PABLO KELLER v. The State of Texas--Appeal from 24th District Court of Victoria County

NUMBER 13-04-283-CR & 13-04-284-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

PABLO KELLER, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 24th District Court

of Victoria County, Texas.

  MEMORANDUM OPINION[1]

Before Justices Rodriguez, Castillo, and Garza

Memorandum Opinion by Justice Castillo

Two indictments charged appellant Pablo Keller with aggravated sexual assault of a child[2] and indecency with a child.[3] A jury returned a guilty verdict on both charges, assessed punishment at seventy years for aggravated sexual assault and sixty years for indecency with a child. The jury also assessed a $10,000 fine on each charge. By one issue, Keller asserts the evidence was legally and factually insufficient to prove identity. We affirm.

I. RELEVANT FACTS

Keller is A.E.'s maternal step-grandfather. A.E. was born on March 24, 1992. She met Keller when she was seven years old. With her mother, A.E. often visited her grandmother's house. Twelve years old at the time of trial, A.E. testified that, when she was almost nine years old, "One morning something happened." While at her grandmother's house, Keller told her that "he was going to teach [her] to be an older woman and to show [her] what it was like to be an older woman." He did nothing at that time. On or about December 1, 2000, Keller and A.E. walked to a store to return an outfit for her grandmother. On the way, they stopped outside a church. A.E. described for the jury sexual contact[4] and sexual conduct by Keller at that time[5] and when the two returned to her grandmother's house.[6]

Outcry witnesses testified to the complaint A.E. made, and the police investigation that was stopped when she recanted her statement. In a letter to Keller, A.E. stated she lied and apologized. The letter was admitted in evidence. A.E. explained that family members gathered to discuss her outcry, and one aunt told her to write the letter. A.E. testified on direct as follows regarding the letter:

Q: Who actually wrote the letter?

A: My cousin Denise. I told her to write it for me but I told her what to write.

Q: And why did you tell her to write for you?

A: I didn=t want to write it.

A.E. read the letter to the jury. In the letter, A.E. stated she lied. Her mother testified that she believed the child. She further testified that A.E. wrote the letter after she overheard that the family would disown them. A.E. outcried a few months later.

Keller testified in his own defense. He denied molesting A.E. At one point during cross-examination, the prosecutor asked him, "Mr. Keller, you are saying that [A.E.] is a liar are you not?" He responded, "I'm not saying that she lied."

II. SCOPE AND STANDARDS 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).[7] 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. Factual Sufficiency

A factual sufficiency review begins with the presumption that the evidence supporting the jury's verdict is legally sufficient, that is, sufficient under Jackson v. Virginia, 443 U.S. 307, 319 (1979). See Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996) (en banc). In a factual sufficiency review, the appellate court views all the evidence in a neutral light and determines whether 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) (en banc). A clearly wrong and unjust verdict occurs where the jury's finding is "manifestly unjust," "shocks the conscience," or "clearly demonstrates bias." Prible v. State, No. AP 74,487, 2005 Tex. Crim. App. LEXIS 110, at *16 *17 (Tex. Crim. App. January 26, 2005) (designated for publication). In conducting a factual sufficiency review, we review all the evidence. Cain v. State, 958 S.W.2d 404, 408 (Tex. Crim. App. 1997). We must consider the most important evidence that the appellant claims undermines the jury's verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003). However, we approach a factual sufficiency review with appropriate deference to avoid substituting our judgment for that of the fact finder.[8] Johnson v. State, 23 S.W.3d 1, 6 7 (Tex. Crim. App. 2000) (en banc). Every fact need not point directly and independently to the accused's guilt. Vanderbilt v. State, 629 S.W.2d 709, 716 (Tex. Crim. App. 1981). A conclusion of guilt can rest on the combined and cumulative force of all the incriminating circumstances. Id.

Our neutral review of all the evidence, both for and against the challenged elements, looks to determine whether proof of guilt is so obviously weak as to undermine confidence in the jury's determination, or whether proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. See Zuniga v. State, 144 S.W.3d 477, 484 85 (Tex. Crim. App. 2004); see also Zuliani v. State, 97 S.W.3d 589, 593 94 (Tex. Crim. App. 2003). We remain mindful of the jury's role to resolve conflicts in testimony. See Mosley v. State, 983 S.W.2d 249, 254 (Tex. Crim. App. 1998) (en banc) (concluding that questions concerning the credibility of witnesses and the weight to be given their testimony are to be resolved by the trier of fact); see also Esquivel v. State, 506 S.W.2d 613, 615 (Tex. Crim. App. 1974). We must assume that the fact finder resolved conflicts, including conflicting inferences, in favor of the verdict, and must defer to that resolution. Matchett v. State, 941 S.W.2d 922, 936 (Tex. Crim. App. 1996) (en banc).

