Angel Joe Moreno v. State of Texas--Appeal from 183rd District Court of Harris County

No. 04-00-00410-CR
Angel Joe MORENO,
Appellant
v.
The STATE of Texas,
Appellee
From the 183rd Judicial District Court, Harris County, Texas
Trial Court No. No. 839293
The Honorable Joan Huffman, Judge Presiding (1)

Opinion by: Phil Hardberger, Chief Justice

Sitting: Phil Hardberger, Chief Justice

Tom Rickhoff, Justice

Catherine Stone, Justice

Delivered and Filed: April 25, 2001

AFFIRMED

Angel Joe Moreno ("Moreno") was charged with aggravated sexual assault of a child. Moreno was found guilty by a jury. Due to two prior convictions and their enhancement consequences, the jury sentenced Moreno to 60 years in prison. Moreno appeals his conviction on two grounds: (1) the evidence was legally insufficient to sustain the jury's verdict; and (2) the evidence was factually insufficient to support the jury's finding of guilt. We find that the evidence presented at trial was sufficient to withstand both legal and factual insufficiency challenges. The jury verdict is affirmed.

Facts

The victim, P.H., was a five year-old living in an apartment with her mother, father, and

younger brother. P.H.'s aunt, Christine Pena ("Pena"), and her husband and son, along with P.H.'s grandmother and her grandmother's husband, Moreno, lived in the apartment below the victim's. The after-school routine was for P.H. to stay with Pena until P.H.'s mother returned from work. Pena testified, however, that on Thursday, April 29th, 1999, she was later than usual in taking her son and P.H.'s brother on their regular trip to Dairy Queen. Pena asked Moreno to watch P.H. when she arrived from school until Pena and the boys returned.

According to P.H.'s testimony, upon her arrival, Moreno (whom P.H. referred to as "Andrew") told her to go into his bedroom, where he told P.H. to touch and kiss his "bottom," the general term P.H. used when referring to either male or female genitals. P.H. also testified that Moreno touched and kissed P.H.'s "bottom" [vagina]. Further, P.H. testified that Moreno's penis had touched her vagina. In addition to verbal testimony, P.H. demonstrated these actions with dolls for the jury. Later that evening, according to P.H.'s mother's testimony, P.H. complained while preparing for her bath that her "bottom" hurt, but when after her bath P.H. made no further mention of discomfort, her mother did not pursue the issue.

The next day, Friday, P.H.'s parents took a trip to Galveston, leaving P.H. and her brother in Pena's care. Pena testified that during this time P.H. told her that "Andrew" had hair on his "bottom." When Pena asked P.H. how she knew this, Pena testified that P.H. told her that Moreno had shown P.H. his "bottom." According to Pena, P.H. also said that Moreno "made her touch it [his "bottom"] , and he made her kiss it." When P.H.'s parents returned from Galveston the next day and learned of P.H.'s statements, they took P.H. to the police and filed a report. The next Monday, P.H. was seen by her physician, and on Tuesday had a complete sexual assault examination at Texas Children's Hospital("TCH").

The testimony of Dr. Paul Sirbaugh ("Dr. Sirbaugh") revealed that the examination report showed that P.H.'s chief complaint when arriving at TCH was "vaginal pain." Dr. Sirbaugh testified that according to the notes taken during P.H.'s examination, which included questions from a social worker in addition to the medical examination, P.H. reported that "Andrew showed her his penis, touched her private parts with his penis and had her touch and kiss his penis...." The physical exam revealed that P.H.'s hymen was intact, but was "very friable," and "bled with a gentle Q-tip touch." Dr. Sirbaugh testified that the medical term "friable" meant "red and easily causes bleeding when you touch it." The exam also revealed a slight discharge from P.H.'s urethral orifice. Dr. Sirbaugh testified that such symptoms were "very consistent" with a child's allegation that someone had touched her vagina or that someone had put his penis against or slightly inside her vagina.

Standard of Review

A. Legal Sufficiency

When deciding a challenge to the legal sufficiency of the evidence, this court must review all evidence, both direct and circumstantial, in the light most favorable to the verdict. Jackson v. Virginia, 443 U.S. 307, 318 (1979); Whitaker v. State, 977 S.W.2d 595, 598 (Tex. Crim. App. 1998). We must determine whether a rational trier of fact could have found all of the essential elements of the offense to arrive at the challenged finding beyond a reasonable doubt. Jackson, 443 U.S. at 318; Whitaker, 977 S.W.2d at 598. The jury is the exclusive judge of the witnesses' credibility and the weight to be given to their testimony. Whitaker, 977 S.W.2d at 598; McFarland v. State, 928 S.W.2d 482, 496 (Tex. Crim. App. 1996); Sonnier v. State, 913 S.W.2d 511, 514 (Tex. Crim. App. 1995). The jurors are free to believe all, some, or none of the witness's testimony, and have the same discretion with all other evidence presented. McFarland, 928 S.W.2d at 496; Sonnier, 913 S.W.2d at 514. As the sole judge of the witnesses' credibility, the trier of fact may resolve inconsistencies in the testimony presented. McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex. 1986).

