Leopoldo Cruz v. The State of Texas--Appeal from 109th District Court of Andrews County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

LEOPOLDO CRUZ,

Appellant,

v.

THE STATE OF TEXAS,

Appellee.

No. 08-05-00175-CR

Appeal from the

109th District Court

of Andrews County, Texas

(TC# 4530)

O P I N I O N

We withdraw our opinion and judgment dated October 19, 2006 and substitute the following opinion in its place. Leopoldo Cruz appeals his conviction of indecency with a child, enhanced by two prior felony convictions. Following the jury s finding of guilt, the court found both enhancement paragraphs true and assessed punishment at imprisonment for fifty years. We affirm.

FACTUAL SUMMARY

In the summer of 2004, Cassie Davis and her then three-year-old daughter, L.D., lived in Andrews, Texas with Cassie s mother, aunt, and stepfather, Appellant. L.D. referred to Appellant as Poppy Leo or Pappa Leo. No other men lived in the house with them and L.D. did not refer to anyone else as Poppy Leo or Pappa Leo. She did refer to another male relative as Poppy Neal, but Neal did not stay at the house with the family. Appellant and L.D. often watched television together in the bedroom while her grandmother, Susan Davis, was cooking or taking a bath.

Cassie noticed behavioral changes in L.D. during this time period. Although she had been potty-trained since two years of age, L.D. suddenly began urinating in her panties around the end of May. Late in the summer, L.D. and her mother were watching television on the bed when L.D. suddenly put her hand between her mother s legs, touched her genital area, and said tickle, tickle. L.D. s grandmother, Susan Davis, noticed that during this time period, L.D. suddenly started sucking her thumb, and became clingy and whiny about everything. On one occasion, L.D. asked her grandmother to play a game with her by going under a blanket. When they were under the blanket, L.D. wanted to tickle Susan and then grabbed her breasts, saying booby, booby. L.D. had never done anything like this before.

On July 15, 2004, Cassie took L.D. to Andrews Family Medicine because she had been complaining of a burning sensation when she urinated. During the exam by nurse practitioner, Peggy Thurston, L.D. stated that her Pee pa had put his hands in her panties. Thurston determined that L.D. had a urinary tract infection, but based on L.D. s statement, she also called the police and set up a sexual assault examination. Rhonda Jagow, a certified sexual assault nurse examiner, performed the examination on L.D. that same day. Jagow learned from the police officer who accompanied L.D. that an allegation of fondling had been made, so she did not attempt to collect any physical evidence. Jagow performed a detailed genital examination of L.D. and found no injury. In her opinion, there was nothing in the examination that was inconsistent with L.D. s outcry of genital touching because fondling often did not result in injury.

Andrea Kay Chamberlain, the director of the Children s Advocacy Center Program in Midland, interviewed L.D. on July 23, 2004. Chamberlain utilized anatomical drawings of a male and female and asked L.D. to label the private areas of the body. When asked if she had ever gotten a touch she did not like, L.D. replied that Poppy had touched her many times. L.D. pointed to the vaginal and anal area of the girl in the drawing and indicated that she had been touched under her clothes. L.D. told Chamberlain that the bad touches occurred when she and Poppy were under a blanket in a bedroom which she referred to as the tunnel. She and Poppy played a game by talking in the tunnel. Poppy did not have on any clothes and L.D. saw his pee pee or wee wee which she described as being brown. The bad touches occurred when L.D. s mother was away from the house and her grandmother was in another room. Poppy told L.D. that he wanted to touch her.

L.D., who was four years of age at the time of trial, testified that Poppy Leo touched her wee wee three times with his hand. During this testimony, she pointed to the vaginal area of an anatomical drawing and referred to it as wee wee. When asked whether Poppy Leo was in the courtroom, L.D. stated that he was not.

SUFFICIENCY OF THE EVIDENCE

In Point of Error One, Appellant contends that the evidence is legally and factually insufficient because L.D. did not make an in-court identification of him and the sexual assault examination found no injuries.

Elements of the Offense

A person commits indecency with a child if, with a child younger than seventeen years of age and not the person s spouse, whether the child is the same or the opposite sex, the person engages in sexual contact with the child or causes the child to engage in sexual contact. Tex.Penal Code Ann. 21.11(a)(1)(Vernon 2003). 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.Penal Code Ann. 21.01(2)(Vernon Supp. 2006).

