Joe Salvador Bustamante v. The State of Texas--Appeal from 13th District Court of Navarro County

IN THE

TENTH COURT OF APPEALS

No. 10-99-106-CR

JOE SALVADOR BUSTAMANTE,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 13th District Court

Navarro County, Texas

Trial Court # 26,971

O P I N I O N

Joe Salvador Bustamante was convicted by a jury of aggravated sexual assault and sentenced to forty years in prison. On appeal, Bustamante challenges his conviction in two issues. In his first issue, he asserts that there was a fatal variance between the indictment and the State s proof at trial. In his second issue, he challenges the legal sufficiency of the evidence supporting the verdict. We affirm the judgment of the trial court.

Facts

Bustamante was married to Tina, the mother of M.H., the 10-year-old victim. One Saturday, while Tina was outside waiting on customers at their yard sale, she told M.H. to go inside the mobile home and clean the kitchen. Shortly after M.H. went into the home, Bustamante entered the home. A short period of time later, Tina thought she heard M.H. scream. She immediately ran into the house and encountered Joe, who was coming out of the bathroom. Tina found M.H. in the bedroom sitting on the floor in front of a box of her clothes, but M.H. denied calling out to her mother.

After Bustamante left the house, M.H. told her mother that Bustamante had sex with her in the bedroom. Tina did not believe her daughter, but she confronted Bustamante with the accusation. He denied it and demanded that M.H. be taken to a doctor to be examined. Tina took her daughter to Baylor Hospital later that day. The examination, however, was somewhat limited due to the lack of cooperation by M.H. She would only allow the doctor to perform an external examination. The results of the examination performed by Baylor Hospital only showed signs of anal penetration. After this incident, M.H. was sent to live with her paternal grandparents.

Approximately one month later, M.H. was taken to the Child Abuse Assessment Center at the University of Texas Medical Branch in Galveston for testing. A colposcopic examination of M.H. s vaginal area revealed no abnormalities in her genital area. But the same examination did reveal abnormalities in her anus. Particularly, the exam revealed (1) the presence of skin tags, which is evidence of the healing of damaged tissue, and (2) distortion of the anal fold. These conditions are both consistent with anal penetration.

Issue One - Variance

In his first issue, Bustamante contends that there was a fatal variance between the allegations in the indictment and the State s proof at trial. The indictment charged Bustamante as follows:

...that JOE SALVADOR BUSTAMANTE ...did then and there intentionally and knowingly cause the sexual organ of M.H., a child who was then and there younger than 14 years of age and not the spouse of defendant, to contact the sexual organ of defendant...

Bustamante argues that the indictment sets forth a violation of Section 22.021(a)(1)(B)(iii) of the Penal Code (sexual organ of the child) and not a violation of Section 22.021(a)(1)(iv) of the Penal Code (anus of the child). Tex. Pen. Code Ann. 22.021 (Vernon Supp. 1998). Specifically, he argues that the charging instrument alleges vaginal sexual assault, but the evidence offered at trial was, at best, evidence of anal sexual assault. Bustamante contends that this variance between the indictment and the proof at trial is fatal. Thus, the precise issue in the instant case is whether the proof at trial comports with the conduct alleged in the indictment, i.e. vaginal sexual assault.

When an indictment facially alleges a complete offense, the State is bound by the theory alleged in the indictment, as we are in our sufficiency analysis. Rojas v. State, 986 S.W.2d 241, 246 (Tex. Crim. App. 1998). A variance between the indictment and the evidence may be fatal to a conviction because due process guarantees that the defendant have notice of the charges against him. Id. However, only a material variance is fatal. Id. A variance between the indictment and the proof at trial is material only if it operated to Bustamante's surprise or prejudiced his rights. Id.

While much of the evidence offered by the prosecution did pertain to the anal penetration of M.H., the prosecution also offered evidence of vaginal intercourse. There was testimony by M.H., the victim, that Bustamante had vaginal sexual intercourse with her. At trial, the State placed two pictures in front of M.H. and asked her to choose the picture that looked like her. She pointed to the female picture. She then pointed to the male picture saying that it looked like Bustamante. And then using the pictures, M.H. testified that Bustamante put his thing in my private. She then proceeded to identify his thing and her private on the respective male and female diagrams.

At trial, the State called Dr. James Lousis Lukefahr, a physician at the Child Abuse Assessment Center who examined M.H. approximately one month after the incident. Dr. Lukefahr testified that the photos taken of M.H. did not show any particular abnormalities in the genital area. However, he testified that actually having a positive definite physical finding really is kind of the exception in child sexual abuse cases. He also testified that sometimes there will be penetration up to the level of the hymen but if there s no additional force or penetration, then there may be no physical findings in the genital area indicating penetration, especially if a period of time has elapsed after the alleged activity. Despite this inconclusive medical testimony, M.H. s testimony standing alone is adequate to establish the specific allegations of the indictment. Thus, after reviewing the indictment and the evidence, we conclude that there is no variance, material or otherwise, between the allegations in the indictment and the proof at trial. See Rojas v. State, 986 S.W.2d 241, 246 (Tex. Crim. App. 1998). Accordingly, we overrule Bustamante s first issue.

Second Issue - Legal Sufficiency

In his second issue, Bustamante argues that there was legally insufficient evidence to support a conviction for violation of Section 22.021(a)(1)(B)(iii). Tex. Pen. Code Ann. 22.021. When reviewing a claim of legal insufficiency of the evidence, we must determine, after considering all the evidence in the light most favorable to the verdict, whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 2788-89, 61 L. Ed. 2d 560 (1979); Johnson v. State, 967 S.W.2d 410, 412 (Tex. Crim. App. 1998). The fact finder is the sole judge of the credibility of the witnesses and the weight given their testimony. See Bonham v. State, 680 S.W.2d 815, 819 (Tex. Crim. App. 1984).

Before a defendant may be found guilty of aggravated sexual assault of a child, Section 22.021 of the Texas Penal Code requires proof that the defendant intentionally or knowingly caused the penetration of the anus or female sexual organ of a child by any means. Tex. Pen. Code Ann. 22.021. Bustamante argues that there was legally insufficient evidence to support a conviction of vaginal sexual assault.

Although there was a lack of conclusive medical evidence of penetration of the sexual organ, it does not render the evidence legally insufficient. Even though M.H. used inexact terms to describe the incident, she sufficiently communicated the areas on her body that Bustamante penetrated. She also testified that Bustamante used petroleum jelly and the lab tests conducted on her panties did indicate the presence of petroleum jelly in the crotch area and toward the back of the panty. Thus, in light of all the evidence, a reasonable fact-finder could have concluded beyond a reasonable doubt that Bustamante penetrated M.H. s sexual organ. Therefore, the evidence is legally sufficient to support the jury s verdict. Accordingly, Bustamante s first issue is overruled.

Conclusion

Having overruled both of Bustamante s issues, the judgment of the trial court is affirmed.

TOM GRAY

Justice

Before Chief Justice Davis,

Justice Vance, and

Justice Gray

Affirmed

Opinion delivered and filed August 30, 2000

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