SAMUEL GASCA DURAN, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM and Opinion Filed November 16, 2010
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-09-00264-CR
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SAMUEL GASCA DURAN, Appellant
V.
THE STATE OF TEXAS, Appellee
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On Appeal from the 366th Judicial District Court
Collin County, Texas
Trial Court Cause No. 366-82255-07
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OPINION
Before Justices FitzGerald, Murphy, and Fillmore
Opinion By Justice Fillmore
        A jury convicted Samuel Gasca Duran of two aggravated sexual assault of a child offenses and one indecency with a child offense. The jury assessed punishment at ninety-nine years' imprisonment on each of the aggravated sexual assault of a child offenses and twenty years' imprisonment on the indecency with a child offense. In three issues, Duran argues the evidence is legally and factually insufficient to support the convictions for aggravated sexual assault of a child   See Footnote 1  and the trial court erred by allowing the sexual assault nurse examiner (SANE) to testify to hearsay statements made by the child. We affirm the trial court's judgment.
Background
 
        C.W., Duran's step-granddaughter, was fifteen years old at the time of trial. C.W. testified that when she was between six and eight years old, she would visit Duran and her grandmother, Joyce Duran, in Princeton, Texas. C.W. testified that she was sleeping on the couch at her grandmother's house when Duran picked her up and took her into his bedroom. According to C.W., Duran checked outside the door of his bedroom to make sure her grandmother was not awake. Duran then pulled her pants down and started touching her vagina. C.W. recalled that when Duran was touching her, he “rubbed” his fingers “back and forth” on her vagina.
        C.W. testified that on a subsequent visit, she was sleeping with her grandmother because she thought Duran would not touch her if she was in her grandmother's room. Duran removed C.W. from her grandmother's bed and took her into his bedroom. Duran again pulled down C.W.'s pants and touched her vagina. C.W. testified that on a third occasion, she was sleeping in her grandmother's room. Duran came into the room and told her to touch his penis. Duran made C.W. “rub up and down” on his penis.
        According to C.W., Duran said he would hurt C.W.'s parents if she told anyone. Until her interview at the Collin County Children's Advocacy Center (CCCAC), C.W. did not tell anyone about Duran's conduct.
        Sergeant Jim Blackburn with the Collin County Sheriff's Office testified he was investigating another case when he learned he might need to schedule a forensic interview for C.W. He observed C.W.'s interview and saw no indications C.W. had been coached. He then set up a medical exam for C.W. to check her physical condition and to answer any questions C.W. might have about her health. Due to the length of time since the incidents, Blackburn did not expect to obtain any medical evidence relating to Duran's touching of C.W. from the medical exam.         Lisa Martinez, a forensic interviewer with CCCAC, interviewed C.W. C.W. told Martinez that when C.W. was between six and eight years old, she would visit her grandmother and Duran. C.W. told Martinez that during one visit, she was sleeping with her grandmother. Duran came into her grandmother's room and took C.W. into his bedroom. C.W. said she was lying on her side facing the wall and Duran was behind her. Duran pulled C.W.'s pants down and put his hand in her private area. C.W. said it was uncomfortable when Duran's hand was in her private area. C.W. also said Duran would get up to check whether C.W.'s grandmother was awake. Duran told C.W. not to tell anyone or he would hurt her parents.
        C.W. also told Martinez about another time when C.W. was sleeping with her grandmother and Duran came into the room. Duran pulled down his jeans, but not his underwear. Duran told C.W. to touch his private area. C.W. told Martinez she was forced to rub Duran's private area and it “felt disgusting.” Duran left when C.W.'s grandmother moved in the bed.
        Martinez testified that C.W. said the touching happened two or three times and then C.W. did not want to visit her grandmother anymore. Martinez said by “private areas,” C.W. meant her vagina and Duran's penis. C.W. said a “private area” was used to “go to the bathroom” and identified the area on an anatomical drawing. According to Martinez, C.W. was consistent in telling what happened and was able to provide sensory, surrounding, and chronological details of the incidents. Martinez saw no indications C.W. had been coached.
        Beth Hudson, the SANE, testified she performed a medical examination of C.W. During the verbal history portion of the exam, C.W. told Hudson that when she was seven or eight, Duran touched her on her private part. According to Hudson, C.W. said Duran put his fingers inside her private part on two or three occasions. Hudson did not expect to find any medical evidence during the exam due to the amount of time that had passed since the incidents. However, there could have been evidence of trauma even after six years.
        Blackburn testified he interviewed Duran, and Duran described an incident where he touched C.W.'s vaginal area. According to Duran, he thought C.W. had either spilled Kool-Aid or urinated on herself. He touched C.W. and then brought his hand to his face. He decided it was Kool-Aid.
        Joyce Duran testified she married Duran in 1989. When C.W. was five or six years old, she told Joyce that she might have received a “bad touch.” Joyce confronted Duran, who said C.W. fell asleep while watching television. Duran said he picked up C.W. and noticed she was wet. He put his hands between C.W.'s legs and then to his nose to see if C.W. had urinated. Joyce confirmed that she and Duran slept in separate bedrooms and that C.W. would sleep on the couch or with Joyce when she visited.
        The jury convicted Duran of two aggravated sexual assault of a child offenses and one indecency with a child offense, and Duran brought this appeal.
Sufficiency of the Evidence
 
