HECTOR MANUEL PLASCENCIA, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM as modified; Opinion issued November 5, 2009
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-08-00242-CR
No. 05-08-00243-CR
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HECTOR MANUEL PLASCENCIA, Appellant
 
V.
 
THE STATE OF TEXAS, Appellee
 
.............................................................
On Appeal from the Criminal District Court
Dallas County, Texas
Trial Court Cause Nos. F06-28151-WH, F06-28310-LH
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OPINION
 
Before Justices Moseley, FitzGerald, and Lang-Miers
Opinion By Justice FitzGerald
 
 
        Hector Manuel Plascencia waived a jury and pleaded not guilty to sexual assault of a child and retaliation. After a trial on the merits, the trial court found appellant guilty and assessed punishment at four years' imprisonment in each case. In three issues, appellant contends the evidence is factually insufficient to support each conviction, and the judgments should be modified to correctly reflect the proceedings and the statute under which he was convicted. We affirm the trial court's judgments as modified.
Factual Insufficiency
Evidence Presented
 
        P.P., the complainant in the sexual assault case, was seventeen years old at trial. She testified that appellant and her mother married when P.P. was two years old, and they have three children together. In September 2005, P.P. was fourteen years old. Although appellant and her mother were separated at that time, appellant came to their house often to see his children. On or about September 1, 2005, appellant brought food to the house for the children. When appellant knocked on the door, P.P. did not answer it. She instructed her siblings not to answer the door while she went into her bedroom to put her two-year-old sister to bed. P.P.'s eight-year-old brother opened the door and let appellant come inside. Appellant came into P.P.'s bedroom and shut the door. Appellant grabbed her shoulders, pushed her onto the bed, and put one hand over her mouth. P.P. initially testified she could not remember exactly what happened next because she has tried to put the incident out of her mind. After the prosecutor asked P.P. to read her written statement to the police, she testified about the sexual assault.
        P.P. said appellant kept one hand over her mouth while he used the other hand to touch her chest. Appellant pulled his pants down, unbuttoned her pants and pulled them down, took his penis out of his boxers and inserted his penis into her vagina. P.P. said she tried to struggle and push appellant away, but he was too strong. P.P.'s sister was in the room, but she was asleep. P.P. did not remember how long appellant's penis was inside her vagina or if appellant said anything to her during the sexual assault. After appellant had finished, he said that she, her brothers, and her mother were “going to get it” if she told anyone about what he had done. P.P. believed appellant was threatening to harm her and her family. Appellant put his pants back on and walked out of her room. P.P. heard appellant tell her brothers that he was going to be back living with them again. After appellant left the house, P.P. put her clothes back on and went into the bathroom. She noticed some “white stuff” on her body. P.P. showered, then got rid of her clothing. P.P. did not remember what she did with the clothing.
        P.P. testified she did not tell her mother about the sexual assault because she did not trust her and did not think she would be believed. P.P. did not believe the police would do anything because she had made a prior accusation of sexual abuse against appellant in 2002 and the police did nothing. In 2002, P.P. told her mother that appellant had sexually assaulted her. The police were notified, but they held appellant for about thirty minutes before releasing him and telling P.P. that she was lying. P.P.'s mother allowed appellant to come back into the house. P.P. testified that in February 2006, she was at a wedding reception and got very sick. She thought she might be pregnant. Her mother came to the reception and took P.P. to the hospital. P.P. told her mother that appellant sexually assaulted her in September 2005. P.P. talked to a police detective and gave a written statement. P.P. testified that she was telling the truth in 2002 about appellant sexually assaulting her and she was telling the truth about appellant sexually assaulting her again in 2005.
        During cross-examination, P.P. testified she also talked with her aunt about the sexual assault, telling the aunt that appellant had punched her several times on the right arm. P.P. also told her aunt that appellant had kicked or pushed her bedroom door open, knocking it off its hinges, appellant slapped her face and grabbed her around the throat, and that appellant tore off the T-shirt she had been wearing and took her pants off. P.P. told her aunt that appellant had ejaculated inside her. P.P. testified she did not remember those specific details until defense counsel asked her specifically about them.
        J.P., the complainant in the retaliation case, is appellant's wife and P.P.'s mother. J.P. testified she married appellant when P.P. was two years old. They had three more children together. Appellant would “come and go” throughout their relationship and was never a father figure to P.P. J.P. said she and P.P. had trust issues that stemmed from P.P.'s allegations of sexual abuse against appellant in 2002. Although she believed P.P.'s allegations at that time, she got no help from the police. On February 18, 2006, someone called J.P. to come to the church where P.P. was attending a reception because P.P. was pregnant and bleeding. J.P. arrived at the church, then drove P.P. to the hospital. En route, P.P. began crying and said, “Mom, I'm sorry, but he did it again.” When they arrived at the hospital, J.P. asked to see a police officer. After an examination revealed that P.P. was not pregnant, both P.P. and J.P. talked to the police and gave written statements. P.P. was fourteen years old at that time. After appellant had been arrested and released, he began calling J.P. and threatening her. J.P. did not recall the exact date of the threat. She testified that sometime around March 21, 2006, appellant called her and said she “didn't know who she was dealing with,” he was going to take her children away from her, and he was going to kill her because “[I]'m getting in the way. I should have never gone to the police station.” J.P. testified she immediately called the police after receiving the threat.
        Appellant's sister testified she has known J.P. for fourteen years and J.P. is not a truthful person. J.P. has a reputation as an untruthful person in the community. She did not know P.P., but testified other people have told her that P.P. is an untruthful person. During cross-examination, she admitted she did not visit J.P.'s home or spend time with J.P. socially.
        Appellant denied having any sexual contact with P.P. at any time. Appellant testified he and J.P. have been married for fifteen years. When they lived in Greenville in 2002, P.P. accused him of sexually abusing her. The police talked with appellant, investigated the allegation, then dropped the charges against him. In September 2005, appellant had been living with his nephew because J.P. had kicked him out of the house in January 2005. In March 2006, appellant was arrested on allegations of sexually assaulting P.P. Appellant did not know why P.P. repeatedly accuses him of sexually abusing her. Appellant could not think of any reason why P.P. would lie about the accusations, but he knows he has never had sexual contact with her. Appellant said he did not remember specifically going to the house on September 1, 2005, but he often went to the house to take food to his children. Appellant admitted that on one Saturday when he went to the house to see his children, he asked the two boys to go outside and play while he went into P.P.'s bedroom. He wanted to talk privately to P.P. He got on his knees and told P.P. she could count on him as a father although her mother had kicked him out of the house. After he told P.P. she could count on him, he left her room and left the house. Appellant testified he talked with J.P. only one time after he got arrested. He called her on the phone and told her she could keep his children, but he needed his “material things.” Appellant also told J.P. he was broke, but someone loaned him the money to pay his bond. Appellant denied he threatened J.P. in any manner, and never said to her that he would take away the children and kill her.
Applicable Law
 
