Vargas v. State
| Decision Date | 19 November 2020 |
| Docket Number | NUMBER 13-18-00225-CR |
| Parties | MARIO VARGAS, Appellant, v. THE STATE OF TEXAS, Appellee. |
| Court | Texas Court of Appeals |
On appeal from the 319th District Court of Nueces County, Texas.
Before Chief Justice Contreras and Justices Longoria and Perkes
Appellant Mario Vargas appeals his conviction of indecency with a child by contact, a second-degree felony. See TEX. PENAL CODE ANN. § 21.11. Appellant was sentenced to four years' incarceration. By what we construe as four issues, appellant contends that: (1) the evidence is legally insufficient to support a conviction; (2) the trial court abused its discretion when it restricted appellant's voir dire on punishment ranges; (3) the trial court erroneously excluded defense witness testimony; and (4) the trial court abused its discretion by denying his motion for new trial. We affirm.
Appellant was indicted on one charge of continuous sexual abuse of a child under the age of fourteen, a first-degree felony, and one charge of aggravated sexual assault of a child by digital penetration, a first-degree felony. See id. §§ 21.02, 22.021. Appellant is the paternal grandfather of the complaining witness for both charges, I.V.1 Appellant pleaded not guilty, and the case proceeded to trial on January 9, 2018.
I.V., who was twelve years old at trial, testified that her parents, V.G. and M.V., were separated and that she and her two brothers would visit their father, M.V., in San Antonio "mainly during the summer," staying with him for "[a]bout a week." M.V. lived with his wife, son, and parents, appellant and C.V. According to I.V., appellant began touching her with "[h]is hand" "down in [her] private," the same area she uses to "pee," when she was six years old. I.V. said "[m]ost of the time it was underneath" the clothes.
I.V. testified to only one incident occurring in Corpus Christi. I.V. said that when she was ten years old, appellant and C.V. came into town, and V.G. took I.V. and her brothers to visit them at their hotel. On that day, I.V. said appellant touched her twice "on that part." In both instances, I.V. stated appellant asked her to sit on his lap before touching her. I.V. testified appellant "touched [her] on the outside of [her] clothes" on her"private" shortly after she arrived at the hotel while she was changing her shoes. In the evening, I.V. stated he did it again after she had gotten out of the pool. I.V. said he stopped when she said she had to go to the bathroom. I.V. then told her mother. "I remember—I think I was sitting down[,] and my mom had come up to me and asked me what was wrong, so I had told her." I.V. testified she had not told anyone prior because she was "scared" and was "afraid if [she] had told, no one would believe [her]" or her "brothers would be upset to not go visit [their] dad anymore."
On cross-examination, appellant asked I.V. to draw a map of the pool area and testify as to where she recalled everyone was, what she wore, and what towel she used. I.V. testified that she remembered she was wearing shorts and a bikini top and had her "my Little Pony towel" with her. She identified where appellant, her mother, grandmother, and aunt, D.V., were.
I.V. was confronted with a statement she made during an interview at the Child Advocacy Center (CAC). In the videotaped statement, I.V. stated appellant had touched her inappropriately, he stopped when she left for the bathroom, she returned and sat on her grandfather's lap again, and then she walked over to the pool to tell her mother.
V.G. testified she and M.V. had been separated for over ten years and because they "didn't talk," V.G. usually communicated with him through I.V.'s paternal grandparents. V.G. testified that on June 4, 2015, C.V. invited her and the children to their hotel to go swimming. Although she recalled seeing I.V. sit on appellant's lap, V.G. testified she did not see him touch her. V.G. testified that at some unspecified point, I.V. walked towards her and told her "that her grandfather had put his hands inside of her shorts . . . in her vagina." V.G. said she pulled her daughter into the pool with her onceshe saw appellant walking in their direction. V.G. said she thereafter grabbed her children, left, and called the police as soon as she arrived home. An officer transported V.G. and I.V. to the hospital where I.V. underwent an examination.
