Rodriguez, Isaac v. The State of Texas--Appeal from 208th District Court of Harris County

Affirmed and Opinion filed August 29, 2002.

In The

Fourteenth Court of Appeals

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NO. 14-01-00965-CR

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ISAAC RODRIGUEZ, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 208th District Court

Harris  County, Texas

Trial Court Cause No. 853,146

O P I N I O N

A jury found appellant, Isaac Rodriguez, guilty of aggravated sexual assault of a child. The trial court assessed punishment at twenty-four years= confinement. In two points of error, appellant claims the evidence is legally and factually insufficient to support the conviction. We affirm.

Background and Procedural History

Sharon Cortez, the complainant=s stepmother, testified that the complainant became hysterical when it came time to take her back to her mother=s house at the end of the Fourth of July weekend. Cortez testified that the complainant confided in her that appellantCcomplainant=s mother=s boyfriendChad sexually abused her and that she was afraid to go home. Cortez told the complainant=s father who, in turn, reported the sexual abuse allegations to the police.

During trial, the complainant testified that appellant moved in with her family when she was eight or nine years old. At the time, the complainant was living in her maternal grandmother=s house. She testified that she and appellant were in the home alone the first time he touched her. She explained that on that occasion the other members of the household were working and the other kids had gone to school, but that she missed the school bus. She said appellant lied and told the school that she would not be there that day because she was sick. She testified that she and appellant were in the kitchen when he told her to move closer to him and then A[h]e started touching me@ inside her pants. She said appellant touched her Amiddle part@ with his finger and told her not to tell anyone. She said she was scared and afraid of appellant. She testified that the touching occurred on more than one occasion and that it continued after they moved out of her grandmother=s house. The complainant testified that appellant also put his Amiddle part@ on her Amiddle part@ and that he made her touch his private part with her hands and put his penis, or Amiddle part@ in her mouth. The complainant testified that it hurt when appellant put his private part on hers.

Sheela Lahoti, a general pediatrician at the Childrens= Assessment Center Clinic, examined the complainant and testified that her examination of complainant=s genitalia showed a scar indicating older trauma and that suggested there had been Apenetrating trauma.@ Appellant testified and denied the sexual assault allegations.

Legal and Factual Sufficiency

In two points of error, appellant claims the evidence is legally and factually insufficient because the testimony of the complainant was not credible.

In evaluating the legal sufficiency of the evidence, we view 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. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000) (citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2788-89 (1979)). We conduct a factual sufficiency review by reviewing all the evidence in a neutral light to determine whether the proof of guilt is so obviously weak as to undermine confidence in the jury=s determination, or whether the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). We may set aside the jury=s verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Id. at 7.

A person commits an offense if that person knowingly or intentionally causes the sexual organ of a child to contact or penetrate the mouth, anus or sexual organ of another person and if the victim is younger than fourteen years of age. See Tex. Pen. Code Ann. ' 22.021 (Vernon Supp. 2002). In this case, the prosecutor used male and female dolls to aid in complainant=s testimony. The complainant described the female genitalia area on the doll as the Amiddle part.@ The jury then heard complainant testify that appellant touched her on her Amiddle part@ on more than one occasion. She said appellant put his Amiddle part@ on her Amiddle part,@ made her touch his private part with her hands, and made her put his penis, or Amiddle part,@ in her mouth. Complainant stated that it hurt when his private part touched her private part.

Appellant claims the state offered no scientific or medical evidence to corroborate complainant=s testimony. However, Dr. Lahoti examined complainant, who was almost ten at the time of the exam. Lahoti testified that complainant=s record showed that complainant said her mother=s boyfriend had touched her Amiddle part@ under her clothes and it hurt when appellant touched her under her clothes with his middle part. Lahoti testified that her examination of complainant=s genitalia showed a scar indicating older trauma, which suggested there had been Apenetrating trauma.@ In any event, the testimony of a child victim, standing alone, is sufficient to support a conviction for sexual assault. See Jensen v. State, 66 S.W.3d 528, 534 (Tex. App.CHouston [14th Dist.]2002, no pet.); Tex. Code Crim. Proc. Ann. art. 38.07 (Vernon Supp. 2002) (the testimony of a victim under 18 does not require corroboration to support a conviction for aggravated sexual assault).

Appellant also claims complainant=s testimony is not credible, noting that complainant denied on direct examination that appellant=s Amiddle part@ had touched her Amiddle part,@ although complainant changed her testimony during rebuttal testimony. A child is not expected to testify with the same ability and clarity that is expected of a mature, capable adult witness. Villalon v. State, 791 S.W.2d 130, 134 (Tex. Crim. App. 1990). The complainant explained that her earlier answers were given because she was scared and embarrassed. Reconciling conflicts in the evidence is within the exclusive province of the jury. Wyatt v. State, 23 S.W.3d 18, 30 (Tex. Crim. App. 2000). The jury heard the complainant testify that the touching began when they were living in her grandmother=s home and that appellant continued to touch her in her mother=s home. In contrast, the jury heard appellant testify that he did not touch her. The jury also heard other members of the household testify that they had not noticed the abuse. Here, the jury clearly believed the testimony of the complainant and disbelieved the testimony of appellant and his witnesses. We are required to give deference to the fact-finder=s determinations, particularly determinations concerning the weight and credibility of the evidence, and we will not disturb those findings on appeal. Johnson, 23 S.W.3d at 9.

An appellate court=s review of the evidence should not substantially intrude upon the jury=s role as the sole judge of the weight and credibility of witness testimony. Wesbrook v. State, 29 S.W.3d 103, 112 (Tex. Crim. App. 2000). While a neutral review of the evidence reveals contradictory testimony throughout the trial, resolution of such conflict is an issue for the jury. Wyatt, 23 S.W.3d at 30. We do not find evidence in the record that greatly outweighs the evidence supporting the verdict. Nor do we find the proof of guilt to be so obviously weak as to undermine confidence in the jury=s determination. Accordingly, the jury=s decision was not clearly wrong and unjust. Appellant=s points of error are overruled.

The judgment of the trial court is affirmed.

/s/ Leslie Brock Yates

Justice

Judgment rendered and Opinion filed August 29, 2002.

Panel consists of Justices Yates, Seymore, and Guzman.

Do Not Publish CTex. R. App. P. 47.3(b).