Zigakol, Mercy Barigom v. The State of Texas--Appeal from 184th District Court of Harris County

Affirmed and Opinion filed March 16, 2004

Affirmed and Memorandum Opinion filed November 10, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-04-01168-CR

NO. 14-04-01169-CR

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MERCY BARIGOM ZIGAKOL, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 184th District Court

Harris County, Texas

Trial Court Cause Nos. 950,172 & 950,173

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M E M O R A N D U M O P I N I O N

Appellant Mercy Barigom Zigakol challenges her convictions for aggravated sexual assault of a child in cause number 950,172, and promotion of child pornography in cause number 950,173. A jury found appellant guilty of both charges and assessed punishment at thirty years confinement for the aggravated sexual assault charge and ten years confinement for the promotion of child pornography charge. Appellant asserts five issues on appeal challenging one of the trial court s evidentiary rulings and the legal and factual sufficiency of the evidence supporting her convictions. We affirm.

 

I. Factual and Procedural Background

In October of 2002, Michael Lane and appellant, Lane s common-law wife at the time, went to the home of Lane s cousin, Sherry Ferrell, in Bryan, Texas. When they arrived, it was around 1:00 a.m. Appellant immediately asked to see A.F., the complainant in this case, who was ten years old at the time. Ferrell, who is A.F. s mother, responded that A.F. was in her bedroom asleep. Appellant went to A.F. s bedroom, awoke her, and brought her downstairs. In the meantime, Lane had asked Ferrell if A.F. could come to Houston with them and spend the night in their apartment. Ferrell replied that A.F. could make that decision herself. A.F. agreed to go with them after appellant promised her a new doll.

After they arrived at the apartment, A.F. discovered that there was not a new doll for her. A.F. went to sleep on the couch. Shortly thereafter, appellant came into the living room, awoke A.F., and told her to take off all of her clothes and go into Lane s bedroom. Appellant moved their infant daughter from the bed into a crib adjacent to the bed. Lane undressed and appellant directed A.F. and Lane to get into various sexual positions as she took photographs of them. The photos depict Lane performing sexual acts on A.F. and forcing her to perform oral sex on him. All of the photographs are taken from different angles with some of the photos being quite close up. The following day, appellant took A.F. to the store and bought her a new doll.

Meanwhile, A.F. s younger sister discovered that A.F. was with appellant and Lane, and began to cry and plead that her mother not make her go to appellant s house. When Ferrell questioned this response, the younger daughter revealed that she had seen Lane on top of A.F., who was naked at the time. She also stated that bad things had happened to her sister. Ferrell, very concerned, called appellant s home, but appellant s girlfriend was already on the way to Ferrell s home with A.F. When A.F. returned home, she confirmed the heinous acts, saying that appellant forced her to engage in oral sex and vaginal intercourse with Lane. Ferrell called the police in Bryan, Texas, where she was living with her daughters at the time, and the Bryan Police Department contacted the Houston Police Department. Officer Valenta of the Houston Police Department then executed a search warrant for appellant s apartment and recovered, among other things, several photographs. The photographs show the unclothed A.F. alone, and they show Lane engaged in various sexual acts with A.F. According to A.F. s mother, the photographs are of A.F. when she was between six and ten years old.

Appellant was arrested, and the State charged her with aggravated sexual assault of a child. In cause number 950,172, the indictment alleged in pertinent part as follows:

the Defendant, heretofore on or about October 27, 2002, did then and there unlawfully, intentionally and knowingly cause the sexual organ of AF, a person younger than 14 years of age and not the spouse of the defendant, to contact the sexual organ of Michael Lane.

Appellant also was charged with promotion of child pornography in cause number 950,173. The indictment alleged in pertinent part that:

the Defendant, heretofore on or about October 27, 2002, did then and there unlawfully, intentionally and knowingly promote by manufacture visual material containing a film image, namely a photograph that visually depicts a child younger then eighteen years of age, at the time the image was made, who is engaging in sexual conduct, to wit: actual sexual intercourse, and the Defendant knew that the material containing the image depicted the child engaging in the conduct of actual sexual intercourse.

