Villalon v. State

• Decision Date: 06 June 1990
• Docket Number: No. 1279-87,1279-87
• Citation: 791 S.W.2d 130
• Parties: Ruben Salinas VILLALON, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 130

791 S.W.2d 130

Ruben Salinas VILLALON, Appellant, v. The STATE of Texas, Appellee.

No. 1279-87.

Court of Criminal Appeals of Texas,

En Banc.

June 6, 1990.

L. Aron Pena, Edinburg, for appellant.

Rene A. Guerra, Dist. Atty., Theodore C. Hake, Asst. Dist. Atty., Edinburg, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW

WHITE, Judge.

Appeal is taken from a conviction for aggravated sexual assault. V.T.C.A., Penal Code, § 22.021(a). After a jury found appellant guilty, the trial court assessed his punishment at eighteen years imprisonment in the Texas Department of Criminal Justice, Institutional Division. On direct appeal, the Court of Appeals reversed appellant's conviction and remanded the cause to the trial court for the entry of an acquittal. Villalon v. State, 739 S.W.2d 450 (Tex.App.--13 Dist.1987).

In reversing appellant's conviction, the Court of Appeals decided that the State presented insufficient evidence to prove that appellant penetrated the female sexual organ of the victim. The Court of Appeals reached this conclusion by disregarding a state witness' account of the victim's outcry, and then finding the rest of the state's evidence to be insufficient to establish penetration. Villalon, 739 S.W.2d at 452-454. The Court of Appeals justified its setting aside of the witness' testimony because it found it to be inconsistent with the victim's testimony at trial. Villalon, 739 S.W.2d at 454. This Court granted the State's petition on three grounds.

All three of the grounds for review are concerned with the Court of Appeals' conclusion that the evidence at trial was insufficient. In the first ground for review, the State attacks the Court of Appeals' overall method of analyzing the State's evidence. In the second ground for review, the State argues the Court of Appeals erred in its assessment of the non-outcry evidence presented by the State. In the third ground for review, the State contends the Court of Appeals was wrong in both its discussion of the purposes for which the nurse's account of the victim's outcry could be considered, and in its attempt to distinguish Chambers v. State, 711 S.W.2d 240 (Tex.Cr.App.1986). We will sustain the State's grounds for review and reverse the decision of the Court of Appeals.

I.

In the first ground for review, the State contends that the Court of Appeals applied an incorrect analytical approach to its evidentiary sufficiency review by segregating the evidence at trial, which had been admitted to the jury without any restrictions being requested or placed on the purposes for which it was to be considered, into separate categories and then determining that the individual parts were insufficient to prove the element of penetration. The State alleges that this approach is in conflict with the decisions of the United States Supreme Court and this Court which mandate an analysis of all the evidence admitted at trial in the light most favorable to the verdict to determine if any rational trier of fact could have found the accused guilty. We agree with the State.

The Court of Appeals erred significantly when it chose to review the State's evidence in separate parts (later in this opinion we will discuss how the Court of Appeals erred in its individual considerations of the non-outcry and the outcry testimony admitted at appellant's trial). The Court of Appeals' failure to review the State's evidence in its entirety during its sufficiency analysis runs counter to the precedent of the Supreme Court and this Court. In Blankenship v. State, 780 S.W.2d 198 (Tex.Cr.App.1988), this Court summarized the correct analytical approach to a review of the sufficiency of evidence:

In reviewing the sufficiency of the evidence to establish whether the State has proved an element of the offense, we must look at all the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have believed the element established beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). We are not to sit as a thirteenth juror reweighing the evidence or deciding whether we believe the evidence established the element in contention beyond a reasonable doubt; rather, we are to ask ourselves whether the trier of fact, acting rationally, could have found the evidence sufficient to establish the element beyond a reasonable doubt. Moreno v. State, 755 S.W.2d 866, 867 (Tex.Cr.App.1988). We do not presume that a jury acted reasonably just because they were properly instructed; we test the evidence to see if it is at least conclusive enough for a reasonable factfinder to believe based on the evidence that the element is established beyond a reasonable doubt. Jackson, 443 U.S. at 318, 99 S.Ct. at 2788, 61 L.Ed.2d at 573. See also Butler v. State, 769 S.W.2d 234 (Tex.Cr.App.1989).

Blankenship, 780 S.W.2d at 206-207.

