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. 06-05-00250-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. 380-82070-04

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

Memorandum Opinion by Justice Carter

MEMORANDUM OPINION

A jury found Mario Cano guilty on two counts of aggravated sexual assault and two counts of indecency with a child. // The named victim was a young girl, // who was ten years old at the time of the assault. The jury assessed Cano's punishment at fifty years' imprisonment on both aggravated sexual assault counts, and Cano's punishment for both indecency charges was assessed at fifteen years' imprisonment. Cano now appeals, contending the evidence is legally and factually insufficient to support the conviction because N.C. did not specifically identify Cano in open court as being the perpetrator of the crimes. We affirm. //

I. 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 indictments the grand jury originally returned against Cano, and each of those indictments concerned a different complainant. Additionally, each of six indictments contained multiple counts with the exception of the indictment in a companion appeal, Cano v. State, cause number 06-05-00248-CR. 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 of trial court cause number 380-82067-04. See Cano v. State, cause number 06-05-00247-CR. 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.

II. Evidentiary Sufficiency

Cano contends the evidence is legally and factually insufficient to support his conviction because N.C. (the complainant in this case) never identified Cano in open court as the person who had sexually assaulted her. 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)).

N.C. was almost thirteen years old by the time Cano's cases went to trial. N.C. testified that, when she was younger, a man named "Mario" had once lived in her home, but that man named "Mario" now lives in jail. N.C. told the jury how Mario had often fondled her breasts and had once forced her onto a bed so that he could then lay on top of N.C. while rubbing his body against hers (even though both had their clothes on at the time). On a different occasion, when N.C. was going to her room after showering, "Mario" grabbed her, pushed her into his room, threw her on the bed, pulled down his pants, and forced her to put her hand on his penis. N.C. did not, however, specifically identify the appellant in this case as being the same "Mario" who had sexually assaulted her. Similarly, the complainants in Cano's other cases provided specific testimony regarding their victimization, but none were asked to identify Cano specifically in open court as being the same "Mario" or "Mario Cano" about whom they had testified as having perpetrated the crimes. Accordingly, 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 the appellant as being the same person who committed the crimes identified in the victims' testimony.

The complainants' testimony did not, however, constitute the entirety of the State's evidence. Paulina Dominguez, N.C.'s mother, also testified. Dominguez identified Cano in open court as being the same "Mario" who had lived with the family, as being the person who cared for N.C. and the other children when the other adults went to work, as being the person who celebrated holidays and other special occasions with N.C. and her extended family, and as being the same person about whom all the 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 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 N.C.'s allegations of sexual assault to Cano. On appeal, Cano 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 N.C.'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 these allegations 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 appeal.

III. Conclusion

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.

Jack Carter

Justice

Date Submitted: July 28, 2006

Date Decided: August 22, 2006

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