Torres v. State

• Decision Date: 26 May 2021
• Docket Number: No. 10-18-00358-CR,10-18-00358-CR
• Parties: ANTONIO T. TORRES, Appellant v. THE STATE OF TEXAS, Appellee
• Court: Texas Court of Appeals

ANTONIO T. TORRES, Appellant v. THE STATE OF TEXAS, Appellee

No. 10-18-00358-CR

STATE OF TEXAS IN THE TENTH COURT OF APPEALS

May 26, 2021

From the 413th District Court Johnson County, Texas

Trial Court No. F50694

MEMORANDUM OPINION

Appellant Antonio T. Torres was convicted by a jury of two counts of aggravated sexual assault of a child and one count of indecency with a child by sexual contact. The jury assessed Torres's punishment at forty-five years' incarceration each on the aggravated sexual assault counts and twenty years' incarceration on the indecency count, all to be served concurrently. In four issues, Torres challenges the sufficiency of the evidence on each count and asserts that the trial court erred in the definitions included in the jury charge. We will affirm.

Background

Torres was indicted for sexually abusing one victim, identified by the pseudonym Becky Thomas,¹ on three separate occasions. The indictment charged that the three separate incidents occurred in January 2014 and December 2014 when Becky was less than fourteen years of age. Several witnesses testified at trial, including Becky, the girlfriend of Becky's biological father, who was an outcry witness, a forensic interviewer, and a sexual assault nurse examiner. Becky's outcry did not occur until over a year after the abuse allegedly occurred. There was no physical evidence of abuse nor any witnesses to the actual abuse other than Becky.

The testimony at trial reflects that "Larry," Becky's biological father, impregnated Becky's mother "Evie" when Evie was thirteen or fourteen years of age. Evie gave birth to Becky when Evie was fourteen. Larry has three convictions for aggravated sexual assault of a child under fourteen years of age, one of which involved Evie, and is a registered sex offender. Evie began a relationship with Torres when Becky was three or four years of age. Evie and Torres placed Torres's name on Becky's birth certificate even though Torres is not Becky's biological father. Evie had two more daughters with Torres before their relationship ended. In 2012, Evie introduced Becky to Larry and allowed her to spend significant time with him. The Department of Human Services removed Becky and her sisters from Evie and placed them withTorres's parents, who considered Becky one of their grandchildren. The Department required that all visits with the children by Evie, Torres or Larry be supervised. When the children were returned to Evie, she allowed Becky to resume visits with Larry. There was some indication that Evie allowed Becky to move in with Larry.

After the relationship with Torres ended, Evie began a relationship with "Gordon," who moved in with her and the girls. In 2015, Evie got into an altercation with Torres's mother after Evie and Gordon left Becky and her sisters alone while Evie and Gordon attended a concert. When the police investigated, Becky told the police that Gordon had threatened Evie with a gun, that there was marijuana in their house, and that Gordon sold marijuana. As a result of this incident, the Department opened another investigation into Evie and her children.

In the meantime, Torres was in jail for failure to pay child support. When Torres was released from jail, he observed Becky at Larry's house and told Becky that she was not supposed to be there. Shortly thereafter, Becky made an outcry to Larry's girlfriend that Torres had sexually abused Becky in the past. Becky was unclear as to the dates the abuse had occurred when she testified, but from the surrounding circumstances the abuse occurred prior to the time Torres was jailed for failure to pay child support. The incidents Becky described occurred while she was spending the night at Torres's parents' house.

Torres's defense was that Evie concocted the allegations against him and persuaded Becky to lie in order to forestall another investigation by the Department and so that Becky could continue visiting Larry, who was a more lenient parent. The implication from the questions directed at the witnesses was that if any abuse occurred, it was inflicted by Larry.