        In his first two issues, Duran asserts the evidence is legally and factually insufficient to support the aggravated sexual assault of a child convictions because the only evidence was C.W.'s testimony about incidents that occurred six years before trial and Martinez's and Hudson's testimony about what C.W. told them.
        The Texas Court of Criminal Appeals has overruled Clewis v. State, holding that the Jackson v. Virginia standard is the only standard a reviewing court is to apply in determining whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt. See Brooks v. State, No. PD-0210-09, 2010 WL 3894613, at *1 (Tex. Crim. App. Oct. 6, 2010) (plurality op.). Therefore, we will address Duran's first two issues under the Jackson v. Virginia standard.         In reviewing a challenge to the sufficiency of the evidence, we examine all the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1970); Brooks, 2010 WL 3894613, at *1. We are required to defer to the jury's credibility and weight determinations because the jury is the sole judge of the witnesses' credibility and the weight to be given their testimony. See Jackson, 443 U.S. at 326 (“a court faced with a record of historical facts that supports conflicting inferences must presume-even if it does not affirmatively appear in the record-that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution”).
        As charged in this case, the State was required to prove beyond a reasonable doubt that Duran intentionally or knowingly caused the penetration of the sexual organ of a child younger than fourteen by any means. Tex. Penal Code Ann. § 22.021(a)(1)(B)(i) & (a)(2)(B) (West Supp. 2010). The testimony of a child victim, standing alone, is sufficient to support a conviction for aggravated sexual assault of a child. Tex. Code Crim. Proc. Ann. art. 38.07(a), (b)(1) (West 2005); Garcia v. State, 563 S.W.2d 925, 928 (Tex. Crim. App. [Panel Op.] 1978); Lee v. State, 186 S.W.3d 649, 655 (Tex. App.-Dallas 2006, pet. ref'd). Further, the testimony of the outcry witness is sufficient to support a conviction for aggravated sexual assault of a child. Rodriguez v. State, 819 S.W.2d 871, 873 (Tex. Crim. App. 1991); Saldana v. State, 287 S.W.3d 43, 60 (Tex. App.-Corpus Christi 2008, pet. ref'd); see also Tex. Code Crim. Proc. Ann. art. 38.072 (West Supp. 2010) (testimony of outcry witness that meets statutory criteria is not inadmissible as hearsay); Martinez v. State, 178 S.W.3d 806, 811 (Tex. Crim. App. 2005) (outcry witness may recite child's out-of- court statements concerning offense and testimony is substantive evidence of crime).
        C.W. testified about two occasions when Duran took her into his bedroom, pulled her pants down, and rubbed or touched her vagina with his fingers. Martinez, the outcry witness, testified C.W. told her that Duran took C.W. into his room, pulled her pants down, and placed his fingers in her private area. C.W. told Martinez that she was uncomfortable when Duran's hand was inside her private area. Martinez testified C.W. identified her vagina as her private area.
        The jury heard C.W.'s testimony about the abuse, evidence about the delayed outcry, and testimony about Martinez's and Hudson's questioning of C.W. The jury was the sole judge of the weight and credibility to be given to the evidence, and we may not substitute our judgment for that of the jury. Brooks, 2010 WL 3894613, at *1; Isassi v. State, No. PD-1347-09, 2010 WL 3894792, at *3 (Tex. Crim. App. Oct. 6, 2010). Considering the evidence in the light most favorable to the verdict, we conclude the evidence is sufficient to support Duran's convictions for aggravated sexual assault of a child. We overrule issues one and two.
Hearsay Evidence
 
        In his third issue, Duran asserts the trial court erred by admitting Hudson's testimony about the statements made by C.W. during the medical examination that Duran put his fingers inside C.W's private part on two occasions. Specifically, Duran argues the statements were inadmissible hearsay and the exception to the hearsay rule for statements made for the purpose of medical diagnosis or treatment does not apply. See Tex. R. Evid. 803(4).
        Assuming, but not deciding, that the trial court erred by admitting Hudson's testimony about C.W.'s statements, it is well-established that the improper admission of evidence does not constitute reversible error if the same facts are proved by other properly admitted evidence. Brooks v. State, 990 S.W.2d 278, 287 (Tex. Crim. App. 1999); see also Lane v. State, 151 S.W.3d 188, 193 (Tex. Crim. App. 2004) (“An error [if any] in the admission of evidence is cured where the same evidence comes in elsewhere without objection.”) (quoting Valle v. State, 109 S.W.3d 500, 509 (Tex. Crim. App. 2003)). Hudson's testimony about C.W.'s statement was cumulative of testimony from C.W. and Martinez that was admitted without objection. Accordingly, any error by the trial court in admitting Hudson's testimony was harmless. See Tex. R. App. P. 44.2(b). We overrule Duran's third issue.
        We affirm the trial court's judgment.
 
 
                                                          
                                                          ROBERT M. FILLMORE
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 47
090264F.U05
 
Footnote 1 Duran has not challenged the sufficiency of the evidence to support the conviction for indecency with a child.