        In a factual sufficiency review, an appellate court views all of the evidence in a neutral light to determine whether the fact-finder's verdict of guilt was rationally justified. See Roberts v. State, 220 S.W.3d 521, 524 (Tex. Crim. App.), cert. denied, 128 S. Ct. 282 (2007); see also Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006), cert. denied, 128 S. Ct. 87 (2007). Unless the record clearly reveals a different result is appropriate, we must defer to the fact-finder's determination concerning what weight to be given to contradictory testimony. Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008).
        To obtain a conviction for sexual assault of a child, the State was required to prove beyond a reasonable doubt that appellant intentionally or knowingly caused the penetration of the female sexual organ of P.P., a child who was not appellant's spouse, by any means. See Tex. Penal Code Ann. § 22.011(a)(2)(A) (Vernon Supp. 2009). The testimony of a child victim alone is sufficient to support a conviction. See Tex. Code Crim. Proc. Ann. art. 38.07 (Vernon 2005); Tear v. State, 74 S.W.3d 555, 560 (Tex. App.-Dallas 2002, pet. ref'd).
        To obtain a conviction for retaliation, the State was required to prove beyond a reasonable doubt that appellant intentionally or knowingly threatened to kill J.P. in retaliation for or on account of her service or status as a witness, a prospective witness, or a person who had reported the occurrence of a crime. See Tex. Penal Code Ann. § 36.06(a)(1) (Vernon Supp. 2009).
Discussion
 
        In his first issue, appellant contends the evidence is factually insufficient because P.P. could not recall the specific date of the alleged offense or many of its details, she had to refresh her memory by viewing her written statement to the police, and her testimony was greatly outweighed by contrary proof. In his second issue, appellant contends the evidence is factually insufficient because J.P.'s testimony was neither credible nor corroborated by any police testimony, and she has a reputation for untruthfulness. The State responds that the evidence is factually sufficient in each case despite any weaknesses in the complainants' testimony or appellant's denials.
        Courts give wide latitude to the testimony of child victims of sexual abuse. See Villalon v. State, 791 S.W.2d 130, 133 (Tex. Crim. App. 1990) (en banc). The trial court heard P.P.'s testimony describing how appellant forced his penis into her vagina. See id. The trial court also heard J.P.'s testimony about appellant's telephone call in which he threatened to kill her, and appellant's testimony denying P.P.'s and J.P.'s allegations. As the fact-finder in this case, it was the trial judge's role to reconcile any conflicts in the evidence. See Swearingen v. State, 101 S.W.3d 89, 97 (Tex. Crim. App. 2003). The trial judge was free to accept or reject any and all of the evidence presented by either side. See Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999).
        Viewing the evidence under the proper standard, we conclude it is factually sufficient to support the sexual assault of a child and retaliation convictions. See Roberts, 220 S.W.3d at 524; Tear, 74 S.W.3d at 560. We resolve appellant's first and second issues against him.
Modify Judgments
 
        In his third issue, appellant contends the trial court's written judgments should be modified to show there were no plea bargain terms and to correct the statute under which appellant was convicted in the sexual assault case. The State agrees with appellant's proposed modifications.
        The records show appellant pleaded not guilty before the court in each case. The trial court's written judgments however, recite the terms of plea bargain as “open.” Thus the trial court's judgments are incorrect. Moreover, the judgment in cause number 05-08-00242-CR recites the statute under which appellant was convicted as “22.01 Penal Code,” which is the statute for assault. See Tex. Penal Code Ann. § 22.01 (Vernon Supp. 2009). Appellant was convicted under section 22.011, sexual assault. See id., § 22.011(a)(2)(A) We sustain appellant's third issue on appeal.
        In cause no. 05-08-00242-CR, we modify the trial court's judgment to show the terms of plea bargain as “none,” and that the statute for the offense is section 22.011 of the Texas Penal Code. See Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex. App.-Dallas 1991, pet. ref'd). In cause no. 05-08-00242-CR, we modify the trial court's judgment to show the terms of plea bargain as “none.”
        As modified, we affirm the trial court's judgment in each case.
 
 
                                                          
                                                          KERRY P. FITZGERALD
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
080242F.U05