SOILO ESQUIVEL URIAS v. THE STATE OF TEXAS--Appeal from 377th District Court of Victoria County

NUMBER 13-03-718-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

SOILO ESQUIVEL URIAS, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 377th District Court

of Victoria County, Texas.

  MEMORANDUM OPINION[1]

Before Justices Rodriguez, Castillo, and Garza

Memorandum Opinion by Justice Castillo

The indictment[2] charged appellant Soilo Esquivel Urias with aggravated sexual assault of a child, enhanced.[3] A jury returned a guilty verdict. The trial court assessed punishment at life in the Texas Department of Criminal JusticeBInstitutional Division. By one issue, Urias asserts that the evidence is legally insufficient to prove (1) penetration and (2) penetration by his sexual organ. We affirm.

I. RELEVANT FACTS

The child, C.C., was born on March 13, 1990. On January 24, 2003, she lived with her mother, two brothers and a sister. At the time, Urias was her mother's boyfriend. C.C. testified she had known Urias for "five years, off and on." The molestation began with Urias entering C.C.'s bedroom at night through a window and touching her. Between December 2002 and January 24, 2003, Urias would call her into her mother's room, usually after she returned home from school.[4] Thirteen years old at the time of trial, C.C. described for the jury sexual contact[5] and multiple acts[6] of sexual conduct[7] by Urias. Outcry witnesses testified to the complaints C.C. made. C.C. hid three towels Urias gave her to wipe herself after the sexual contacts. She testified she kept them, "Because I wanted it for evidence, just in case I ever had the guts to tell somebody else." During Urias' defense, C.C.'s mother testified as to inconsistent or contradictory statements made by the child, including her denial that Urias had ever touched C.C.

II. STANDARD OF REVIEW

A. Legal Sufficiency

A legal sufficiency challenge requires us to review the relevant evidence in the light most favorable to the verdict, and then to determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Escamilla v. State, 143 S.W.3d 814, 817 (Tex. Crim. App. 2004) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)); see also Swearingen v. State, 101 S.W.3d 89, 95 (Tex. Crim. App. 2003) (en banc); Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000) (en banc). This standard is designed to give "full play to the [jury's] responsibility fairly" to "draw reasonable inferences from basic facts to ultimate facts." Sanders v. State, 119 S.W.3d 818, 820 (Tex. Crim. App. 2003). We consider all the evidence that sustains the conviction, whether properly or improperly admitted. Conner v. State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001) (citing Garcia v. State, 919 S.W.2d 370, 378 (Tex. Crim. App. 1994) (en banc)). Similarly, we consider all the evidence that sustains the conviction, whether submitted by the prosecution or the defense, in determining the legal sufficiency of the evidence. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000) (en banc); Cook v. State, 858 S.W.2d 467, 470 (Tex. Crim. App. 1993) (en banc). In this review, we are not to reevaluate the weight and credibility of the evidence; rather, we act only to ensure that the jury reached a rational decision. Muniz v. State, 851 S.W.2d 238, 246 (Tex. Crim. App. 1993) (en banc).

The legal sufficiency of the evidence is measured against the elements of the offense as defined by a hypothetically correct jury charge for the case. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997); Cano v. State, 3 S.W.3d 99, 105 (Tex. App.BCorpus Christi 1999, pet. ref'd).[8] This standard of legal sufficiency ensures that judgment of acquittal is reserved for those situations in which there is an actual failure in the State's proof of the crime, rather than a mere error in the jury charge submitted. Malik, 953 S.W.2d at 240. We then determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson, 443 U.S. at 319; Johnson, 23 S.W.3d at 7.

B. The Elements of Aggravated Sexual Assault of a Child

Thus, the hypothetically correct jury charge against which we measure legal sufficiency of the evidence would ask the jury if Urias (1) on or about the alleged dates, (2) intentionally or knowingly, (3) caused penetration of the anus of C.C., (4) who was then a child under 14 years old and not married to him, (5) by his sexual organ. See Act of May 15, 2001, 77th Leg., R.S., ch. 459, ' 5, 2001 Tex. Gen. Laws 893, 898 (amended 2003) (current version at Tex. Pen. Code Ann. ' 22.021(a)(1)(B)(i) (Vernon Supp. 2004 05)).

