MAXIMINO VELEZ, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM and Opinion Filed July 14, 2008
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-07-00569-CR
............................
MAXIMINO VELEZ, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the Criminal District Court No. 7
Dallas County, Texas
Trial Court Cause No. F05-19419-LJY
.............................................................
OPINION
Before Justices Morris, FitzGerald, and Lang
Opinion By Justice FitzGerald
        A jury found Maximino Velez guilty of aggravated sexual assault of a child under fourteen and assessed his punishment at fifty years' confinement. Velez appeals the trial court's judgment. In three issues he contends the evidence is both legally and factually insufficient to support his conviction and that the trial court erroneously admitted a drawing made by the complaining witness during therapy. We affirm the trial court's judgment.
Sufficiency of the Evidence
        In his first and second issues, appellant argues the evidence supporting his conviction is both legally and factually insufficient to support the jury's finding of guilt. The specific charge against appellant was that he did:
 
unlawfully then and there intentionally and knowingly cause the contact and penetration of the female sexual organ of [S.V.], a child, who was not then the spouse of defendant, by an object, to-wit: the sexual organ of said defendant, and, at the time of the offense, the child was younger than 14 years of age.
 
In a legal sufficiency review, we view all of the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Sanders v. State, 119 S.W.3d 818, 820 (Tex. Crim. App. 2003). In a factual sufficiency review, we view all of the evidence in a neutral light and ask whether a jury was rationally justified in finding guilt beyond a reasonable doubt. Watson v. State, 204 S.W.3d 404, 415 (Tex. Crim. App. 2006). In any event, the fact finder is the exclusive judge of the witnesses' credibility and the weight to be given to their testimony. Harvey v. State, 135 S.W.3d 712, 717 (Tex. App.-Dallas 2003, no pet.).
        The complaining witness, S.V. was seventeen years old when she testified at trial. She described two periods of time during which appellant, her cousin, engaged in sexual contact with her. When S.V. was approximately five years old and appellant was approximately fourteen, he was living with S.V.'s family. One day he climbed under the covers of the bed on which S.V. was resting. He first touched his penis, then took S.V.'s hand and used it to masturbate himself. Some time after that incident, S.V. came upon appellant in the kitchen and saw appellant touching his penis. Appellant persuaded S.V. to take his penis in her mouth, telling her that if she did not he would tell her parents that she “was the one coming onto him and that they were going to kick [her] out of the house.” She did not tell anyone of either incident at the time.
        When S.V. was approximately seven years old, her family moved to a new home. S.V. testified that appellant was living with them again, and a new series of sexual contacts began. Appellant slept on the floor in the same bedroom with S.V.   See Footnote 1  First there were instances when S.V. would awaken to find appellant touching her “butt.” Then appellant began climbing into bed with S.V. and penetrating S.V.'s vagina with his penis. According to S.V., he did so on more than ten occasions during the next several years. Although S.V.'s memory of dates was not precise, she remembered the incidents of penetration began after the family moved to the new house, and she believed the incidents continued until she was approximately ten years old and appellant was approximately nineteen.
        S.V. did not tell anyone of appellant's conduct until she was fifteen years old. One evening, S.V.'s father was upset with her for not cleaning her room. He was preparing to strike her with a belt when she made her outcry. S.V.'s mother testified that S.V. began screaming, pulling her hair, and “saying she was feeling really bad.” S.V. then told her mother, her father, and her older brother Conrado (who were all in the room at the time) that appellant had abused her when she was a little girl. S.V. testified she had not told anyone earlier because appellant warned her not to do so. She also testified that appellant was very close to her father and that she was not especially close to her parents. She believed the boys in her family, her brothers and cousins, were valued more than she was. But she finally told her parents because she “just couldn't take holding it in” and keeping things “bottled up” any longer.
        The testimony of a child victim alone is sufficient to support a conviction for aggravated sexual assault. Tear v. State, 74 S.W.3d 555, 560 (Tex. App.-Dallas 2002, pet. ref'd); see also Tex. Code Crim. Proc. art. 38.07(a), (b)(1) (Vernon 2005) (when victim of sexual offense is under seventeen, conviction is supportable on her uncorroborated testimony). But appellant argues that his evidence of alibi negates an essential factor in the prosecution's case, i.e., the presence of the defendant at the place and time of the offense, and thus renders the State's evidence legally insufficient. In support of his alibi, appellant offered testimony from two of his cousins that appellant had lived with them in Mexico between 1995 and 1998, and that he had not traveled to the United States during that time. His cousins further testified that when they came to the United States in 1999, appellant remained behind in Mexico. Appellant offered a third witness, the mother of friends of his in Mexico. She testified that between 1996 and 1998 appellant often visited her children in her home. Based on these witnesses' testimony, appellant argued he was in Mexico during 1996 and 1999, the time period of the alleged assaults on S.V. However, not only S.V., but also S.V.'s mother, Cornado, and her adult cousin testified that appellant lived with them during the relevant time period. In addition, S.V. and her mother both testified that appellant traveled back and forth between the United States and Mexico during that time period. We conclude appellant did not establish his alibi defense as a matter of law. The jury was free to accept or reject all or any part of these witnesses' testimony. See Tear, 74 S.W.3d at 560. The evidence is legally sufficient to support appellant's conviction.
        The State points to circumstantial evidence supporting S.V.'s testimony at trial. Cornado testified that he had concerns about appellant's attachment to his younger sister. Cornado once saw appellant kissing S.V. early in the morning in a way that he thought was “weird.” He reported the conduct to his parents, and told them he did not think they should leave S.V. alone with appellant, but they did not believe him. The professionals who interviewed S.V.-both from the police and her therapist-testified consistently to behavior and demeanor the jury could believe was consistent with genuine reports of early abuse. And S.V.'s therapist testified at some length concerning the treatment S.V. was still undergoing at time of trial.         Appellant urges us to weigh heavily his alibi evidence, S.V.'s uncertainty regarding dates, and what he calls her motive to lie. Appellant points out that S.V. only made her outcry when she was about to be punished by her father, and after she made it she was no longer in trouble. The jury had the opportunity to hear and consider these theories. Issues of the witnesses' credibility and the weight to be given to their testimony are for the jury. Harvey, 135 S.W.3d at 717. We cannot conclude, after examining all the evidence, that proof of appellant's guilt is so obviously weak that it undermines our confidence in the jury's findings of guilt, or that it is greatly outweighed by contrary proof. See Tear, 74 S.W.3d at 561. This jury was rationally justified in finding guilt beyond a reasonable doubt. See Watson, 204 S.W.3d at 415. The evidence is factually sufficient to support appellant's conviction.
        We overrule appellant's first and second issues.
Admission of S.V.'s Drawing
        In his third issue, appellant argues the trial court erred in admitting into evidence State's Exhibit 9, a drawing made by S.V. while she was in therapy. We review the trial court's ruling regarding the admission or exclusion of evidence under an abuse of discretion standard. Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000). The drawing was first discussed during the testimony of S.V.'s therapist in the guilt/innocence portion of the trial. As the prosecutor prepared to show the drawing to the therapist, before it was even offered, the trial court said it was not going to admit the drawing, but the court allowed the prosecutor to show it to the witness and to ask her questions about it. The witness went on to describe the picture as S.V.'s attempt to draw about her past, present, and future life. As the witness described the various images on the drawing, she referred to feelings S.V. “discussed” and “described.” Appellant objected on hearsay grounds, and the trial court sustained the objection, adding that:
 
