Mario Cano v. The State of Texas--Appeal from 380th District Court of Collin County

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-05-00248-CR

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MARIO CANO, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 380th Judicial District Court

Collin County, Texas

Trial Court No. 380-82068-04

Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Chief Justice Morriss

MEMORANDUM OPINION

A jury found Mario Cano guilty of sexually assaulting // J.D., // who was seven years of age at the time of the assault. The jury assessed Cano's punishment at twenty-five years' imprisonment. Cano now appeals, contending the evidence is legally and factually insufficient to support his conviction because J.D. never specifically identified Cano in open court as being the perpetrator of the crime. We affirm. //

(1) Procedural History

The background of this case is procedurally more complex than the above synopsis might otherwise suggest. The indictment in this case is but one of six the grand jury originally returned against Cano, and each of those indictments concerned a different complainant. Additionally, each of the six indictments with the exception of the indictment in this case contained multiple counts. And, to then further complicate matters, the State elected to consolidate all six cases into a single jury trial. See Tex. Pen. Code Ann. 3.02 (Vernon 2003). After both sides had presented their respective cases, but before submitting them to the jury, the trial court granted Cano's motions for directed verdicts in two of the cases. The jury subsequently found Cano guilty in the remaining cases of all counts, with the single exception of the third of three counts in a companion appeal. In all, the State secured nine different convictions against Cano. With this procedural background in mind, we turn to the issues Cano presents in this appeal.

(2) Evidentiary Sufficiency

Cano contends the evidence is legally and factually insufficient to support his conviction because neither J.D. (the complainant in this case) nor any of the complainants in Cano's companion cases ever identified Cano in open court as the person who had sexually assaulted them. In reviewing the legal sufficiency of the evidence, we view the relevant 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 crime beyond a reasonable doubt. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). In our review of the evidence for factual sufficiency, we view all the evidence in a neutral light and determine whether the evidence supporting the verdict is too weak to support the finding of guilt beyond a reasonable doubt or if evidence contrary to the verdict is strong enough that the beyond-a-reasonable-doubt standard could not have been met. Threadgill v. State, 146 S.W.3d 654, 664 (Tex. Crim. App. 2004) (citing Zuniga v. State, 144 S.W.3d 477, 486 (Tex. Crim. App. 2004)).

J.D. was nine years old by the time Cano's cases went to trial. J.D. testified that, when she was seven years old, a man named "Mario" had climbed on top of her and used his "private part" to touch her female sexual organ when the two were in the bedroom of Paulina Dominguez (a relative of J.D.). J.D. also testified she witnessed this same "Mario" sexually assault other children. // Many times during her testimony, J.D. had to use two anatomically correct dolls to explain what she meant by her "private part" and his "private part." Yet her testimony concerning the assaultive conduct was, ultimately, quite clear and specific. Nevertheless, the State never asked J.D. to identify her assailant in open court. Similarly, the complainants in Cano's other cases provided specific testimony regarding their victimization, but none were asked to identify Cano in open court as being the same "Mario" about whom they had testified as having perpetrated the crimes. Thus, there would seem to be an apparent evidentiary disconnect between the evidence of abuse (which was provided through the complainants' various testimony) and the identification of Cano as being the person who committed these crimes.

The complainants' testimony did not, however, constitute the entirety of the State's evidence. Dominguez also testified. She identified Cano in open court as being the same "Mario" who had lived with the family, as being the person who cared for J.D. and the other children when the other adults went to work, as being the person who celebrated holidays and other special occasions with J.D. and her extended family, and as being the same person about whom J.D. and the other complainants had made outcries of sexual abuse.

Identity of the person committing a crime may be proven by circumstantial evidence. Earls v. State, 707 S.W.2d 82, 85 (Tex. Crim. App. 1986). No formalized procedure is required to prove the identity of the accused. Proof by circumstantial evidence is not subject to a more rigorous standard than proof by direct evidence. Roberson v. State, 16 S.W.3d 156, 167 (Tex. App. Austin 2000, pet. ref'd); see Couchman v. State, 3 S.W.3d 155, 162 63 (Tex. App. Fort Worth 1999, pet. ref'd) (proof that a person named "Tony" improperly touched complainant found to be sufficient evidence when combined with testimony of grandmother of complainant who testified defendant was called "Tony" and identified defendant as the "Tony" she was referring to).

Given Dominguez' additional and specific testimony, we believe the jury had before it legally sufficient evidence to link J.D.'s allegations of sexual assault to Cano. On appeal, he tangentially suggests that someone else who had lived in the house might have committed these acts. But there is no evidence in the record to link anyone other than Cano to J.D.'s outcries of abuse. The State's outcry witness specifically identified Cano as being the person about whom the children had complained, and Cano did not bring forth any evidence in the court below that there were others who had lived in that house who could be linked to J.D.'s allegation of sexual assault. Thus, we cannot say that this complete absence of contrary evidence is sufficient to outweigh all the evidence supporting the jury's verdict. And, after a thorough review of the record, we also cannot say there is anything about the jury's verdict that "shocks the conscience" or otherwise appears to be manifestly unjust. Accordingly, we overrule Cano's first and second points of error.

Finding the evidence both legally and factually sufficient to support the identification of Cano as the same "Mario" identified by the complainant as being her assailant, we affirm the trial court's judgment.

Josh R. Morriss, III

Chief Justice

Date Submitted: July 28, 2006

Date Decided: August 22, 2006

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