Moises Castillo Lopez v. The State of Texas--Appeal from 195th District Court of Dallas County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

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MOISES CASTILLO LOPEZ, ) No. 08-05-00036-CR

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Appellant, ) Appeal from

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v. ) 195th District Court

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THE STATE OF TEXAS, ) of Dallas County, Texas

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Appellee. ) (TC# F-0351450-WV)

O P I N I O N

Moises Castillo Lopez appeals his conviction of aggravated sexual assault of a child. A jury found Appellant guilty and assessed his punishment at a fine of $5,000 and imprisonment for a term of seven years. We affirm.

FACTUAL SUMMARY

Eight-year-old K.L. lived with her parents, two brothers, and Appellant, her uncle. K.L. s father was in El Salvador as part of a Christian ministry. On May 11, 2003, a Sunday afternoon, K.L. and her younger brother were taking a nap. K.L. s mother, Sandra, went to a nearby church to purchase sodas. She estimated that she was gone fifteen to twenty minutes. When she returned, she saw Appellant s car in the driveway. She went in the house and found her younger son playing alone. He indicated that K.L. was in Sandra s bedroom. When Sandra saw that her bedroom door was closed, she pushed it open and saw K.L. on her back on the edge of the bed with Appellant kneeling between her legs. K.L. was crying and had covered her face. Appellant s pants were down around the middle of his buttocks and Sandra saw his penis. Sandra pulled Appellant away from her daughter by grabbing the back of his underwear. Appellant immediately said it s not what you re thinkin, but Sandra hit him and they began to argue. They went into the living room and Sandra tried to call the police. Appellant took the telephone away from her and threw it down but Sandra was able to complete the call.

K.L. testified about the assault. She was asleep when Appellant woke her up. He laid her on her mother s bed with her feet hanging off of the edge. Appellant pulled down her underwear and began touching her private part with his private part. Through the use of drawings of a girl and boy, K.L. indicated that by private part she meant the girl s female sexual organ and the boy s penis. Appellant held both of her hands and tried to put his private part, which felt hard, into her private part, but it hurt. Appellant stopped when her mother opened the bedroom door. Appellant became angry and pushed the phone out of her mother s hands as she tried to call the police.

Officer Melissa Person and Officer Griffith arrived at the house and found Sandra hysterical. Person described both Sandra and K.L. as extremely upset. Appellant was gone but a church member returned him to the house. The scene became more chaotic when Appellant arrived. Person observed Appellant to look a little nervous in the eyes. In order to calm the situation, the officers decided to separate Appellant from K.L. and Sandra. Person remained in the house with Appellant while Griffith took K.L. and Sandra onto the porch to speak with them. Person handcuffed Appellant because she feared that he would flee. He was not under arrest but he was not free to go during this portion of the investigation. Appellant, who was seated on the couch, made the following statements to Person: I did do it. I did it for her own good. I did it so she will know. I did it so she will believe me. I did it so she will know I love her. Appellant repeated these statements over and over again. When Griffith returned, she told Person that a sexual assault had occurred and the mother had witnessed it. Person advised Appellant that he was under arrest for the sexual of assault of K.L. and she placed him in the patrol car.

K.L. was taken to a hospital that same day where she underwent a medical examination. Dr. Marvin Culbertson, III found bruising on the inside of the child s labia but he did not observe bruising of the vagina or tearing of the hymen. His findings were consistent with the history provided by K.L. and it was unlikely that the injuries had been caused by some type of accident, such as falling down, since there were no injuries to the outer genitalia. The injuries indicated that some object had penetrated the labia.

Allison Medina, a forensic interviewer at the Children s Advocacy Center, subsequently interviewed K.L. and did not find any signs that she had been coached.

After receiving his Miranda // warnings, Appellant provided a written statement to police detectives: I just checked her to see if [K.L.] was or had been with her brother. At trial, Appellant testified and denied sexually assaulting his niece. The jury found him guilty of intentionally and knowingly penetrating K.L. s female sexual organ with his penis.

WRITTEN STATEMENT

In Point of Error One, Appellant challenges the admission of his written statement because he did not intelligently, knowingly, or voluntarily waive his rights. // Appellant argues that he did not understand his rights or the nature of the proceedings because he is primarily a Spanish speaker and is uneducated. He also contends that he was afraid of the police officers.

We review a trial court s ruling on a motion to suppress using the bifurcated standard articulated in Guzman v. State, 955 S.W.2d 85 (Tex.Crim.App. 1997). See Carmouche v. State, 10 S.W.3d 323, 327 (Tex.Crim.App. 2000); Krug v. State, 86 S.W.3d 764, 765 (Tex.App.--El Paso 2002, pet. ref d). We do not engage in our own factual review because at a suppression hearing, the trial judge is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given to their testimony. See State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App. 2000); Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App. 1990). We give almost total deference to the trial court s ruling on (1) questions of historical fact and (2) application-of-law-to-fact questions that turn on an evaluation of credibility and demeanor. Johnson v. State, 68 S.W.3d 644, 652-53 (Tex.Crim.App. 2002); Best v. State, 118 S.W.3d 857, 861-62 (Tex.App.--Fort Worth 2003, no pet.). We review de novo a trial court s rulings on mixed questions of law and fact if they do not turn on the credibility and demeanor of witnesses. Johnson, 68 S.W.3d at 652-53. Because the trial court s ruling on the admissibility of Appellant s written statement turns on an evaluation of credibility and demeanor, we are not at liberty to disturb any finding which is supported by the record. See Dewberry v. State, 4 S.W.3d 735, 747-48 (Tex.Crim.App. 1999).