Legal Sufficiency

In reviewing legal sufficiency, we must review the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U .S. 307, 318, 99 S. Ct. 2781, 2788-89, 61 L. Ed. 2d 560 (1979). We defer to the trier of fact s determinations regarding the weight and credibility of the evidence because they are in the best position to review the evidence first hand. Matson v. State, 819 S.W.2d 839, 843 (Tex.Crim.App. 1991); Moreno v. State, 755 S.W.2d 866, 867 (Tex.Crim.App. 1988). Our only duty is to determine whether both the explicit and implicit findings of the trier of fact are rational by viewing all the evidence in a light most favorable of the verdict. Dewberry v. State, 4 S.W.3d 735, 740 (Tex.Crim.App. 1999); Adelman v. State, 828 S.W.2d 418, 422 (Tex.Crim.App. 1992). In so doing, any inconsistencies in the evidence are resolved in favor of the verdict. Matson, 819 S.W.2d at 843. The standard of review is the same for both direct and circumstantial evidence cases. Geesa v. State, 820 S.W.2d 154, 158 (Tex.Crim.App. 1991).

Appellant first argues that the evidence is insufficient because L.D. did not identify him in court as her assailant. Identification of the defendant as the person who committed the offense charged is an element of the offense which the State must prove beyond a reasonable doubt. Miller v. State, 667 S.W.2d 773, 775 (Tex.Crim.App. 1984). The identity of a perpetrator may be proven by either direct or circumstantial evidence. Roberson v. State, 16 S.W.3d 156, 167 (Tex.App.--Austin 2000, pet. ref d); Couchman v. State, 3 S.W.3d 155, 162 (Tex.App.--Fort Worth 1999, pet. ref d), citing Earls v. State, 707 S.W.2d 82, 85 (Tex.Crim.App. 1986). If there is no in-court identification of the perpetrator s identity elicited from trial witnesses, no formalized procedure is required for the State to prove the identity of the accused. Clark v. State, 47 S.W.3d 211, 214-15 (Tex.App.--Beaumont 2001, no pet.); Roberson, 16 S.W.3d at 167. The sufficiency of the evidence is then determined from the cumulative effect of all the evidence; each fact in isolation need not establish the guilt of the accused. See Alexander v. State, 740 S.W.2d 749, 758 (Tex.Crim.App. 1987). Further, the absence of an in-court identification is merely a factor for the jury to consider in assessing the weight and credibility of the witness s testimony. See Meeks v. State, 897 S.W.2d 950, 955 (Tex.App.--Fort Worth 1995, no pet.). Thus, the absence of an in-court identification does not render the evidence insufficient where there is other evidence sufficient to identify the defendant as the perpetrator. See Couchman, 3 S.W.3d at 162; Meeks, 897 S.W.2d at 954-55.

In Couchman, a defendant charged with indecency with a child challenged the out-of-court statements made by the child victim as legally insufficient on the issue of identity. Couchman, 3 S.W.3d at 162. He claimed that he was not the same Tony identified in the out-of-court statements made by the child and that the child never identified him as the perpetrator in court. Id. The court of appeals found the evidence sufficient based on (1) the child s testimony that Tony had touched her in an area where it was not okay to touch; (2) a relative s testimony that Tony was the only person the child knew with that name; and (3) an in-court identification of Tony by that relative. Id. at 162-63.

In this case, L.D. told nurse Thurston that Pee pa had put his hands in her panties and she told the interviewer Chamberlain that Poppy had touched her vaginal and anal area many times. L.D. testified that Poppy Leo touched her wee wee three times with his hand, but she did not make an in-court identification of Appellant when asked to do so by the prosecutor. However, L.D. s mother testified that L.D. referred to Appellant as Poppy Leo and she did not refer to any other person as Poppy Leo. We conclude this evidence is legally sufficient to support Appellant s conviction. See Couchman, 3 S.W.3d at 162-63.