In the instant case, the Court of Appeals justified its erroneous approach to the sufficiency review on its opinion that the outcry was unreliable and, consequently, lacked probative value; as a result, the Court of Appeals separated out the outcry evidence before considering whether there was sufficient evidence at trial to prove penetration. As a reviewing court, the Court of Appeals had a duty to consider all the evidence admitted at trial before deciding whether there was sufficient evidence to prove the element of the offense in dispute. In Lockhart v. Nelson, 488 U.S. 33, 109 S.Ct. 285, 102 L.Ed.2d 265 (1988), the Supreme Court held, "... a reversal for insufficiency of the evidence should be treated no differently than a trial court's granting a judgment of acquittal at the close of all the evidence. A trial court in passing on such a motion considers all the evidence it has admitted, and to make the analogy complete it must be this same quantum of evidence which is considered by the reviewing court." Lockhart, 109 S.Ct. at 291. See also Beltran v. State, 728 S.W.2d 382, at 389 (Tex.Cr.App.1987).

The Court of Appeals should have considered all of the evidence, both outcry and non-outcry, admitted at trial before concluding that the evidence of penetration was insufficient and remanding the cause for an entry of an acquittal. The Court of Appeals erred in its sufficiency review when it disregarded the evidence which it believed had been contradicted at trial. Lockhart v. Nelson, supra; and Beltran, supra. Even if the Court of Appeals second-guessed the probity of the nurse's outcry testimony, that testimony should not have been excluded from the Court of Appeals' sufficiency review or separated out from the rest of the evidence for an individual sufficiency analysis. The Court of Appeals itself found that "there is no question that the school nurse's testimony of what the victim told her establishes penetration." Villalon, 739 S.W.2d at 452. It was error for the Court of Appeals to find the evidence at trial to be insufficient, and it was error to remand the instant cause for the entry of an acquittal. Deason v. State, 786 S.W.2d 711 (Tex.Cr.App.1990). We sustain the State's first ground for review.

II.

In its second ground for review, the State argues the Court of Appeals erred in its analysis of the non-outcry evidence by failing to recognize that the totality of this evidence constituted sufficient evidence of penetration. The State explains that the Court of Appeals failed to recognize the rule in this jurisdiction that penetration may be proven by circumstantial evidence. Instead, the Court of Appeals justified its conclusion that the non-outcry evidence did not prove the element of the offense on the victim's inability to directly and explicitly testify that appellant's penis penetrated her vagina. The Court of Appeals relied on Vasquez v. State, 145 Tex.Crim. 376, 167 S.W.2d 1030 (1942) for support of its holding. We agree with the State that the Court of Appeals erred in both its statement of the law and in its application of the law to the non-outcry testimony in the instant case.

In Nilsson v. State, 477 S.W.2d 592 (Tex.Cr.App.1972), this Court held that in a prosecution for rape, "penetration may be proved by circumstantial evidence," Nilsson, 477 S.W.2d at 595. This Court also held that there "is no requirement that the prosecutrix be able to testify as to penetration," Nilsson, 477 S.W.2d at 596. ¹ See also Luna v. State, 515 S.W.2d 271, at 273 (Tex.Cr.App.1974); and Voight v. State, 662 S.W.2d 420, at 422 (Tex.App.--13 Dist.1983). The Court of Appeals overlooked these holdings when it reached back forty-five years to find support for its conclusion. The rules set out in Nilsson and Luna reflect the important public policy that we cannot expect the child victims of violent crimes to testify with the same clarity and ability as is expected of mature and capable adults. To expect such testimonial capabilities of children would be to condone, if not encourage, the searching out of children to be the victims of crimes such as the instant offense in order to evade successful prosecution.

Keeping in mind the holdings of Nilsson and Luna, and relying upon the summary of the non-outcry evidence in the Court of Appeals' opinion, we believe that evidence was sufficient to prove the element of penetration. The Court of Appeals summarized the child victim's testimony as follows:

she stated that he got on top of her and started doing "this." While dolls were used during the trial, the record offers no indication of what "this" is. She did state that she didn't have a name for "the stuff he was doing." She said he was on top of her doing bad things "with the one he pees" and that he was trying to "put it where I pee." When asked by the prosecuting attorney if he "put it where (she does) number one," she responded affirmatively. She never testified to language which would establish penetration of the...