Daniel Cuevas v. The State of Texas--Appeal from 79th Judicial District Court of Jim Wells County

No. 04-99-00921-CR

Daniel CUEVAS,
Appellant
v.
The STATE of Texas,
Appellee
From the 79th Judicial District Court, Jim Wells County, Texas
Trial Court No. 98-01-9707-CR
Honorable A.D. Azios, Judge Presiding

Opinion by: Sarah B. Duncan, Justice

Sitting: Tom Rickhoff, Justice

Alma L. L pez, Justice

Sarah B. Duncan, Justice

Delivered and Filed: February 14, 2001

AFFIRMED

Daniel Cuevas appeals his sentence and conviction for indecency with a child. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In January 1998, Daniel Cuevas was indicted for indecency with a child. A jury found him guilty and sentenced him to fifteen years imprisonment. Cuevas appealed.

Legal Sufficiency

In his first point of error, Cuevas argues the evidence is legally insufficient to support the verdict. We disagree.

Standard of Review

In assessing the legal sufficiency of the evidence, we review all the evidence in the light most favorable to the verdict to determine if 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).

Discussion

Cuevas contends the evidence presented by the State is legally insufficient to prove he touched the complainant, Stephanie Crossland, with the intent to arouse or gratify his sexual desire. We disagree.

Intent to gratify the sexual desire of any person is an essential element of indecency with a child. Duwe v. State, 642 S.W.2d 804, 805 (Tex. Crim. App. [Panel Op.] 1982). However, intent may be inferred from the defendant's conduct and surrounding circumstances. McKenzie v. State, 617 S.W.2d 211, 215-16 (Tex. Crim. App. [Panel Op.] 1981).

At trial, Stephanie testified Cuevas "touched me in sexual ways, made me suck his private part" and he "would put his hand in my private part." According to Stephanie, Cuevas had molested her on numerous occasions when her mother was at work in the evening. Sonia Eddleman, a sexual assault nurse who examined Stephanie in March of 1997, testified Stephanie told her Cuevas would:

kiss me on the lips. He would tell me to take my shorts off. He locked the room. There is [sic ] two locks, one on the knob and one on the door. He would get his hand and put it on my private and stick it in, then he would make me put my hand on his private, and then he would get my hand and pull it up and down. His private would get hard. Sometimes some stuff, kind of yellow, white stuff, came out of his private. He would get the cover and wipe it off.

Based on this testimony, a reasonable jury could have inferred Cuevas possessed the requisite intent to commit the offense. We therefore overrule Cuevas' first point of error.

Factual Sufficiency

In his second point of error, Cuevas argues the evidence is factually insufficient to support the verdict. We disagree.

Standard of Review

In reviewing for factual sufficiency, we examine all of the evidence introduced at trial in a neutral light to determine if the verdict was so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). Contradictions in the testimony of witnesses are resolved by jurors as triers of fact because they are in the best position to observe the demeanor of the witnesses and to evaluate their credibility. Cain v. State, 958 S.W.2d 404, 408-09 (Tex. Crim. App. 1997). We do not judge the credibility of witnesses. Id. We instead defer to the jury's decision and do not substitute our judgment for its judgment merely because we believe a different result is more reasonable. Johnson, 2. S.W.3d at 7; Clewis, 922 S.W.2d at 135 (quoting Pool v. Ford Motor Co., 715 S.W.2d 629, 634 (Tex.1986)).

Discussion

Cuevas first complains the evidence is factually insufficient because the State failed to produce evidence that proved the assault actually occurred. Specifically, he contends neither Eden Garcia's nor Sonia Eddleman's testimony established Stephanie was sexually assaulted. Garcia, an investigator for the Jim Well's Sheriff's Department, testified he filed a sexual assault report involving Stephanie. Eddleman testified she examined Stephanie and found no evidence of trauma.

While the testimony of Garcia and Eddleman did not conclusively establish Stephanie had been sexually assaulted, it did support Stephanie's account of the assault. Furthermore, Stephanie's testimony alone was sufficient to establish Cuevas committed the offense. See Garcia v. State, 563 S.W.2d 925, 928 (Tex. Crim. App. 1978); Ruiz v. State, 891 S.W.2d 302, 304 (Tex. App.--San Antonio 1994, pet. ref'd) (noting that testimony of child victim is alone sufficient to support conviction for sexual assault). Thus, this argument is without merit.

