Guadalupe Lerma v. The State of Texas--Appeal from 268th District Court of Fort Bend County

Opinion issued March 1, 2007

In The

Court of Appeals

For The

First District of Texas

NOS. 01-06-00083-CR, 01-06-00113-CR, & 01-06-00114-CR

__________

GUADALUPE LERMA, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 268th District Court

Fort Bend County, Texas

Trial Court Cause No. 40504

MEMORANDUM OPINION

A jury found appellant, Guadalupe Lerma, guilty of the offense of aggravated sexual assault of a child (1) and two separate offenses of indecency with a child. (2) After appellant pleaded true to the allegations in three enhancement paragraphs that appellant had three prior felony convictions, the jury assessed his punishment at confinement for thirty-three years in the aggravated sexual assault case, twenty-five years in the first indecency with a child case, and thirty years in the second indecency with a child case. In three issues, appellant contends that the evidence is legally and factually insufficient to support his conviction for the offense of aggravated sexual assault and, in all three cases, that the trial court "erred in granting the State's motion to excuse a venireman for cause over the objection of counsel."

We affirm. Factual and Procedural Background

The complainant, who was fourteen years old at the time of trial, testified that at the end of her school year in 2004, she lived in an apartment with her mother, appellant, who was her mother's boyfriend, and her sister. She stated that, around this time, when she was thirteen years old, appellant tickled her breasts with his hands, both above and under her clothing, and this made her uncomfortable. The complainant explained that appellant would also touch her private part, "the part that you pee out of," both over and under her clothes. In regard to the issue of penetration, the complainant testified as follows:

[State]: Okay. And when he touched your private part with his hands underneath your pants, your shorts and your panties, on your private part, is there like an inside and outside of your private part?

[Complainant]: I don't -

[State]: Do you understand what I'm saying. Is there a part like, on the outside of your private part and then there's a part like it's inside your private part?

[Complainant]: Outside.

[State]: So he would touch you on the outside of your private part?

[Complainant]: Yes.

[State]: Did his fingers ever go on the inside of your private part?

[Complainant]: No.

The complainant stated that she told her pastor, Sandra Cerda, about what appellant was doing and later met with a lady at the Children's Advocacy Center ("CAC"). On cross-examination, the complainant agreed that she did not get along with her mother, she thought her mother was "crazy," and she resented the fact that her mother brought men to their house. The complainant also agreed that after the assault, she wrote a letter to appellant, but the complainant asserted that she did so on her mother's instructions.

Cerda testified that she had, over a period of several years, developed a rapport with the complainant at their church, and the complainant felt that she could confide in Cerda. In May 2004, Cerda noticed that the complainant had become quiet, "had distanced herself from the youth," and was "more solemn." The complainant approached Cerda and asked her to pray for her. When Cerda asked the complainant what was happening, the complainant's eyes "welled up with tears." Several services later, the complainant again asked Cerda to pray for her, and Cerda noticed that the complainant was "still a little distant" and would not "be specific." At Cerda's suggestion, the complainant began to write notes to Cerda, and Cerda became concerned with what was happening in the complainant's home.

Cerda then approached the complainant, and the complainant told her that appellant, her mother's boyfriend, who she referred to as "Lupe," was "touching her inappropriately" "on her chest area" and "in her genitals," usually late at night when her mother was asleep in another room. Cerda then "immediately questioned [the complainant] as far as penetration," and the complainant said, "he did not." The complainant was trembling, weeping, nervous, and "very embarrassed." The complainant further told Cerda that there was one time "when he did lay on her."

On cross-examination, Cerda stated that the complainant had told her that her pajamas were on "when this happened." Cerda agreed that the complainant was emotionally immature. Cerda also agreed that she doubted the truthfulness of the complainant's claim because she "had from time to time in the past accused boys of trying to kiss on her," and would later recant these accusations. After the instant allegations surfaced, Cerda kept her sons away from the complainant. Cerda was also doubtful of the complainant's claim because the complainant had alleged that another person had engaged in sexual contact with her and that she "was real giddy, like not serious" when telling Cerda about this contact. Based on these incidents, Cerda stated that she questioned the complainant's credibility. However, Cerda agreed that when making the instant allegations against appellant, the "emotional part of [the complainant] was very different." Cerda reported the complainant's allegations to the complainant's school counselor.

Valeria Brock, a forensic interviewer at the CAC and a former investigator for Children's Protective Services ("CPS"), testified that she investigated the sexual assault, she observed visits between the complainant's mother and the complainant at CPS's offices, and during these visits the complainant's mother would try to get the complainant to recant her allegations against appellant.