The jury found appellant guilty in both cause numbers and assessed punishment at thirty years confinement for the aggravated sexual assault charge and ten years confinement for the promotion of child pornography charge, both sentences to be served in the Texas Department of Criminal Justice, Institutional Division.

II. Issues Presented

Challenging her convictions, appellant asserts five issues on appeal: (1) the trial court erred by admitting hearsay testimony under the excited-utterance exception; (2)-(3) the evidence presented at trial is legally and factually insufficient to support her conviction of aggravated sexual assault; and (4)-(5) the evidence presented at trial is legally and factually insufficient to support her conviction of promotion of child pornography. For the reasons explained below, we affirm appellant s convictions. [1]

III. Analysis

A. Did the trial court err by admitting the outcry statement made by the complainant s mother?

In her first issue, appellant contends that Ferrell s testimony regarding A.F. s outcry was inadmissible hearsay. More specifically, appellant claims that the trial court erred by admitting the testimony into evidence because the State failed to notify her that it was calling Ferrell as the outcry witness.

During Ferrell s direct examination, the trial court allowed her to testify about statements her younger daughter made about seeing appellant on top of A.F. while A.F. was naked. Ferrell testified, She told me that he told her to go outside and look watch for [appellant s girlfriend]. She said it took too long. She came back inside. That he was on her sister. In response to further questioning, Ferrell testified that her younger daughter told her that [s]he saw her sister naked and [Lane] was on top of her sister.

Appellant objected to this testimony on hearsay grounds, but never objected to improper notice. The State acknowledges that it failed to give notice that Ferrell was the outcry witness, and instead listed two other witnesses in the notice. See Tex. Code Crim. Proc. Ann. art. 38.072 (Vernon 2005) (outlining the minimum requirements for the notice of intent to use outcry testimony).[2] However, appellant has failed to preserve this point of error for appeal because she did not object at trial on grounds of improper notice. Failure to object to improper outcry notice waives the right to raise it on appeal. See Garcia v. State, 907 S.W.2d 635, 637 (Tex. App. Corpus Christi 1995), aff d, 981 S.W.2d 683 (Tex. Crim. App. 1998) (holding that State s failure to comply with outcry notice requirements was waived by appellant s failure to raise objection on these grounds at trial); Skidmore v. State, 838 S.W.2d 748, 753 (Tex. App. Texarkana 1992, pet. ref d) (holding that appellant waived argument that testimony was inadmissible for failure to meet notice requirements of outcry statute where objection at trial alleged that the testimony did not meet qualifications for outcry, but did not specifically raise issue of State s notice to defendant). Accordingly, appellant has waived any complaint about the State s failure to give proper notice of the outcry witness. See Tex. R. App. P. 33.1.

In any event, even if appellant had preserved error, she has not suffered any harm. The purpose of the notice requirement in article 38.072 is to prevent the defendant from being surprised by the introduction of the outcry-hearsay testimony. See Gottlich v. State, 822 S.W.2d 734, 737 (Tex. App. Fort Worth 1992, pet. ref d); Brown v. State, 756 S.W.2d 793, 797 (Tex. App. Houston [14th Dist.] 1988, pet. ref d). The record is devoid of any evidence or indication that appellant was surprised by Ferrell s testimony; as such, appellant s case was not prejudiced by the admission of this evidence. The outcry testimony offered through Ferrell was no different from the testimony offered by A.F. herself.

