Isaac G. Hernandez v. The State of Texas--Appeal from 264th District Court of Bell County

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,
AT AUSTIN
NO. 3-90-100-CR
ISAAC G. HERNANDEZ,

APPELLANT

 
vs.
THE STATE OF TEXAS,

APPELLEE

 
FROM THE DISTRICT COURT OF BELL COUNTY, 264TH JUDICIAL DISTRICT
NO. 38,401, HONORABLE JACK W. PRESCOTT, JUDGE

PER CURIAM

 

A jury found Isaac G. Hernandez guilty of the offense of aggravated sexual assault of a child of less than 14 years of age. The court assessed punishment at 20 years imprisonment. Tex. Pen. Code Ann. 22.021 (1989). We will affirm the judgment of conviction.

In one point of error, appellant contends that the evidence was insufficient to support the conviction because there were too many conflicts in the testimony for the jury to find him guilty beyond a reasonable doubt.

At the time of trial the complaining witness, appellant's daughter, was eleven years old and in the fourth grade. She said that the previous summer she told her mother that something bad had happened to her. Her mother took her to the Department of Human Services and to the police and she told them that her father had been doing bad things to her. She said that he had touched her on her "private part" and had her touch his "private part"; that he had touched her with it and attempted to put it in her "behind." She said that he had put his "private" in her mouth; that she put pillows over her face so that she wouldn't see; that he would move it when he had it in her mouth; that something came out of it after which the appellant would clean them both up. She said that her father had made her watch an X-rated movie on videotape. She did not tell anyone sooner because she was scared. She said that she now lived with an aunt in Pharr; that she had talked to her father occasionally since telling about the molestation; and, that she still loved him.

On cross-examination, complainant was asked about her uncle, Juan Castillo. She said that he had touched her "where he wasn't supposed to," prior to appellant's molestation. She did not remember watching videos with Juan. She said that he had put a knife against her neck and threatened to kill her family if she told.

She said that she had only watched the "dirty" movie when appellant showed it to her. She denied asking her baby sitter to show it to her and denied saying that she watched it all the time. She said that her father did have some "dirty" magazines in their home but denied looking at them and being caught by her mother. She also denied telling a neighbor boy that she had seen her mother and father "humping."

The complaining witness testified that her father did "something" to her on two days when they lived in the Valley with her grandparents. She was then asked to look at some papers which she identified as a statement she had made to the police in which she had said that "it" happened almost every day in the Valley, which she did not remember saying. She denied saying to appellant, while her mother was listening, that the charge was not true; denied telling her aunt that for fifty dollars she would say the charge was not true; and denied telling anyone that she was going to make some money off this. She admitted that she had told a lie before. On redirect, she said that she felt "pressure" in her home because of the family living in the Valley instead of living with appellant. She said that she loved appellant and did not want him to go to jail.

Dr. Douty, a pediatrician at Scott and White Hospital, testified that usually no physical findings are associated with sexual abuse. Instead, reliance is placed upon the historical information given by the victim. The child told him that her father had manipulated her vagina with his finger, attempted to put his penis in her rectum, and made her perform oral sex. He found no evidence of penetration of the child's vagina or rectum, but did find bruises on the child's thighs which were consistent with the victim's complaint of pain resulting from her father's putting his knees on her thighs. She was very shy, which was consistent with sexual abuse victims. The State presented two of the child's teachers, who said she was immature and a bit slow but tried hard and would not lie to get herself out of trouble.

Other witnesses were called who contradicted various aspects of the child's story. Her mother, Maria Hernandez, said that when the child told her about the events the child was upset. She went to a priest, then to Child Protective Services. She said that the matter had caused difficulties and fights in her home. She said that she and the other children were upset at being separated from appellant. She said that the child at one point said that it didn't happen but then changed the story back and said that it did happen. She said that the bruises on the child's thighs resulted from an injury suffered during an emergency drill at school.

Appellant's other witnesses included a baby sitter who testified that the child told her that she watched a sexually-explicit videotape "all the time" and the baby sitter had to take the tape away from the child. A neighbor boy testified that the child told him what "humping" was, and said that she had seen her parents doing it. A neighbor testified that he had to break up several fights between appellant and his (appellant's) wife, which caused the children to be upset. He had seen the videotape in question and said that it had explicit scenes of oral sodomy and ejaculation on the stomach. The child's aunt testified that when she talked to the child, the child said that if the aunt would give her fifty dollars she wouldn't say anything. She said that the child told her about Juan Castillo and his threats; that the child told her that she had seen a hard-core movie. Another relative said that the child spontaneously told her that the appellant had not done anything, although she also said there was family pressure on the child.

Appellant testified that there had been violence between him and his wife in front of the children; that the videotape showed the same acts as those that the child described as happening to her; and that in one telephone conversation between him and his wife, he said the child told him the allegation wasn't true. He denied committing the offense.

When the issue is the sufficiency of the evidence to support a criminal conviction, the reviewing court must view the evidence in the light most favorable to the verdict and determine if any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. This is done by considering all the evidence in the case, resolving all conflicts and drawing all reasonable inferences in favor of the verdict and then determining whether there is sufficient evidence. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Moreno v. State, 755 S.W.2d 866, 867 (Tex. Cr. App. 1988). The trier of fact is the sole judge of the credibility of the witnesses, and may believe or disbelieve all or any part of any witness's testimony. Williams v. State, 692 S.W.2d 671, 676, (Tex. Cr. App. 1984).

The jury had the opportunity to observe all of the witnesses. From the record, it is clear that the child often was confused, hesitated in answering, and had to be repeatedly requested to answer questions aloud, rather than by shaking her head. The jury would not have been acting irrationally to have believed the child's version of events, however, understanding that perhaps she had been traumatized by them and so was not the most poised of witnesses.

We overrule the point of error and affirm the judgment of conviction.

 

[Before Justices Powers, Aboussie and Kidd]

Affirmed

Filed: January 23, 1991

[Do Not Publish]