Sandra Pardo, a sexual assault nurse examiner, testified I.V. had no signs of visible trauma. Pardo opined that it was "unlikely that there would be any trauma" given I.V.'s reported allegations. "Even with my sexual assaults that have had penile penetration, the majority of my patients do not have trauma at all," testified Pardo. According to Pardo, I.V. stated:
'I was sitting on my grandpa's lap and he started touching me down here.' (Patient indicates female sexual organ by pointing) 'with his hands. He was touching me under my clothes. He went on the inside and told me he was hurting me (sic.), and then he went on the outside. He was doing it when I was 7, when I would see him in the summer. He would do it when I was on his lap. He would touch me. He said he never gets to touch grandma that way.
As part of her examination of I.V., Pardo collected swab samples from I.V.
When the State rested its case-in-chief, the State announced it would be proceeding only on the aggravated sexual assault of a child charge.
Robin Castro, a forensic scientist with the Texas Department of Public Safety crime laboratory, testified she analyzed the swabs obtained in the forensic exam. Castro determined that the genetic material on the swabs was "consistent with the DNA profile of [I.V.]," and appellant was "excluded as a contributor of the profile." Castro proffered that the changing of clothing or washing of the body will gradually remove any foreign DNA.
Defense DNA expert Dr. Robert Benjamin testified he reviewed the laboratory reports and though he agreed that "swimming in a pool, just like washing," was a "fair[ly] effective, but not a guaranteed, way of removing DNA from a surface," appellant's lack of DNA on the samples tested was probative. Benjamin testified, "[I]f it is determined that it would be very likely that had this occurred, that DNA should still be there."
C.V. and D.V. also testified. C.V. testified that I.V. appeared "excited to be there" visiting them at the hotel, whereas V.G. "seemed very distracted." C.V. said in the evening, I.V. had gotten out of the pool and "went to sit on [appellant's] leg, and he said something to the effect of: 'You're wet,' [and] got a towel." C.V. testified that I.V. sat "wrapped in the towel" "on the mesh part of the chair" between appellant's legs. C.V. said she was seated next to appellant, and they had been discussing whether to allow I.V. and her brothers to spend the night. C.V. testified that, after some time, I.V. "head[ed] to the pool where her mom [was] swimming" and "lean[ed] down to talk to her mom." C.V. testified appellant then said he needed to "'go tell [V.G.] why they can't stay.'" C.V. said she turned to start collecting her belongings, and when she returned her attention to the pool area, she saw V.G. getting out of the pool with the children. C.V. testified she never observed appellant put his hand inside I.V.'s towel.
On cross-examination, C.V. admitted she had consumed "several drinks" and "probably wouldn't have driven a car, but [she] wasn't falling down, passing out, slurring drunk." C.V. also testified she had recently been arrested for driving while intoxicated.
D.V. testified that she was the only one not drinking. According to D.V., at some point in the evening, I.V. exited the pool and approached them. D.V. said she, C.V., andappellant were seated in a "half[-]moon" formation in the pool area. D.V. said appellant "decided to wrap [I.V.] in her towel" because I.V. had been "complaining that she was cold." D.V. testified that I.V. "wanted to sit on his lap" but appellant said no, so she sat on the "edge of his chair." Then, I.V. went back to the pool and "whispered something to [V.G.], at which [sic] [appellant] approached them." D.V. said she saw V.G. " D.V. testified that, based on her observations, appellant could not have gotten his hand into I.V.'s towel and into the shorts I.V. was wearing.
Ruby Stimson and Margaret Dunn, two of appellant's friends who were at the pool that day, also testified. Dunn testified that she and her husband had known appellant for at least twenty years and that her husband and appellant were Masons and Shriners together. Dunn opined that appellant had a reputation for being truthful and honest. Dunn said she remembered seeing I.V. go "up to [appellant] and—she was wet, and he had a towel, and he gave her the towel, and she sat there, very appropriately with [appellant]." Dunn explained she was seated about "one or two chairs over" from where appellant was seated, and she never saw appellant place his hand inside I.V.'s towel.
On cross-examination, Dunn was pressed as to whether she was testifying that no assault had occurred or that she simply had not witnessed an assault, and she maintained the former.
Stimson testified her husband grew up with appellant, and appellant had a reputation for being honest and trustworthy. Stimson could not recall whether appellant had been with anyone at the pool area in the evening but did remember V.G. telling herthat she and M.V. "wanted to get back together, but the only—the reason they weren't back together is because [appellant] was standing in the way of that."
The jury...
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