In addition, appellant was allowed to review the state s evidence file, had an opportunity to cross-examine the witness at trial, and appellant has not shown how she was surprised by the outcry testimony or how such testimony impeded her defense. Thus, even if appellant had preserved her complaint, any error was harmless. See Mayes v. State, 816 S.W.2d 79, 88 (Tex. Crim. App. 1991) (holding that error in admitting evidence can be rendered harmless if other evidence at trial is admitted without objection and it proves the same fact that the inadmissible evidence was offered to prove); Upton v. State, 894 S.W.2d 426 (Tex. App. Amarillo 1995, pet. ref d) (holding that violation of procedural article governing outcry testimony was harmless error); Fetterolf v. State, 782 S.W.2d 927, 930 (Tex. App. Houston [14th Dist.] 1989, pet. ref d) (explaining that, where appellant failed to show surprise by the hearsay testimony, appellant's case was not prejudiced by admission of the hearsay testimony, even though the State failed to comply with the notice requirement under 38.072); Gabriel v. State, 973 S.W.2d 715 (Tex. App. Waco 1998, no pet.) (holding that error in admitting outcry statement was harmless where record did not reflect that defendant was surprised; it did not reflect any prejudice from state s failure to give notice, and during trial defendant s attorney had an opportunity to question both complainant and complainant s mother). Accordingly, we overrule appellant s first issue.

B. Is the evidence legally and factually sufficient to support appellant s conviction for aggravated sexual assault of a child?

In her second and third issues, appellant contends that the evidence is legally and factually insufficient to support her conviction for aggravated sexual assault of a child because the State did not establish that appellant acted as a party to the sexual assault or that appellant acted with intent to promote or assist in the commission of the offense.

In evaluating a legal-sufficiency challenge, we view the evidence in the light most favorable to the verdict. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). The issue on appeal is not whether we, as a court, believe the State=s evidence or believe that appellant s evidence outweighs the State=s evidence. Wicker v. State, 667 S.W.2d 137, 143 (Tex. Crim. App. 1984). The verdict may not be overturned unless it is irrational or unsupported by proof beyond a reasonable doubt. Matson v. State, 819 S.W.2d 839, 846 (Tex. Crim. App. 1991). The trier of fact, is the sole judge of the credibility of the witnesses and of the strength of the evidence. Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Crim. App. 1999). The trier of fact may choose to believe or disbelieve any portion of the witnesses testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). When faced with conflicting evidence, we presume the trier of fact resolved conflicts in favor of the prevailing party. Turro v. State, 867 S.W.2d 43, 47 (Tex. Crim. App. 1993). Therefore, if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, we must affirm. McDuff v. State, 939 S.W.2d 607, 614 (Tex. Crim. App. 1997).

In contrast, when evaluating a challenge to the factual sufficiency of the evidence, we view all the evidence in a neutral light and inquire whether the trier of fact was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004). A reviewing court may find the evidence factually insufficient in two ways. Id. First, when considered by itself, the evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt. Id. Second, after weighing the evidence supporting the verdict and the evidence contrary to the verdict, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met. Id. at 484B85. In conducting the factual-sufficiency review, we must employ appropriate deference so that we do not substitute our judgment for that of the fact finder. Id. at 481B82. Our evaluation should not intrude upon the fact finder=s role as the sole judge of the weight and credibility given to any witness=s testimony. Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). In conducting a factual-sufficiency review, we must discuss the evidence appellant claims is most important in allegedly undermining the verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).

 

The jury was charged as follows:

The defendant, Mercy Barigom Zigakol, stands charged by indictment with the offense of aggravated sexual assault, alleged to have been committed on or about the 27th day of October, 2002, in Harris County, Texas. The defendant has pleaded not guilty.

All persons are parties to an offense who are guilty of acting together in the commission of the offense. A person is criminally responsible as a party to the offense if the offense is committed by her conduct of another for which she is criminally responsible, or by both.

A person is criminally responsible for an offense committed by the conduct of another if, acting with intent to promote or assist the commission of the offense, she solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense. Mere presence alone will not constitute one a party to an offense.

Now, if you find from the evidence beyond a reasonable doubt that on or about October 27, 2002, in Harris County, Texas, the defendant, Mercy Barigom Zigakol, did then and there unlawfully, intentionally, or knowingly cause the sexual organ of A.F., a person younger than fourteen years of age and not the spouse, to contact the sexual organ of Gregory Lane, also known as Michael Lane . . . and that the defendant, Mercy Barigom Zigakol, with the intent to promote or assist the commission of the offense, if any, solicited, encouraged, directed, aided or attempted to aid Gregory Lane, also known as Michael Lane, to commit the offense, if she did, then you will find the defendant guilty as charged in the indictment.