I find that under 403 that the prejudicial impact of this far outweighs its probative value. It might become relevant later. It is not now.
 
        During the punishment phase of the trial, S.V. testified again, and she was shown the drawing and identified it. The prosecutor offered the exhibit, and this brief exchange occurred:
 
[COUNSEL FOR DEFENDANT:]
 
And the defense would object, Your Honor.
THE COURT:
 
It is admitted.
 
In this Court, appellant treats his objection as one under rule 403, but he did not specify that or any other ground for his objection in the trial court. If the objection was intended to be a renewal of appellant's earlier hearsay objection to the drawing, he has not briefed it in this Court. To preserve error for appellate review, the complaining party must make a timely, specific objection. Dixon v. State, 2 S.W.3d 263, 265 (Tex. Crim. App. 1998). A trial objection stating one legal theory may not be used to support a different legal theory on appeal. Camacho v. State, 864 S.W.2d 524, 533 (Tex. Crim. App.1993). A complaint made on appeal must comport with the complaint made in the trial court, or the error is waived. See Rezac v. State, 782 S.W.2d 869, 870 (Tex. Crim. App. 1990).
        It is true the trial court expressed its own relevance concerns when the exhibit was raised during the guilt/innocence portion of the trial. But even if we allow appellant to adopt that objection, his argument fails. During the punishment phase, evidence may be offered by the State and the defendant as to any matter the court deems relevant to sentencing, including the circumstances of the offense for which the defendant is being tried. Tex. Code Crim. Proc. art. 37.07, § 3(a)(1) (Vernon Supp. 2007). One “circumstance of the offense” is the degree of injury inflicted by the defendant and suffered by the victim. See Miller-El v. State, 782 S.W.2d 892, 896 (Tex. Crim. App. 1990). We conclude S.V.'s expression of the feelings she experienced because of the injury she suffered at S.V.'s hands was relevant on the issue of punishment.         Appellant argues that even if the drawing were relevant, it was inappropriate victim impact evidence. We disagree. The Court of Criminal Appeals has recently reaffirmed that “'[v]ictim impact' evidence is evidence of the effect of an offense on people other than the victim.” Roberts v. State, 220 S.W.3d 521, 531 (Tex. Crim. App. 2007) (emphasis in original). Appellant has failed to show how S.V.'s drawing is unfairly prejudicial in any way.
        We conclude the trial court did not abuse its discretion by admitting State's Exhibit 9. We overrule appellant's third issue.
        We have decided all of appellant's issues against him. Accordingly, we affirm the judgment of the trial court.
 
 
                                                          
                                                          KERRY P. FITZGERALD
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 47
070569F.U05
 
Footnote 1 The bedroom was also shared by S.V.'s younger brother and by her adult female cousin. The female cousin and S.V. slept in beds, the baby in a crib, and appellant on the floor. The cousin testified at trial that she worked nights and invariably when she arrived at home, everyone in the house was asleep.