Miguel Antonio Vargas v. The State of Texas--Appeal from Criminal District Court of Dallas County of Dallas County

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-05-00168-CR

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MIGUEL ANTONIO VARGAS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the Criminal District Court No. 1

Dallas County, Texas

Trial Court No. F02-72126-UH

Before Morriss, C.J., Carter and Cornelius,* JJ.

Memorandum Opinion by Justice Cornelius

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*William J. Cornelius, Chief Justice, Retired, Sitting by Assignment

MEMORANDUM OPINION

Miguel Antonio Vargas was convicted of aggravated sexual assault of a child under the age of fourteen. A jury convicted Vargas and set his punishment at twenty years' confinement.

Vargas raises two issues on appeal. First, he contends the evidence is factually insufficient to support the conviction. Second, he contends the improper admission of an outcry statement by the victim was reversible error. We overrule both of these contentions and affirm the judgment.

The complainant, E.S., was four years of age when the offense occurred. The State produced evidence that Vargas, who was twenty-one years of age at the time of the offense, caused E.S.'s penis to come into contact with Vargas' mouth. The offense occurred when E.S. was in the home of Maria Vargas, his babysitter, while Miguel Vargas and several other relatives of the babysitter were also in the house. E.S.'s mother came to pick him up at the house, and when E.S. got in the car with his mother, he told her what had happened during the offense. The police were notified. They contacted Vargas, who voluntarily made a written statement admitting to the offense.

Vargas contends the evidence is factually insufficient to support the conviction. He bases this contention primarily on the facts that E.S. was unable to identify him in court as the perpetrator, and E.S.'s other identification testimony was by descriptions that were not specific and could have fit the general descriptions of one or more of the other males who were in the house when the offense occurred.

We review a factual insufficiency challenge according to the standards set out in Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004). We review all of the evidence in a neutral light and determine whether a rational trier of fact would be justified in finding guilt beyond a reasonable doubt. The evidence may be insufficient if, when considered by itself, it may be too weak to support the finding of guilt beyond a reasonable doubt, or after weighing both the contrary and the supporting evidence, the contrary evidence is so strong that the beyond-a-reasonable-doubt standard could not have been met. Id. at 484 85. The jury may resolve conflicts in the evidence and in doing so may accept or reject all or any part of a witness' testimony. Anderson v. State, 895 S.W.2d 756, 757 (Tex. App. Texarkana 1994, no pet.).

We find the evidence factually sufficient to support the verdict. First, E.S. testified personally and directly to the elements of the offense. Although E.S. could only identify the perpetrator by general descriptions, other evidence showed that Vargas fit those descriptions and that he was present when the offense occurred. Other witnesses identified Vargas by terms and descriptions similar to those E.S. used, and there were other circumstances indicating that Vargas was the perpetrator. Additionally, Vargas made a written confession confirming that the offense occurred between him and E.S. Although Vargas tried in his statement to place the blame on E.S. for initiating the sexual contact between them, he made no attempt to deny that the offense occurred and that only he and E.S. were involved in the offense. There is other circumstantial evidence indicating that Vargas was the perpetrator. Suffice it to say, there is clear proof of Vargas' guilt.

Vargas also contends that the trial court reversibly erred when it allowed E.S.'s mother to testify that, shortly after the offense was committed, E.S. told her what happened during the offense. The State did not qualify E.S.'s statement to his mother as an outcry statement admissible pursuant to Article 38.072 of the Texas Code of Criminal Procedure, nor did it justify the admission of the statement as an exception to the hearsay rule. Tex. R. Evid. 801(d), 802, 803; Tex. Code Crim. Proc. Ann. art. 38.072 (Vernon 2005). The statement was therefore hearsay and inadmissible. However, the error was waived when the same evidence was introduced at other points in the trial and Vargas made no objection.

To preserve error in admitting improper evidence, a party must make a timely, proper objection and secure a ruling on the objection. The party must object each time the inadmissible evidence is offered unless a running objection has been obtained. Any error in the admission of inadmissible evidence is cured when the same evidence comes in elsewhere without objection. Valle v. State, 109 S.W.3d 500, 509 (Tex. Crim. App. 2003); Dunn v. State, 125 S.W.3d 610, 614 15 (Tex. App. Texarkana 2003, no pet.); Broderick v. State, 35 S.W.3d 67, 74 (Tex. App. Texarkana 2000, pet. ref'd); Thomas v. State, 1 S.W.3d 138, 142 (Tex. App. Texarkana 1999, pet. ref'd).

Vargas objected to E.S.'s statement to his mother about the offense, but subsequent to that evidence, the same evidence was admitted without objection during the testimony of Ms. Felicia Crumedy, a child therapist. Thus, any error in admitting the statement was cured. Thomas v. State, 1 S.W.3d at 142. Moreover, any error in admitting the evidence was clearly harmless. Not only did the therapist testify to the same facts as revealed to her by E.S., but E.S. testified without objection to all the circumstances of the offense, and Vargas signed a written statement admitting the offense.

For the reasons stated, we affirm the judgment.

William J. Cornelius

Justice*

*Chief Justice, Retired, Sitting by Assignment

Date Submitted: March 15, 2006

Date Decided: May 26, 2006

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