We measure the legal and factual sufficiency of the evidence against a hypothetically correct jury charge.[9] Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997); Adi v. State, 94 S.W.3d 124, 131 (Tex. App.BCorpus Christi 2002, pet. ref'd); Cano v. State, 3 S.W.3d 99, 105 (Tex. App.BCorpus Christi 1999, pet. ref'd).

III. DISCUSSION

Keller's argument on appeal focuses on the question of identity. He asserts that A.E.'s recantation is fatal to the State's proof that he was the perpetrator. Where identity is an issue in the case, the identity of the perpetrator may be proved by direct or circumstantial evidence. Earls v. State, 707 S.W.2d 82, 85 (Tex. Crim. App. 1986) (holding that evidence as to the identity of the perpetrator of an offense can be proved by direct or circumstantial evidence).

A.E. unequivocally identified Keller as the perpetrator. Keller testified, denying the allegations. Defense counsel cross examined A.E. at length that she had described the incidences of sexual contact and conduct and then recanted her statement. The jury was authorized to convict Keller of aggravated sexual assault of a child and indecency of a child if the evidence showed he engaged in proscribed sexual contact and conduct with A.E. By its verdict, the jury believed A.E. and rejected Keller's claim of innocence.

Having reviewed all the evidence in the light most favorable to the verdict, we conclude that the evidence demonstrates that a rational trier of fact could have found beyond a reasonable doubt that Keller was the perpetrator. We conclude that the evidence was legally sufficient to sustain the essential element of identity.

Having reviewed all the evidence neutrally, favoring neither the prosecution or Keller, we find that proof that Keller was the perpetrator is not so obviously weak as to undermine confidence in the jury's determination. See Zuliani, 97 S.W.3d at 593 94. Nor do we find that the proof is greatly outweighed by contrary proof. See id. That the evidence was not free of contradiction and that the credibility of witnesses may have been subject to question does not require us to conclude that the verdict was factually insupportable. See id. Those circumstances merely create issues for the jury to resolve. Id. Faced with a record of historical facts that supports conflicting inferences, we presume that the trier of fact resolved any conflicts in favor of the prosecution. See Jackson, 443 U.S. at 326. The jury chose to resolve the evidence in favor of the prosecution. We defer to that resolution. Id. We conclude that the evidence was factually sufficient to sustain the essential element of identity.

IV. CONCLUSION

We overrule Keller's 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 and 47.4.

[2] See Tex. Pen. Code Ann. _ 22.021 (Vernon 2003). The indictment alleged that, on or about December 1, 2000, Keller intentionally and knowingly caused the penetration of the mouth of A.E, a child under the age of fourteen years and not his spouse, by his sexual organ.

[3] See Tex. Pen. Code Ann. _ 21.11(a)(1) (Vernon 2003). The two-count indictment alleged that, on or about December 1, 2000, Keller, with the intent to gratify his sexual desire, intentionally and knowingly engaged in sexual contact with A.E., a child under the age of seventeen years and not his spouse, by (1) touching her genitals, and (2) touching her breast. The State proceeded to trial on the first count.

[4] "'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).

[5] A.E. testified that Keller touched her inappropriately and told her that "he was going to teach [her] how to be a woman . . . He was going to be the only man in [her] life and . . . [she] was never going to be with somebody else or have a life with somebody else. . . even if he was 60 or older . . . he was still going to be with [her]." A.E. also testified about other incidents when Keller touched her inappropriately.

[6] A.E.'s testimony included a description of contact between her mouth and Keller's sexual organ after he exposed himself to her. Tex. Pen. Code Ann. ' 22.021(a)(1)(B)(v) (Vernon Supp. 2004-05).

[7] 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.

[8] We always remain aware of the fact finder's role and unique position, a position we are unable to occupy. Johnson v. State, 23 S.W.3d 1, 9 (Tex. Crim. App. 2000) (en banc). Exercise of our authority to disagree with the fact finder's determination is appropriate only when the record clearly indicates our intervention is necessary to stop manifest injustice. Id. at 9. Otherwise, we accord due deference to the fact finder's determinations, particularly those concerning the weight and credibility of the evidence. Id. Absent exceptional circumstances, issues of witness credibility are for the jury, and we may not substitute our view of the credibility of a witness for the constitutionally guaranteed jury determination. Id.; Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979).

[9] The court of criminal appeals has not specifically applied the hypothetically correct jury charge analytical construct to factual sufficiency reviews in jury trials. See Zubia v. State, 998 S.W.2d 226, 227 n.2 (Tex. Crim. App. 1999) (per curiam) (en banc) (dismissing as improvidently granted the question of whether Malik should extend to factual grounds not submitted to the jury).