Espitia, Hector J. v. The State of Texas--Appeal from 232nd District Court of Harris County

Affirmed and Opinion filed December 16, 2003.

In The

Fourteenth Court of Appeals

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NO. 14-02-01172-CR

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HECTOR J. ESPITIA, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 232nd District Court

Harris  County, Texas

Trial Court Cause No. 898,187

O P I N I O N

Appellant, Hector J. Espitia, was convicted by a jury of aggravated sexual assault of a child. The jury sentenced appellant to eight years= confinement in the Institutional Division of the Texas Department of Criminal Justice and assessed a fine of $10,000. On appeal, appellant challenges the factual sufficiency of the evidence supporting his conviction. We affirm.

In March of 1995, the complainant, then ten years old, was an overnight guest of appellant=s daughter. The complainant testified at trial describing repeated visits by appellant during which she was abused. She began by explaining that she awoke sometime during the night to discover that her pants and underwear had been removed and were on the floor. The complainant put her pants and underwear on and returned to bed. Through an open door, the complainant stated that she could see appellant standing in his bedroom. Sometime later, appellant entered his daughter=s bedroom and removed the complainant=s pants and underwear. The complainant testified that she pretended to be asleep while appellant lowered his own pants and placed his penis inside her vagina. She stated that the contact did not last very long, but it was very painful. After appellant left the bedroom, the complainant got dressed again. Thereafter, however, the complainant testified that appellant reentered the bedroom, turned her over, removed her pants and underwear, and placed his penis in her anus.

The complainant did not cry out during appellant=s visits to the bedroom and her friend, appellant=s daughter, never awoke during the assault. After dressing, the complainant, feigning stomach pain, went into the living room to call her mother on the telephone. When questioned by appellant as to what she was doing, the complainant said her stomach hurt and that she had been having bad dreams. Appellant allowed the complainant to call her mother, who subsequently picked her up. Upon returning home, the complainant noticed blood in her underwear; however, the complainant did not tell her mother about the assault.

In March 2000, six years later, the complainant told her boyfriend about the abuse. At his insistence, the complainant told her mother about the abuse. The complainant=s mother then confronted appellant and his wife. Appellant denied the abuse. After discussions with the family priest and attorney, the complainant decided to notify the authorities. In October 2001, the complainant filed a complaint against appellant with the Houston Police Department and an investigation was launched. In addition to the police questioning, the complainant received counseling from the Houston Area Women=s Center and was subjected to medical exams. An indictment was returned in February 2002 charging appellant with sexual assault. The indictment alleged the assault was perpetrated when appellant penetrated the complainant=s sexual organ and anus with his sexual organ.

In two points of error, appellant contends the trial court erred in denying his motion for instructed verdict because the evidence is factually insufficient to establish penetration of the complainant=s sexual organ and anus. However, a motion for an instructed verdict is an attack on the legal sufficiency of the evidence. Garcia v. State, 17 S.W.3d 1, 4 (Tex. App.CHouston [1st Dist.] 1999, pet. ref=d). It is inappropriate, therefore, to assert the trial court erred in denying a motion for instructed verdict because the evidence was factually insufficient. Because appellant seeks only a reversal, and not an acquittal, we will construe appellant=s issues as a conventional attack on the factual sufficiency of the evidence.

When reviewing claims of factual insufficiency, it is our duty to examine the fact-finder=s weighing of the evidence. Clewis v. State, 922 S.W.2d 126, 133-34 (Tex. Crim. App. 1996). There are two ways in which evidence can be factually insufficient: (1) the evidence is so weak as to be clearly wrong or manifestly unjust, or (2) the finding of a vital fact is so contrary to the great weight and preponderance of the evidence as to be clearly wrong. Zulianiv. State, 97 S.W.3d 589, 593 (Tex. Crim. App. 2003). Determining which standard applies depends upon whether the complaining party had the burden of proof at trial. Id. If the complaining party did not have the burden of proof, then the Amanifestly unjust@ standard applies. Id. On the other hand, if the complaining party had the burden of proof, then the Aagainst the great weight and preponderance@ standard applies. Id. Under the Texas Court of Criminal Appeals= modified approach, if the defendant challenges the factual sufficiency of the elements of the offense, even though the State had the burden of proof, we must review the evidence using both standards. Id. Thus, when reviewing factual sufficiency challenges, we must determine Awhether a neutral review of all of the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury=s determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof.@ Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000).