Appellant also argues that the evidence is legally insufficient because the sexual assault nurse examiner found no injuries. Because injury is not an element of indecency with a child, we understand Appellant to argue that the evidence is insufficient to prove the element of sexual contact. The Penal Code defines sexual contact as meaning 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.Penal Code Ann. 21.01(2)(Vernon Supp. 2006). L.D. told Chamberlain that Appellant touched her wee wee with his hand many times. Jagow, the sexual assault nurse examiner, informed the jury that fondling often does not result in injury. Thus, in her opinion, L.D. s normal examination was not inconsistent with her outcry of genital touching. Despite the absence of any physical injury, a rational trier of fact could have found beyond a reasonable doubt that Appellant engaged in sexual contact by touching L.D. s genitals with his hands.

Factual Sufficiency

In reviewing the 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). Evidence is factually insufficient if it is so weak that it would be clearly wrong and manifestly unjust to allow the verdict to stand, or the finding of guilt is against the great weight and preponderance of the available evidence. Johnson, 23 S.W.3d at 11. Therefore, the question we must consider in conducting a factual sufficiency review is whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the fact finder s determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. See id. In performing this review, we are to give due deference to the fact finder s determinations. See id. at 8-9; Clewis, 922 S.W.2d at 136. The fact finder is the judge of the credibility of the witnesses and may believe all, some, or none of the testimony. Chambers v. State, 805 S.W.2d 459, 461 (Tex.Crim.App. 1991). Consequently, we may find the evidence factually insufficient only where necessary to prevent a manifest injustice from occurring. See Johnson, 23 S.W.3d at 9, 12; Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App. 1997).

Regarding the issue of identity, we conclude that although L.D. did not make an in-court identification of Appellant, the evidence supporting the verdict is not too weak to support the finding of guilt beyond a reasonable doubt and the contrary evidence is not so strong that the beyond-a-reasonable-doubt standard could not have been met. L.D. told Chamberlain that someone named Poppy touched her wee wee many times while under the blanket at her house. Although L.D. referred to a male relative as Poppy Neal, L.D. testified that Poppy Leo was the person who touched her. L.D. did not refer to anyone else as Poppy Leo and Poppy Neal did not stay at the house with the family. L.D. often watched television with Appellant in the bedroom. We conclude the evidence is factually sufficient to support the jury s finding that Appellant committed the offense.

The evidence is also factually sufficient to prove the sexual contact element. L.D. consistently stated to various adults and to the jury that Poppy or Poppy Leo touched her wee wee with his hands. The lack of any injury does not necessarily indicate that sexual contact did not occur because fondling often does not result in injury. Both L.D. s mother and grandmother noticed a change in L.D. s emotional behavior during the time period when the sexual contact was alleged to have occurred. For these reasons, we overrule Point of Error One.

VOIR DIRE

In Point of Error Two, Appellant complains that the prosecutor misstated the law during voir dire by failing to explain that the offense must be committed against a child younger than seventeen years of age and not the person s spouse. While explaining the definition of sexual contact to the venire, Appellant made a general objection that the prosecutor had misstated the law. On the first occasion, the trial court instructed the venire that the attorneys were allowed to state their opinion of the law, but the jury would receive the law from the court. The court denied Appellant s motion for a mistrial. On the second occasion, Appellant again made only a general objection. The court overruled the objection and denied the request for a mistrial.

To preserve a complaint for appellate review, a party must have presented to the trial court a timely request, objection, or motion that states the specific grounds for the desired ruling if they are not apparent from the context of the request, objection, or motion. Tex.R.App. P. 33.1(a)(1). A general objection is normally insufficient to preserve error. Long v. State, 800 S.W.2d 545, 548 (Tex.Crim.App. 1990); Fierro v. State, 706 S.W.2d 310, 317-18 (Tex.Crim.App. 1986). Further, a defendant s complaint on appeal must comport with the objection raised at trial. Santellan v. State, 939 S.W.2d 155, 171 (Tex.Crim.App. 1997). Appellant s objection that the prosecutor had misstated the law is a general objection which is insufficient to preserve error. It was not apparent from the context of voir dire and the objections that Appellant intended to complain that the prosecutor, while discussing the sexual contact element, had not informed the jury of other elements of the offense of indecency with a child. This general objection does not comport with the complaint presented on appeal that the prosecutor did not inform the jury that the act must be against a child younger than seventeen years of age and not the person s spouse. Point of Error Two is overruled.

OUTCRY TESTIMONY

Appellant challenges the admission of the outcry testimony by two related points of error. In Point of Error Three, Appellant contends that when Chamberlain s inadmissible outcry evidence is eliminated from consideration, the remaining evidence is legally and factually insufficient to support his conviction. He asserts in Point of Error Four that Chamberlain s outcry testimony was inadmissible because she was not the first adult person to whom the child made a statement about the offense.