B. Factual Sufficiency

The general standard for factual sufficiency of the evidence concerning a criminal conviction

was established in Clewis v. State. Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). Under the Clewis standard this court must view all of the evidence, setting aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Id. The Texas Court of Criminal Appeals has outlined three guiding principles to employ when reviewing the evidence. Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997).

First, this court must review the jury's deliberation and weighing of the evidence in a deferential manner in order to avoid substituting our judgment for the jury's. Id. Our evaluation of the evidence may not impermissibly intrude upon the jury's role as the sole arbiter of the weight and credibility of witness testimony. Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997). Any weight given to contradictory testimonial evidence is within the sole discretion of the jury, turning on the jury's evaluation of credibility and demeanor. Cain, 958 S.W.2d at 408-09. The jury is also entitled to draw reasonable inferences from circumstantial evidence to decide ultimate facts. In re V.M.D., 974 S.W.2d 332, 346-47 (Tex. App.-San Antonio 1998, no pet.); Kelley v. State, 968 S.W.2d 395, 398 (Tex. App.-Tyler 1998, no pet.). Even where conflicting evidence is presented, a jury verdict is typically presumed conclusive unless the verdict "shocks the conscience," is "manifestly unjust," or "clearly demonstrates bias." Santellan, 939 S.W.2d at 165; Taylor v. State, 921 S.W.2d 740, 746 (Tex. App.-El Paso 1996, no pet.).

Second, if we find factual insufficiency to support the verdict, we must support such a ruling with a detailed explanation to enable the Court of Criminal Appeals to ensure that proper deference was accorded to the jury's finding. Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). In reversing a lower court's decision, we must specifically state the manner in which the contrary evidence greatly outweighs the evidence in support of the jury verdict. Id.

Finally, the evidence must be reviewed without viewing it in the light most favorable to the verdict. Id. at 408. "This differs from a legal sufficiency review, where the court of appeals considers only the evidence that supports the verdict." Cain, 958 S.W.2d at 408.

Discussion

We find that the evidence is both legally and factually sufficient to support the jury's verdict,

and overrule both of Moreno's points of error.

The indictment against Moreno reads, in part: "[Moreno] unlawfully, intentionally, and knowingly cause[d] the sexual organ of [P.H.], a person younger than fourteen years of age and not the spouse of the Defendant, to contact the sexual organ of the Defendant." Examining the evidence under the legal sufficiency standard, and considering only the evidence in support of the verdict, we find ample evidence to uphold the jury's verdict. Dr. Sirbaugh testified that P.H.'s complaints and symptoms were "very consistent" with those of a molested child. P.H.'s medical records regarding the incident were also admitted into evidence. Furthermore, the jury could have easily found P.H. credible given her age and her demonstrated ability to distinguish the truth from a lie. The numerous statements made by P.H., both prior to and at trial, could have led the jury to believe her allegations against Moreno. P.H.'s statements and description of the sexual assault remained consistent throughout the discovery and trial periods. At trial, P.H.'s account of the incident was consistent with the outcry statements she made to her aunt months before. Additionally, P.H.'s use of the dolls at trial to illustrate the anatomy involved and the assault she allegedly experienced could have led a reasonable juror to find Moreno guilty.

The only witness on behalf of Moreno was his wife, who testified that Moreno was not the kind of person that molests children and that she did not believe that Moreno was guilty. On cross examination, Doctor Sirbaugh testified that P.H.'s hymen could have sustained such irritation and injury from other activities, therefore, the medical examination was not conclusive on the issue of sexual assault. The decision of what weight, if any, to give this evidence is solely within the province of the jury. Based entirely on the evidence presented at trial, we conclude that the jury's verdict was not so contrary to the overwhelming weight of the evidence as to be clearly wrong or unjust. Clewis, 922 S.W.2d at 129. Consequently, the evidence is factually sufficient to support the jury's finding of aggravated sexual assault of a child. We also conclude, after viewing all of the evidence in the light most favorable to the verdict, that a rational juror could have found the essential elements of the crime charged beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979); Whitaker, 977 S.W.2d at 598. Both of Moreno's points of error are overruled.

Conclusion

The jury's verdict is affirmed.

Phil Hardberger, Chief Justice

DO NOT PUBLISH

1. The Honorable John Hughes presided over voir dire, while the Honorable Joan Huffman presided over the trial proceedings.