Jennifer Lemke, a former forensic interviewer at the CAC, testified that, on May 21, 2004, she conducted a videotaped forensic interview of the complainant. Lemke stated that the complainant, who had a difficult time understanding her questions, told Lemke that appellant was her mother's boyfriend and he tickled her on her breasts and "private part," which the complainant described as the part "she pees from." The complaintant also told her that the touching was under her clothes and appellant penetrated her vagina with his hand. On cross-examination, Lemke agreed that the complainant seemed "a little bit behind" for her age and it was difficult to get a specific, accurate answer from the complainant in response to some of her questions. The State then introduced a copy of the videotaped interview into evidence.

Denise Volet, a licensed professional counselor, testified that she provided counseling services to the complainant and her mother from July 2004 to February 2005. The complainant told Volet that appellant touched her on her chest and private part. Volet explained that although the complainant's mental abilities were below her age and grade equivalent, her outcry remained fairly consistent. On cross-examination, Volet agreed that although the complainant had told her that appellant touched her on top of and under her clothing, the complainant never told Volet that appellant had penetrated her. Volet admitted that during her sessions with the complainant, she had attempted to address, among other things, the complainant's behavioral problems of lying and being manipulative. However, in her opinion, the complainant was not lying regarding her allegations against appellant.

Gloria Adami, the complainant's cousin, testified that while she was walking in the park with the complainant after the incident, the complainant told her that appellant did not do anything to her. Under-cross examination, Adami asserted that the complainant had instead made these statements, at least in part, during a telephone conversation.

Legal and Factual Sufficiency

In his first and second issues, appellant argues that the evidence is legally and factually insufficient to support his conviction for aggravated sexual assault of a child because the complainant testified that appellant "did not penetrate her sexual organ."

We review the legal sufficiency of the evidence by viewing 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 offense beyond a reasonable doubt. Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex. Crim. App. 2005). The trier of fact is the sole judge of the weight and credibility of the evidence. Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim. App. 2000). Thus, when performing a legal sufficiency review, we may not reevaluate the weight and credibility of the evidence and substitute our judgment for that of the fact finder. Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999).

In a factual sufficiency review, we view all the evidence in a neutral light, both for and against the finding, and set aside the verdict if the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, i.e., that the jury's verdict seems "clearly wrong and manifestly unjust," or the proof of guilt, although legally sufficient, is nevertheless against the great weight and preponderance of the evidence. Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006). In performing a factual sufficiency review, we are to give deference to the fact finder's determinations, including the determinations involving the credibility and demeanor of witnesses. Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). We may not substitute our judgment for the fact-finder's. Watson, 204 S.W.3d at 414-15.

A person commits the offense of aggravated sexual assault of a child (3)

if the person intentionally or knowingly causes the penetration of the anus or sexual organ of a child by any means, and the child is younger than fourteen years of age. Tex. Pen. Code Ann. 22.021(a)(1)(B)(i), (a)(2)(B) (Vernon Supp. 2006). Proof of the slightest penetration is sufficient. Nilsson v. State, 477 S.W.2d 592, 595 (Tex. Crim. App. 1972); Jordan-Maier v. State, 792 S.W.2d 188, 190 (Tex. App.--Houston [1st Dist.] 1990, pet. ref'd).

Appellant's only argument regarding the legal and factual sufficiency of the evidence is that the complainant "specifically stated that appellant never penetrated her female sexual organ." The complainant, during direct examination, did agree that appellant would touch her "on the outside of [her] private part" and that appellant did not place his fingers "on the inside of [her] private part." However, prior to answering the State's questions, the complainant expressed some confusion regarding what constituted the "inside" and "outside" of her private part.

The complainant also clearly stated during her direct examination that appellant tickled her genitals and touched her private part, which she described as "the part that you pee out of," both outside and inside her clothing. Lemke, the forensic interviewer, noted that although she had a difficult time interviewing the complainant because of a variety of factors, the complainant had reported to her that appellant touched her "under her clothes" and "penetrated her vagina with his hand." See Villalon v. State, 791 S.W.2d 130, 133 (Tex. Crim. App. 1990) (stating that court should consider "all of the evidence, both outcry and non-outcry, admitted at trial" in determining whether evidence of penetration sufficient). Lemke's testimony is supported by the complainant's videotaped interview, which was introduced into evidence, in which the complainant states that appellant had penetrated her private part with his fingers. Furthermore, Cerda testified that the complainant told her that appellant had touched her "in her genitals."

Viewing all the evidence in the light most favorable to the jury's verdict, we conclude that a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Accordingly, we hold that the evidence is legally sufficient to support appellant's conviction for the offense of aggravated sexual assault of a child.

In regard to the factual sufficiency challenge, again, appellant's only complaint is that the complainant, on direct examination, denied that appellant penetrated her sexual organ. Moreover, Cerda, the complainant's pastor, testified that the complainant denied that appellant had penetrated her, but also told her that appellant touched her "in her genitals." Cerda testified that she doubted the complainant's credibility, but conceded that the complainant behaved differently when she reported the sexual abuse by appellant. Although Volet stated that the complainant never reported to her that appellant penetrated her, Volet never asked the complainant whether penetration had occurred. Finally, Adami testified that the complainant had recanted the allegations against appellant, but on cross-examination Adami changed her testimony as to when the complainant made these alleged recantations.