C. Testimony of a Child in Sexual Conduct Cases

The testimony of a child sexual abuse victim alone is sufficient to support a conviction for aggravated sexual assault. Tex. Code Crim. Proc. Ann. art. 38.07 (Vernon 2005); see Garcia v. State, 563 S.W.2d 925, 928 (Tex. Crim. App. 1978). Courts give wide latitude to testimony given by child victims of sexual abuse. See Villalon v. State, 791 S.W.2d 130, 134 (Tex. Crim. App. 1990) (en banc). The victim's description of what happened to her need not be precise, and she is not expected to express herself at the same level of sophistication as an adult. See id. There is no requirement that the victim's testimony be corroborated by medical or physical evidence. Garcia, 563 S.W.2d at 928; Kemple v. State, 725 S.W.2d 483, 485 (Tex. App.BCorpus Christi 1987, no writ).

D. Sufficiency Analysis

C.C. testified unequivocally that Urias penetrated her anus with his sexual organ when she was under the age of 14, and she was not married to him. The child's description of sexual contact was sufficient evidence from which the jury could find the essential elements of penetration and penetration by sexual organ. Tex. Code Crim. Proc. Ann. art. 38.07 (Vernon 2005). Viewing the evidence in the light most favorable to the verdict, we conclude that any rational trier of fact could have found beyond a reasonable doubt the essential elements of penetration and penetration by sexual organ. See Jackson, 443 U.S. at 319; see also Johnson, 23 S.W.3d at 7. The evidence is legally sufficient to sustain the conviction.

III. CONCLUSION

We overrule the sole issue presented. We affirm the trial court judgment.

ERRLINDA CASTILLO

Justice

Do not publish.

Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and filed

this 30th day of June, 2005.

[1] See Tex. R. App. P. 47.2 & 47.4.

[2] The indictment alleged that, on or about January 24, 2003, Urias did intentionally and knowingly cause the penetration of the anus of C.C., a child younger than fourteen years and not his spouse, by his sexual organ.

[3] See Act of May 15, 2001, 77th Leg., R.S., ch. 459 ' 5, 2001 Tex. Gen. Laws 893, 898 (amended 2003) (current version at Tex. Pen. Code Ann. _ 22.021(a)(1)(B)(i) (Vernon 2004-05)). A person commits aggravated sexual assault if he intentionally or knowingly causes the penetraton of the anus of a child by any means. Id.

[4] C.C.'s brother testified that, during the relevant time, Urias called C.C. into their mother's room about "seven times," and C.C. would be "shaking and shivering" and "scared." C.C. told her brother "many times" that she had to strip for Urias and "had to act like a mistress."

[5] "'Sexual contact' means any touching of the anus, breast, or any part of the genitals of another person with intent to arouse or gratify the sexual desire of any person." Tex. Pen. Code Ann. ' 43.01 (Vernon 2003).

[6] C.C. testified Urias assaulted her about "seventeen times" in the one-month period before the outcry that led to Urias' arrest.

[7] C.C.'s testimony included descriptions of multiple incidences of contact between her anus and mouth and Urias' sexual organ. See Act of May 15, 2001, 77th Leg., R.S., ch. 459 ' 5, 2001 Tex. Gen. Laws 893, 898 (amended 2003) (current version at Tex. Pen. Code Ann. ' 22.021(a)(1)(B)(iii), (iv) (Vernon Supp. 2004-05)).

[8] A hypothetically correct jury charge does not simply quote from the controlling statute. Gollihar v. State, 46 S.W.3d 243, 254 (Tex. Crim. App. 2001). Its scope is limited by the statutory elements of the offense as modified by the charging instrument. See Fuller v. State, 73 S.W.3d 250, 254 (Tex. Crim. App. 2002) (Keller, P.J., concurring) (quoting Curry v. State, 30 S.W.3d 394, 404 (Tex. Crim. App. 2000)). Malik flatly rejects use of the jury charge actually given as a means of measuring sufficiency of the evidence. See Gollihar, 46 S.W.3d at 252. Malik controls sufficiency of the evidence analysis even in the absence of alleged jury charge error. Id. at 255.