The law in Texas provides that a person commits the offense of aggravated sexual assault if the person intentionally or knowingly causes the sexual organ of a child to contact the sexual organ of another person, including the defendant, and if the victim is younger than fourteen years of age. See Tex. Pen. Code Ann. 22.021 (Vernon Supp. 2005). Moreover, a person is criminally responsible as a party to an offense if the offense is committed by her own conduct, by the conduct of another for which she is criminally responsible, or by both. See Tex. Pen. Code Ann. 7.01 (Vernon 2003).

The evidence presented in this case is both legally and factually sufficient to support appellant s conviction of aggravated sexual assault. Both the complainant and the complainant s mother (Ferrell) testified in regard to appellant s involvement in the sexual assault. On the night in question, appellant and Lane arrived at A.F. s house together but it was appellant that immediately asked to see A.F. Appellant went to A.F. s bedroom, woke her up, and brought her downstairs, with the intent to bring her back to their apartment. A.F. agreed to go with appellant and Lane after appellant promised her a new doll.

After they arrived at Lane s and appellant s home in Houston, A.F. found that they did not have a new doll for her and she went to sleep on the couch. Shortly thereafter, appellant came into the living room, awoke A.F., and told her to take off all of her clothes and go into Lane s bedroom. Appellant moved their infant daughter from the bed into a crib adjacent to the bed. Lane undressed and appellant directed A.F. and Lane to get into various sexual positions as appellant took photographs. The photos depict Lane performing sexual acts on A.F. and forcing her to perform oral sex on him. All of the photographs are taken from different angles, and some were taken at very close range. The following day, appellant took A.F. to the store and bought her a new doll. All of this testimony was provided by A.F. herself and demonstrates that appellant encouraged, aided, and directed the sexual acts. See Thompson v. State, 697 S.W.2d 413, 416 (Tex. Crim. App. 1985).

Appellant asks us to reverse her conviction because the State did not offer physical evidence to corroborate A.F. s testimony and because A.F was not asked when the alleged offenses took place. With regard to appellant s challenge to A.F. s credibility, we begin by noting that [t]he jury is the exclusive judge of the credibility of the witnesses and of the weight to be given testimony. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000) (en banc) (citing Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996)). A.F., who was eleven years old when she testified, stated that she knew the difference between telling the truth and telling a lie, and that she understood how important it was for her to tell the truth. When appellant cross-examined her, A.F. repeatedly stated that she was not lying. The jury, as the factfinder, could have believed A.F. s testimony and wholly disbelieved any of the defense s evidence. See Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986); Marc v. State, 166 S.W.3d 767 (Tex. App. Fort Worth 2005, pet. ref d) (holding that jury could have believed victim so as to support conviction for aggravated sexual assault even though defendant argued that the victim s veracity was suspect because she was a prostitute and drug addict and convicted felon); Sanders v. State, 834 S.W.2d 447, 449 (Tex. App. Corpus Christi 1992, no pet.).

