying on her right side, and he was behind her facing her back. He told her to be quiet, pulled her pants and underwear down to her knees, pulled down his pants "to where his penis could come out" and "put his penis in [her] butt." He also penetrated her vagina with his penis and ejaculated on her "butt."
Several months later, he sexually assaulted her again. They were alone in his room on the bed, and he put his penis in her vagina. A.C. testified that similar abuse occurred multiple times while Chavez lived with her and her family.
Chavez continued to abuse A.C. after he moved out of the house and moved in with his brother, another of A.C.'s uncles. A.C. frequently visited to play with her younger cousins. The first time it happened at her uncle's house, A.C. and her brothers were in Chavez's room. Chavez turned on a movie for A.C.'s brothers to watch and told A.C. to get on his bed. While her brothers were on the floor facing the television and watching the movie, Chavez pulled down A.C.'s pants and underwear, pulled his own pants down, put his penis in her vagina, and moved "forwards and backwards." His hands were holding A.C. firmly around her stomach, "like a hug." After he ejaculated on her "butt," he gave her money.
A.C. testified that Chavez penetrated her vagina more times than she could remember and that it happened at least five times at her uncle's house. She testified that the last time Chavez penetrated her vagina occurred when she was 13 years old.Chavez put his penis in her vagina and was moving "forward and backward" until she hit him and left the room.
A.C. testified that on another occasion, when she was fourteen years old, Chavez touched her breast. They were in her parents' truck, and he "started to chew on [her] breasts on top of [her] clothes." He touched mostly her right breast with one hand.
A.C. testified that Chavez tried to kiss her once and tried to make her touch his penis. Over the years, he gave her money, in amounts that varied from $5 to $100. A.C. did not want his money, so she gave it to her siblings.
A.C. eventually told an online friend about what was happening with Chavez, and the friend encouraged her to tell her parents. After a party at her church, where she danced with Chavez at her father's suggestion, she told her parents about the abuse. Her mother immediately called the police, who came to her house to investigate. A.C. testified that after she told her parents about the abuse, she became depressed and considered taking pills to commit suicide. She sought residential and outpatient mental health treatment.
A.C.'s mother testified that she had been concerned about her daughter's mood since she was six years old. At six, A.C. expressed a desire to kill herself so she could be alone. A.C's mother took her to a psychologist but did not learn what was causing her suicidal ideations. Over the years, A.C. remained sad, depressed,and distant. A.C.'s mother testified about the night that A.C. told her about Chavez's actions and the impact the abuse had on her daughter.
Sergeant M.D. Lopez of the City of Forest Hills Police Department testified that he responded to a sexual assault call at A.C.'s house in September 2018. When he arrived, A.C. told him details of abuse by Chavez that had occurred multiple times since she was six years old.
Nurse Stacey Henley of Cook Children's Medical Center testified that she is a sexual assault nurse examiner, also known as a "SANE" nurse, who examined A.C. in October 2018. A.C. reported to Henley that she had been abused between 20 and 30 times. Henley noted no injuries to A.C.'s vagina or anus, but she did not expect to see any injuries due to the passage of time and how quickly those body parts heal.
Alexis Harrison testified that she performed a forensic interview of A.C. in October 2018. In addition to the details that A.C. testified to regarding Chavez putting his penis in her vagina and anus, A.C. also told Harrison that Chavez had licked her vagina with his tongue.
The defense called two witnesses. First, A.C.'s father, who is Chavez's brother, testified that his daughter had been sad. He testified that he believed his daughter's story.
Chavez testified in his own defense. He maintained that he was innocent. According to Chavez, while he danced with A.C. at a church party, she asked himfor a tablet computer. When he said he would not buy one for her, she became upset. In response, A.C. threatened that she was going to tell her parents that he was molesting her. He also testified that he gave cash gifts to all of his nieces and nephews and that he did so in front of their parents.
The jury found Chavez guilty of two counts in the indictment: continuous sexual assault of a young child and indecency with a child by contact. Chavez chose jury sentencing. Neither the State nor Chavez put on additional evidence during the punishment phase. After each side rested, the court excused the jury so that the attorneys could finalize the punishment charge. The court recessed for 15 minutes, and when the parties returned for the charge conference, Chavez was no longer present. Chavez's counsel stated that he had no objections to going forward without his client and advised the court that Chavez had left to take care of a medical issue. The court held the charge conference, and neither side had objections to the charge.
Chavez was present when the jury returned for instructions and closing arguments. He was also present when the jury returned its punishment verdict and when the trial court pronounced the judgment and sentenced him. Pursuant to the jury's recommendation, Chavez was sentenced to life imprisonment for continuous sexual assault of a child and 20 years' imprisonment and a $10,000 fine for indecency with a child by contact. He appealed.
In his first issue, Chavez argues that the evidence was insufficient to support his convictions.3 We disagree.
We review a challenge to the sufficiency of the evidence under the standard set forth in Jackson v. Virginia, 443 U.S. 307, 318-20 (1979). See Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010). Under the Jackson standard, evidence is insufficient when, considered in the light most favorable to the verdict, no rational factfinder could have found that each essential element of the charged offense was proven beyond a reasonable doubt. See Jackson, 443 U.S. at 319; Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009). Legal sufficiency of the evidence is measured by the elements of the offense as defined by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997).
We consider both direct and circumstantial evidence as well as all reasonable inferences that may be drawn from the evidence. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We defer to the jury's credibility and weight determinations because the jury is the sole judge of the credibility of witnesses and the weight to be given their testimony. Brooks, 323 S.W.3d at 899. Jurors maychoose to believe or disbelieve any part of a witness's testimony. Gonzalez v. State, 522 S.W.3d 48, 56 (Tex. App.—Houston [1st Dist.] 2017, no pet.). We resolve inconsistencies in the evidence in favor of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000); see Clayton, 235 S.W.3d at 778 ().
Circumstantial evidence is as probative as direct evidence in establishing guilt, and circumstantial evidence alone can be sufficient to establish guilt. Clayton, 235 S.W.3d at 778. "Each fact need not point directly and independently to the guilt of the appellant, as long as the cumulative force of all the incriminating circumstances is sufficient to support the conviction." Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).
If an appellate court finds the evidence insufficient, it must reverse the judgment and enter an order of acquittal. Estrella v. State, 546 S.W.3d 789, 797 (Tex. App.—Houston [1st Dist.] 2018, pet. ref'd).
The uncorroborated testimony of either the child or an outcry witness is sufficient to support a conviction for indecency with a child or sexual assault of a child. Jones v. State, 428 S.W.3d 163, 169 (Tex. App.—Houston [1st Dist.] 2014, no pet.) (citing TEX. CODE CRIM. PROC. art. 38.07)....
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