One means of committing aggravated sexual assault is if a person intentionally or knowingly causes the penetration of the anus or sexual organ of a child by any means. Tex. Pen. Code Ann. ' 22.021(a)(1)(B) (Vernon Supp. 2003).

Appellant first argues that an absence of physical evidence makes the evidence factually insufficient to show he penetrated the complainant=s vagina or anus. The record reflects that the complainant had engaged in consensual sex sometime before the medical examination was performed. The medical examination revealed the complainant had sustained some vaginal trauma; however, the examining physician was unable to conclude whether the trauma was the result of a rape or consensual sex. In regard to anal penetration, appellant cites the nonspecific findings of the anal examination. Additionally, appellant reminds this court that he denied assaulting the complainant when confronted by her mother and testified in his own defense, both on direct and cross examination, that he did not assault the complainant.

Notwithstanding the lack of physical evidence, the record contains testimony supporting the jury=s verdict. The complainant testified that appellant penetrated both her sexual organ and her anus with his sexual organ. Moreover, Officer Frost of the Houston Police Department=s Sexual Abuse Unit explained that a Adelayed outcry@ by victims of sexual abuse is common because victims often fear they will not be believed. Julia Wolf, Director of Therapy Services for the Children=s Assessment Center, testified that delayed disclosure by a victim of abuse does not mean the victim is lying. Renee Vandervennent, a Houston Area Women=s Center counselor, testified that the complainant=s continuing nightmares and fear are consistent with sexual abuse. Finally, Dr. Lahoti, the examining physician, described the complainant=s Atearful and withdrawn@ demeanor during the physical examination. She also explained that it is not uncommon for a sexual abuse victim to have a normal physical exam. Appellant does not direct us to any authority indicating that physical evidence is a necessity to sustain a conviction. In fact, the Court of Criminal Appeals has previously held that a victim=s testimony, alone, is sufficient evidence of penetration. Garcia v. State, 563 S.W.2d 925, 928 (Tex. Crim. App. 1978).[1]

With respect to factual sufficiency, appellant cites the aforementioned facts to show that he did not assault the complainant. The jury, however, is the sole judge of the facts, the credibility of witnesses, and the weight to be given the evidence. Wyatt v. State, 23 S.W.3d 18, 30 (Tex. Crim. App. 2000); Beckham v. State, 29 S.W.3d 148, 152 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d). Therefore, the jury may believe or disbelieve all or part of any witness=s testimony. Jones v. State, 984 S.W.2d 254, 258 (Tex. Crim. App. 1995). Reconciliation of any conflicts in the evidence falls within the exclusive province of the jury. Heiselbetzv. State, 906 S.W.2d 500, 504 (Tex. Crim. App. 1995).

The jury was entitled to determine the weight to be given the evidence and the credibility of the witnesses and whether or not to believe the testimony of any witness. By its verdict, the jury apparently chose to believe the complainant=s version of the events, not the appellant=s. Appellant argues that it is a manifest injustice to allow this conviction to stand; however, a jury=s verdict is not manifestly unjust merely because it resolved conflicting views in favor the State. Cain v. State, 958 S.W.2d 404, 410 (Tex. Crim. App. 1997). Viewing the evidence without the prism of in the light most favorable to the prosecution, we find the evidence factually sufficient to support the verdict. Appellant=s point of error is overruled.

The judgment of the trial court is affirmed.

/s/ J. Harvey Hudson

Justice

Judgment rendered and Opinion filed December 16, 2003.

Panel consists of Justices Yates, Hudson, and Fowler.

Do Not Publish C Tex. R. App. P. 47.2(b).

[1] Similarly, the State points out that the Code of Criminal Procedure does not impose a corroboration requirement on offenses perpetrated against persons age 17 or under. Tex. Code Crim. Proc. Ann. Art. 38.07(b) (Vernon Supp. 2003).