The testimony of A.F, standing alone, is sufficient to support appellant s conviction of aggravated sexual assault of a child. Tex. Code Crim. Pro. Ann. 38.07; see Jensen v. State, 66 S.W.3d 528, 534 (Tex. App. Houston [14th Dist.] 2002, pet. ref d) (stating that the testimony of a victim, standing alone, even when the victim is a child, is sufficient to support a conviction for sexual assault); Satterwhite v. State, 499 S.W.2d 314, 315 (Tex. Crim. App. 1973) (holding that victim s testimony that appellant placed his male organ into her private parts was sufficient to sustain conviction); Sanchez v. State, 479 S.W.2d 933, 940 (Tex. Crim. App. 1972) (holding that victim s affirmative answer to question about whether defendant put his private part in your private part, along with corroborating medical testimony, was sufficient to establish penetration); West v. State, 121 S.W.3d 95, 111 (Tex. App. Fort Worth 2003, pet. ref d) (stating that victim s testimony is sufficient to sustain conviction of sexual assault); Kimberlin v. State, 877 S.W.2d 828, 831 (Tex. App. Fort Worth 1994, pet. ref'd) (holding that a child victim s outcry statement alone can be sufficient to support a conviction for aggravated sexual assault); Butler v. State, 875 S.W.2d 804, 806 (Tex. App. Beaumont 1994, no pet.) (finding that scientific and other corroborating evidence was not required for aggravated sexual assault given that victim told her niece of the sexual assault only hours after the attack) (emphasis added). We conclude the evidence is legally and factually sufficient to support appellant s conviction of aggravated sexual assault of a child. Accordingly, we overrule appellant s second and third issues.

C. Is the evidence legally and factually sufficient to support appellant s conviction of promotion of child pornography?

In her fourth and fifth issues, appellant contends that the evidence is legally and factually insufficient to support her conviction for promotion of child pornography. Appellant testified that she was not present, did not take the photographs, and does not even know how to operate a digital camera.

A person commits an offense of promotion of child pornography if:

(1) the person knowingly or intentionally possesses visual material that visually depicts a child younger than 18 years of age at the time the image of the child was made who is engaging in sexual conduct; and

(2) the person knows that the material depicts the child as described by Subdivision (1).

Tex. Pen. Code Ann. 43.26 (Vernon 2003). The jury was charged according the above definition. The jury evaluated all of the evidence presented at trial, including both A.F. s testimony and appellant s testimony. Applying the standards of review outlined above in issues two and three, the jury, as the fact finder, could have believed A.F. s testimony and wholly disbelieved any of the defense s evidence. See Sharp, 707 S.W.2d at 614. The jury is the exclusive judge of the credibility of the witnesses and of the weight to be given testimony. Wesbrook, 29 S.W.3d at 111. A.F. was an eyewitness and the complainant. She testified that appellant took the photographs during the sexual assault and that appellant directed her to get into various sexual positions. The evidence presented at trial is both legally and factually sufficient to support appellant s conviction of promotion of child pornography. See Savery v. State, 782 S.W.2d 321 (Tex. App. Beaumont 1989), aff d 819 S.W.2d 837 (Tex. Crim. App. 1991) (holding that evidence was sufficient to show that defendant intentionally and knowingly possessed child pornography found in his bedroom); Tovar v. State, 165 S.W.3d 785 (Tex. App. San Antonio 2005, no pet.) (holding that evidence was legally sufficient to show that photographs taken by defendant depicted lewd exhibition of genitals by child, as required for convictions). Accordingly, we overrule appellant s fourth and fifth issues.

Having overruled all of appellant s issues, we affirm both of her convictions.

/s/ Kem Thompson Frost

Justice

Judgment rendered and Memorandum Opinion filed November 10, 2005.

Panel consists of Justices Hedges, Fowler, and Frost.

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

[1] We note that Michael Lane was convicted of two separate counts of aggravated sexual assault for this same incident. He appealed from these convictions and asserted on appeal that the trial court erred by failing to grant his request for separate jury trials, denying his motion to suppress, and admitting hearsay testimony under the excited-utterance exception. Lane also challenged the legal and factual sufficiency of the evidence to support his convictions. We affirmed both of these convictions on appeal. See Lane v. State, __ S.W.3d __, 2005 WL 2230411 (Tex. App. Houston [14 Dist.] 2005, no pet. h.).

[2] It is important to note that appellant filed an outcry notice that she intended to use statements made by Ferrell in her defense. Strangely enough, even though the notice appears to have been prepared by appellant, at trial, appellant offered it into the reporter s record as notice given by the State and the State claimed that the notice was prepared and included by the State. While it appears to contradict the notice in the clerk s record, the notice was clearly prepared and signed by appellant s defense attorney.