Discussion

A. Sufficiency. In his first three issues, Torres asserts that the evidence was insufficient on each count to sustain a conviction. The Court of Criminal Appeals has expressed our standard of review of a sufficiency issue as follows:

When addressing a challenge to the sufficiency of the evidence, we consider whether, after viewing all of the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Villa v. State, 514 S.W.3d 227, 232 (Tex. Crim. App. 2017). This standard requires the appellate court to defer "to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Jackson, 443 U.S. at 319, 99 S.Ct. 2781. We may not re-weigh the evidence or substitute our judgment for that of the factfinder. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). The court conducting a sufficiency review must not engage in a "divide and conquer" strategy but must consider the cumulative force of all the evidence. Villa, 514 S.W.3d at 232. Although juries may not speculate about the meaning of facts or evidence, juries are permitted to draw any reasonable inferences from the facts so long as each inference is supported by the evidence presented at trial. Cary v. State, 507 S.W.3d 750, 757 (Tex. Crim. App. 2016) (citing Jackson, 443 U.S. at 319, 99 S.Ct. 2781); see also Hooper v. State, 214 S.W.3d 9, 16-17 (Tex. Crim. App. 2007). We presume that the factfinder resolved any conflicting inferences from the evidence in favor of the verdict, and we defer to that resolution. Merritt v. State, 368 S.W.3d 516, 525 (Tex. Crim. App. 2012). This is because the jurors are the exclusive judges of the facts, the credibility of the witnesses, and the weight to be given to the testimony. Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010). Direct evidence andcircumstantial evidence are equally probative, and circumstantial evidence alone may be sufficient to uphold a conviction so long as the cumulative force of all the incriminating circumstances is sufficient to support the conviction. Ramsey v. State, 473 S.W.3d 805, 809 (Tex. Crim. App. 2015); Hooper, 214 S.W.3d at 13.

We measure whether the evidence presented at trial was sufficient to support a conviction by comparing it to "the elements of the offense as defined by the hypothetically correct jury charge for the case." Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). The hypothetically correct jury charge is one that "accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried." Id.; see also Daugherty v. State, 387 S.W.3d 654, 665 (Tex. Crim. App. 2013). The "law as authorized by the indictment" includes the statutory elements of the offense and those elements as modified by the indictment. Daugherty, 387 S.W.3d at 665.

Zuniga v. State, 551 S.W.3d 729, 732-33 (Tex. Crim. App. 2018).

The elements of aggravated sexual assault of a child are found in § 22.021 of the Penal Code. See TEX. PENAL CODE ANN. § 22.021. As relevant to this case, a person commits the offense of aggravated sexual assault of a child if the person intentionally or knowingly causes the penetration of the sexual organ of a child by any means or causes the mouth of a child to contact the sexual organ of another person, including the actor, and the victim is younger than fourteen years of age. Id. §§ 22.021(a)(1)(B), (a)(2)(B).

A person commits the offense of indecency with a child by sexual contact if the person intentionally or knowingly engages in sexual contact with a child younger than seventeen years of age or causes the child to engage in sexual contact. Id. § 21.11(a)(1). "Sexual contact," as relevant to the charges in this case, includes the following acts, if committed with the intent to arouse or gratify the sexual desire of any person: (1)touching through clothing of any part of the genitals of a child, and (2) touching any part of the body of a child with any part of the genitals of a person. See id. § 21.11(c); see also Carmona v. State, 610 S.W.3d 611, 615 (Tex. App.—Houston [14th Dist.] 2020, no pet.).

Torres asserts that the evidence is insufficient to support his conviction on any of the counts of the indictment because "all the evidence presented at trial was either the testimony of [Becky] or statements previously made to others by [Becky]. There were no other witnesses to the alleged criminal conduct, no physical evidence, no medical evidence, or any other evidence to support [Becky's] allegations." Torres further notes, "The only direct evidence presented is the testimony of [Becky] which is uncorroborated, inconsistent, and contradictory. The conflicting statements and shifting stories made by [Becky] about the alleged criminal conduct combined with the illogical idea that this type of offense occurred in a small room with two other children present in the same small room and two adults in the next room makes her testimony void of any credibility."

The uncorroborated testimony of a child victim can be sufficient to support a conviction. See TEX. CODE CRIM. PROC. art. 38.07; see also Garcia v. State, 563 S.W.2d 925, 928 (Tex. Crim. App. 1978) (holding victim's testimony of penetration by defendant, standing alone, was sufficient). Furthermore, the State has no burden to produce physical, medical, or other corroborating evidence. See Jones v. State, 428 S.W.3d 163, 169 (Tex. App.—Houston [1st Dist.] 2014, no pet.). To the extent the lack of

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