To be admissible, a statement must be in writing, or electronically recorded, and show on its face that the accused was made aware of his rights. See Tex.Code Crim.Proc.Ann. art. 38.22, 2 (Vernon 2005); Tex.Code Crim.Proc.Ann. art. 38.22, 3; Garcia v. State, 919 S.W.2d 370, 378 (Tex.Crim.App. 1994). Detectives Arlene Martinez and Alberto Chavez interviewed Appellant on May 13, 2003. Appellant told the detectives that he spoke and wrote both English and Spanish but he preferred Spanish. Chavez read the warnings aloud to Appellant in Spanish. Appellant read along, and placed his initials next to each individual warning on the card indicating that he understood each right. Appellant also placed his signature on the card and told the detectives that he understood his rights. Detective Martinez conducted the interview in English with Detective Chavez serving as the translator. Martinez recalled that Appellant often answered in English even before Chavez had translated. Appellant told Chavez that he knew he had violated K.L. He had confronted the child as to whether she was having sex with her brother. When K.L. admitted it, he told her that he needed to check her. Appellant placed her on the bed, pulled her underwear to the side, and opened her vagina with his hands in order to look at it. It was at this point that Sandra walked into the bedroom. Appellant did not reduce these oral statements to writing. The written statement form is in Spanish and contains the warnings required by Article 38.22. Appellant told the detectives that he understood his rights and he placed his initials beneath each paragraph on the form to so indicate. In his own handwriting, Appellant wrote, I just check her to see if [K.L.] was or had been with her brother, I solo le aparte su panty toque con mis dedos. Detective Chavez translated the Spanish portion of the statement as I only moved her panties and touched with my fingers. The detectives did not raise their voices or threaten Appellant during the interview.

Appellant testified at the suppression hearing that he did not graduate from high school. He could read and speak English but he preferred Spanish. He admitted signing the warning card and initialing the written statement form, but insisted he did not understand them. He claimed that he signed the documents because both detectives questioned him in loud voices and he was afraid they would hit him. His written statement was not true and he gave the statement only because he was mad.

Because the record supports the trial court s conclusion that Appellant understood his rights, voluntarily waived them, and voluntarily gave the written statement, we conclude that the court did not abuse its discretion by denying Appellant s motion to suppress. See Dewberry, 4 S.W.3d at 747-48. Point of Error One is overruled.

LEGAL AND FACTUAL SUFFICIENCY

In Points of Error Two and Three, Appellant contends that the evidence is legally and factually insufficient to support his conviction because K.L. s testimony conflicted with her mother s, and the State failed to present any physical, medical, or scientific evidence that he penetrated the complainant s female sexual organ with his penis.

Standards of Review

In reviewing the legal sufficiency of the evidence to support a criminal conviction, we must review all the evidence, both State and defense, in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560, 573 (1979); Geesa v. State, 820 S.W.2d 154, 159 (Tex.Crim.App. 1991), overruled on other grounds, Paulson v. State, 28 S.W.3d 570 (Tex.Crim.App. 2000). We do not resolve any conflict of fact or assign credibility to the witnesses, as it was the function of the trier of fact to do so. See Adelman v. State, 828 S.W.2d 418, 421 (Tex.Crim.App. 1992); Matson v. State, 819 S.W.2d 839, 843 (Tex.Crim.App. 1991). Instead, our duty is only to determine if both the explicit and implicit findings of the trier of fact are rational by viewing all of the evidence admitted at trial in a light most favorable to the verdict. Adelman, 828 S.W.2d at 422. In so doing, any inconsistencies in the evidence are resolved in favor of the verdict. Matson, 819 S.W.2d at 843. Further, the standard of review is the same for both direct and circumstantial evidence cases. Geesa, 820 S.W.2d at 158.