The jury heard the above testimony, as well as the testimony from Lemke regarding penetration, and watched the videotaped interview in which the complainant stated that appellant penetrated her private part with his fingers. The jury also heard Lemke's testimony that, prior to trial, the complainant's mother had pressured the complainant to recant her allegations against appellant. As the sole judge of the credibility of witnesses and the weight to be given to their testimony, the jury was entitled to resolve any credibility issues against appellant. See Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000); Cain, 958 S.W.2d at 408-09; Robles v. State, 104 S.W.3d 649, 652 (Tex. App.--Houston [1st Dist.] 2003, no pet.). The jury was also free to believe or disbelieve the defensive theory that the complainant made false accusations against appellant because she resented the fact that her mother brought men to their house and because she desired a different living environment. We conclude, viewing the evidence neutrally, that the evidence is not so weak that the verdict is clearly wrong or manifestly unjust or that the proof of guilt is against the great weight and preponderance of the evidence. Accordingly, we hold that the evidence is factually sufficient to support appellant's conviction for the offense of aggravated sexual assault of a child.

We overrule appellant's first and second issues.

Venireman Excused for Cause

In his third issue, appellant argues that the trial court erred in granting the State's challenge for cause of juror number eleven because her statement that she had a problem with the maximum length of the sentence for the offense did "not indicate a bias toward the law or a party and [was] therefore an insufficient reason to excuse her for cause."

To show error in a trial court's grant of a state's challenge of a potential juror for cause, a defendant must demonstrate one of two things: (1) the trial judge applied the wrong legal standard in sustaining the challenge or (2) the trial judge abused his discretion in applying the correct legal standard. Jones v State, 982 S.W.2d 386, 388 (Tex. Crim. App. 1998). The erroneous excusing of a potential juror will call for reversal only if the record shows that the error deprived the defendant of a lawfully constituted jury. Id. at 394.

During the State's voir dire, the State asked the panel members if something would keep them from being fair and impartial jurors. Juror number twenty-four stated, "I have a problem with the length of the sentence, the maximum length." When pressed as to whether he could consider the maximum sentence in this kind of case "under any circumstances," juror number twenty-four again stated, "I have a problem with that. I work in the prison ministry and life is a long time." He then affirmatively stated, "I could not consider that length of time." Juror number eleven then immediately stated, "I have the same problem and I am also active in the prison ministry." The trial court granted the State's challenges for cause as to both jurors eleven and twenty-four on the ground that they could not consider the full range of punishment.

A challenge for cause may be made by the State if the potential juror has a "bias or prejudice against any phase of the law upon which the State is entitled to rely for conviction or punishment." Tex. Code Crim. Proc. Ann. art. 35.16(b)(3) (Vernon 2006). Any prospective juror unable to consider the maximum penalty allowed by law for all legally eligible candidates is biased or prejudiced against law and, therefore, subject to a challenge for cause. Fuller v. State, 829 S.W.2d 191, 200 (Tex. Crim. App. 1992), overruled on other grounds by Castillo v. State, 913 S.W.2d 529 (Tex. Crim. App. 1995). We give great deference to the trial judge, who is present during voir dire and can observe the demeanor of the venireperson and hear the tone of his voice. See Feldman v. State, 71 S.W.3d 738, 744 (Tex. Crim. App. 2002). When a veniremember either vacillates or equivocates on her ability to follow the law, an appellate court defers to the trial court's judgment on the challenge for cause. Granados v. State, 85 S.W.3d 217, 231 (Tex. Crim. App. 2002).

Here, the record shows that juror number eleven, in accord with juror number twenty-four, stated that she would be unable to consider the full range of punishment under any circumstances, thus showing bias or prejudice against a punishment law on which the State was entitled to rely. Accordingly, we hold that the trial court did not abuse its discretion in granting the State's challenge for cause as to juror number eleven.

We overrule appellant's third issue.

Conclusion

We affirm the judgment of the trial court.

Terry Jennings

Justice

Panel consists of Chief Justice Radack and Justices Jennings and Bland.

Do not publish. See Tex. R. App. P. 47.2(b).

1. See Tex. Pen. Code Ann. 22.021(a)(1)(B)(i), 22.011(c)(1) (Vernon Supp. 2006). Trial court cause no. 40504; appellate cause no. 01-06-00083-CR.

2. See id. 21.11 (Vernon 2003). Trial court cause no. 40504; appellate cause nos. 01-06-00113 & 01-06-00114-CR.

3. "Child" means a person younger than 17 years of age who is not the spouse of the actor. See Tex. Pen. Code Ann. 22.011(c)(1).