Cuevas next argues the evidence is factually insufficient to support the jury's verdict because the testimony of Stephanie, her sister, and her mother was inconsistent. We disagree. "[C]ontradictions or conflicts in a witness' testimony, or in the testimony of several witnesses, do not destroy the sufficiency of the evidence."Cagle v. State, 976 S.W.2d 879, 882 (Tex. App.--Tyler 1998, no pet.). "Rather, contradictory statements relate to the weight of the evidence and the credibility given the witness by the factfinder." Id. (citing Penagraph v. State, 623 S.W.2d 341 (Tex. Crim. App. 1981)).

Here, various witnesses for the State testified the offense was alleged to have occurred sometime before February 1996 while Stephanie, her sister, and her mother were living in Cuevas' home in Jim Wells County. By the time this case was tried in 1999, three years or more had passed. Therefore, the jury could have attributed the inconsistencies to the passage of time. See Cagle, 976 S.W.2d at 881.

Moreover, the inconsistencies Cuevas complains of were immaterial and inconsequential. See Empty v. State, 972 S.W.2d 194, 197 (Tex. App.--Dallas 1998, pet. ref'd). Discrepancies related to who first contacted Child Protective Services (CPS), whether CPS took immediate action, whether Ina, Stephanie's sister, had a history of mental problems making her an incredible witness, and whether Stephanie or her sister actually wrote down in a note the details of the assault did not detract from Stephanie's own detailed account of Cuevas' numerous assaults. See id. Additionally, Stephanie's testimony was corroborated by Ina, who remembered seeing Stephanie crying on three occasions as she left Cuevas' bedroom. Stephanie's mother, Angela Harvey, also testified Stephanie had first alleged Cuevas was sexually molesting her in February 1996 and that when she saw Stephanie making a specific finger sucking gesture, she knew Stephanie was not lying about the abuse because Cuevas had sucked her finger similarly during their sexual encounters. Based on the evidence presented at trial, we hold the jury verdict is not so against the great weight and preponderance of the evidence as to be clearly unjust and wrong. As fact finder, the jury was entitled to resolve issues of credibility and to conclude the inconsistencies in testimony were inconsequential. Id. We therefore overrule Cuevas' second point of error.

Hearsay and Failure to Conduct Article 38.072 Hearing

In his third and fourth points of error, Cuevas contends the trial court erred in overruling his hearsay objection and in allowing Angela Harvey to testify about Stephanie's outcry statements. He further argues the trial court erred in failing to conduct an article 38.072 hearing to determine if the statements Stephanie made to her mother were reliable. In response, the State argues Harvey's testimony was not an outcry statement and, therefore, was admissible. We agree with the State.

Applicable Law

Article 38.072 of the Code of Criminal Procedure "applies only to statements that describe the alleged offense." Tex. Code Crim. Proc. Ann. art. 38.072 2(a) (Vernon Supp. 2000). The victim's statement to the witness "must be more than words which give a general allusion that something in the area of child abuse was going on." Garcia v. State, 792 S.W.2d 88, 91 (Tex. Crim. App. 1990).

Discussion

At trial, the State elicited the following testimony from Harvey:

State: Do you recall an allegation made by your daughter, Stephanie, against Daniel Cuevas?

Harvey: Yes, I do.

State: Do you recall what type of allegation that was?

Harvey: Sexual molestation.

Defense: Your honor, I object on the basis of hearsay.

Court: Overruled. Go ahead.

State: You can answer.

Harvey: Sexual allegation that he molested her.

While it would have been prudent for the trial court to hold an article 38.072 hearing outside the presence of the jury at this juncture to determine if Harvey was in fact the outcry witness, we hold the error, if any, was harmless. Harvey did not testify about a statement made by Stephanie describing the abuse. See Turner v. State, 721 S.W.2d 909, 911 (Tex. App.--Houston [1st Dist.] 1986, pet ref'd, untimely filed). Harvey simply stated Stephanie made an allegation without providing details. Thus, her "testimony was admissible, not to establish the truth of the statements made by the child victim, but to show that an outcry was made and the basic nature of the complaint." Smith v. State, No. 06-00-00134-CR, 2001 WL 65672, at *2 (Tex. App.--Texarkana Jan. 29, 2001, no pet. h.). Consequently, Harvey's testimony was not inadmissible hearsay and there was no violation of article 38.072. See Turner, 721 S.W.2d at 911. We therefore overrule points of error three and four.

The judgment of the trial court is affirmed.

Sarah B. Duncan, Justice

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