Article 38.072 of the Texas Code of Criminal Procedure allows admission of certain hearsay testimony in the prosecution of offenses committed against children twelve years of age or younger. See Tex.Code Crim.Proc.Ann. art. 38.072 (Vernon 2005)(the outcry statute). The outcry statute applies only to statements made (1) by the child against whom the offense was allegedly committed, and (2) to the first person, eighteen years of age or older, to whom the child made a statement about the offense. Tex.Code Crim.Proc.Ann. art. 38.072, 2(a). To be admissible under this statute, the child s statement to the witness must describe the alleged offense in some discernible manner and must be more than a general allusion to sexual abuse. See Garcia v. State, 792 S.W.2d 88, 91 (Tex.Crim.App. 1990); Sims v. State, 12 S.W.3d 499, 500 (Tex.App.--Dallas 1999, pet. ref d); Hayden v. State, 928 S.W.2d 229, 231 (Tex.App.--Houston [14th Dist.] 1996, pet. ref d). A trial court has broad discretion in determining the admissibility of outcry statements pursuant to this statute, and we will not disturb the trial court s ruling absent an abuse of discretion. See Garcia, 792 S.W.2d at 92. An abuse of discretion occurs only where the trial court s ruling falls outside the zone of reasonable disagreement. See Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App. 1991)(opinion on reh g).

Appellant does not clearly identify the first person to whom L.D. made a statement about the offense. Appellant simply states that Chamberlain was not the first adult to whom L.D. described the offense and he cites to four pages in the reporter s record. The first page contains nurse Thurston s testimony regarding L.D. s statement that Pee pa had put his hands in her panties. The second page is nurse Jagow s testimony that law enforcement had requested she perform the SANE exam because an allegation of abuse had been made. The third page is a question by Appellant s attorney to nurse Jagow suggesting that allegations had been made by the child s mother or the police. Finally, the fourth page is Chamberlain s testimony that she had spoken with L.D. s grandmother and aunt before she spoke with L.D. Because only Thurston testified about the statement made to her by L.D. and there is nothing in the record to indicate what statements, if any, L.D. made to Jagow, the mother, the grandmother, or the aunt, we will restrict our analysis of the issue to Thurston s testimony about L.D. s statement. See Garcia, 792 S.W.2d at 91-92 (where record did not reflect what statements child had made to her teacher, the trial court did not abuse its discretion by concluding that social worker, as opposed to child s teacher, was outcry witness).

The trial court could reasonably have found that L.D. s statement to Thurston that Pee pa had put his hands in her panties is only a general allusion to sexual abuse because it does not describe whether or how he touched her, and thus, does not describe the offense in some discernible manner. We find no abuse of discretion in the trial court s determination that Chamberlain, not Thurston or some other witness, was the first person to whom L.D. made a statement about the offense. We have already determined that the evidence is both legally and factually sufficient. We overrule Points of Error Three and Four.

FINAL ARGUMENT

In Point of Error Five, Appellant contends that the prosecutor made an improper final argument by stating that there is no doubt what happened to the complainant and that the evidence that we have presented to you proves beyond a reasonable doubt that the Defendant is guilty. Proper jury argument includes four areas: (1) summation of the evidence presented at trial; (2) reasonable deductions drawn from that evidence; (3) answers to opposing counsel s argument; and (4) pleas for law enforcement. McFarland v. State, 845 S.W.2d 824, 844 (Tex.Crim.App. 1992), overruled on other grounds, Bingham v. State, 915 S.W.2d 9 (Tex.Crim.App. 1994). The prosecutor s argument is not improper. Just as defense counsel is permitted to argue that the State failed to meet its burden of proof, a prosecutor is permitted to summarize the evidence and argue that the State met its burden of proving the defendant guilty. The trial court did not err in overruling Appellant s objections. Point of Error Five is overruled. Having overruled each point of error, we affirm the judgment of the trial court.

ANN CRAWFORD McCLURE, Justice

November 9, 2006

Before Chew, C.J., McClure, J., and Barajas, C.J. (Ret.)

Barajas, C.J. (Ret.), not participating

(Do Not Publish)