In reviewing factual sufficiency of the evidence to support a conviction, we are to view all the evidence in a neutral light, favoring neither party. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000); Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). In Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004), the Court of Criminal Appeals clarified the factual sufficiency standard and linked the appellate standard of review to the beyond a reasonable doubt burden of proof. There is only one question to be answered in a factual sufficiency review:

Considering all of the evidence in a neutral light, was a jury rationally justified in finding guilt beyond a reasonable doubt? Zuniga, 144 S.W.3d at 484. However, there are two ways in which the evidence may be insufficient. Id. First, when considered by itself, evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt. Id. Second, there may be both evidence supporting the verdict and evidence contrary to the verdict. Id. Weighing all the evidence under this balancing scale, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met, so the guilty verdict should not stand. Id. at 485. This standard acknowledges that evidence of guilt can preponderate in favor of conviction but still be insufficient to prove the elements of the crime beyond a reasonable doubt. Id. Stated another way, evidence supporting guilt can outweigh the contrary proof and still be factually insufficient under a beyond-a-reasonable-doubt standard. Id. In performing this review, we are to give due deference to the jury verdict, as well as to determinations involving the credibility and demeanor of witnesses. Zuniga, 144 S.W.3d at 481.

Penetration

A person commits the offense of aggravated sexual assault of a child if he intentionally or knowingly causes the penetration of the female sexual organ by any means, and the victim is younger than fourteen years of age. See Tex.Penal Code Ann. 22.021(a)(1)(B), (a)(2)(B)(Vernon Supp. 2005). The Penal Code does not define the term penetration. Case law, however, has established that the slightest penetration of the female sexual organ is sufficient to prove penetration even though the vagina is not entered. See Vernon v. State, 841 S.W.2d 407, 409 (Tex.Crim.App. 1992); Sherbert v. State, 531 S.W.2d 636, 637 (Tex.Crim.App. 1976); Nilsson v. State, 477 S.W.2d 592, 595 (Tex.Crim.App. 1972). Penetration occurs where the contact is more intrusive than contact with the outer labia. See Vernon, 841 S.W.2d at 409. Pushing aside and reaching beneath a natural fold of skin into an area of the body not usually exposed to view, even in nakedness, is a significant intrusion beyond mere external contact, and is sufficient to prove penetration. Id.

This case is factually similar to Vernon v. State. There, the complainant testified that her stepfather put his finger in her vaginal area, but she was unable to describe the contact any more specifically other than to say that he started pressing and it hurt. See Vernon, 841 S.W.2d at 409. Medical testimony established the complainant had an injury under the fold of her labia majora but outside the vaginal canal. Id. at 409. The Court of Criminal Appeals concluded that penetration had occurred because the evidence established more intrusive contact than contact with the outer labia. Id.

Here, K.L. testified that Appellant touched her private part with his private part and she described how it hurt when he tried to put his private part in her. Contrary to Appellant s argument that there is no medical evidence of penetration, Dr. Culbertson found bruising on the inner labia outside of the vaginal vault. This bruising indicated that some object had penetrated the inner labia and Dr. Culbertson s findings were consistent with K.L. s account of the offense. While the evidence did not show penetration of the vagina, it is legally sufficient to establish penetration of the female sexual organ. See Vernon, 841 S.W.2d at 409 (evidence showing that defendant pushed aside and reached beneath natural fold of skin and made contact with an area near the vaginal entrance was sufficient to prove penetration of female sexual organ); Sherbert, 531 S.W.2d at 637 (penetration proven where complainant testified that defendant pushed his penis against and into her female sexual organ, and medical evidence showed abrasion just outside of the vaginal opening); Rhynes v. State, 479 S.W.2d 70, 72 (Tex.Crim.App. 1972)(evidence showing only slight penetration of complainant s female sexual organ due to defendant s lack of erection was sufficient to establish penetration); Murphy v. State, 4 S.W.3d 926, 929 (Tex.App.--Waco 1999, pet. ref d)(penetration proven where child victim s testimony showed that defendant placed his fingers between the child s labia and rubbed on the vaginal opening).

Regarding factual sufficiency, Appellant argues that K.L. and her mother were not credible witnesses. We must keep in mind, however, that it was the jury s task to resolve conflicts in the evidence, determine credibility, and assign weight to the evidence. Deference must be accorded to the jury s determinations involving the credibility and demeanor of witnesses. See Zuniga, 144 S.W.3d at 481. Appellant challenges Sandra s testimony because she admitted that she could not remember everything clearly as it happened so fast. While Sandra did not remember every detail, she did see Appellant kneeling between K.L. s legs with his pants loose and his penis exposed. K.L. was on the bed crying with her face covered. Similarly, Appellant attacks K.L. s credibility because she could not remember certain details about the incident and her testimony was sometimes contradictory. While the child could not remember every detail and some of her testimony seemed contradictory, she consistently testified that Appellant attempted to put his private part in her private part and that it hurt. Contrary to Appellant s assertions regarding the absence of medical evidence, Dr. Culbertson found bruising of the inner labia consistent with K.L. s testimony about the assault. Penetration of the inner labia is sufficient to support a conviction of aggravated sexual assault even though there is no penetration of the vagina. We conclude that the evidence is factually sufficient to support Appellant s conviction of aggravated sexual assault. Points of Error Two and Three are overruled. The judgment of the trial court is affirmed.

March 23, 2006

ANN CRAWFORD McCLURE, Justice

Before Barajas, C.J., McClure, and Chew, JJ.

(Do Not Publish)