FERNANDO CORTEZ v. THE STATE OF TEXAS--Appeal from 319th District Court of Nueces County

 NUMBER 13-05-447-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

FERNANDO CORTEZ, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 319th District Court

of Nueces County, Texas

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Rodriguez and Garza

Memorandum Opinion by Justice Rodriguez

Appellant, Fernando Cortez, was charged by indictment with criminal solicitation of a minor. See Tex. Pen. Code Ann. ' 15.031(b) (Vernon 2003); ' 22.011(a)(2)(B) (Vernon 2003 & Supp. 2005). The trial judge found appellant guilty and assessed punishment at ten years' confinement, suspended for ten years' probation, and a fine of $1,000. The trial court has certified that this "is not a plea bargain case, and the defendant has the right of appeal." See Tex. R. App. P. 25.2(a)(2). By two issues appellant challenges (1) the sufficiency of the evidence to corroborate the solicitation itself, and (2) the factual sufficiency of the evidence to support his conviction. We affirm.

I. Background

All issues of law presented by this case are well-settled, and the parties are familiar with the facts. Therefore, we will not recite the law or the facts except as necessary to advise the parties of the Court=s decision and the basic reasons for it. See Tex. R. App. P. 47.4.

II. Corroboration Evidence

In his first issue, appellant asserts that the evidence presented at trial was insufficient to corroborate the solicitation itself.

A. Applicable Law and Standard of Review

The offense of criminal solicitation of a minor[1] contains a corroboration requirement. See Tex. Pen. Code Ann. ' 15.031(c) (Vernon 2003). Pursuant to section 15.031(c), a person may not be convicted on the uncorroborated testimony of the minor allegedly solicited unless the solicitation is made under circumstances strongly corroborative of both the solicitation itself and the actor's intent that the minor act on the solicitation.[2] Id. The corroboration requirement of this statute embodies the same concept as that contained in the general criminal solicitation statute. See Tex. Pen. Code Ann. '' 15.03(b), 15.031(c) (Vernon 2003); see also Palacio v. State, No. 2-04-152-CR, 2005 Tex. App. LEXIS 470, *8 (Tex. App.BFort Worth Jan. 20, 2005, pet. ref'd) (not designated for publication); Bolton v. State, No. 03-99-00539-CR, 2000 Tex. App. LEXIS 4304, *7 (Tex. App.BAustin June 29,2000, no pet.) (not designated for publication). The corroboration requirement for general criminal solicitation is analogous to the corroboration requirement found in the accomplice witness statute. See Tex. Pen. Code Ann. ' 15.03(b); Tex. Code Crim. Proc. Ann. art. 38.14 (Vernon 2005); Richardson v. State, 700 S.W.2d 591, 594 (Tex. Crim. App. 1985) (en banc). Therefore, the test for evaluating the sufficiency of the corroboration evidence is the same with respect to the general criminal solicitation statute and accomplice witness statute. See Richardson, 700 S.W.2d at 594. Furthermore, because the corroboration requirement found in section 15.031(c) embodies the same concept as that found in 15.03(b), we apply the same test used in evaluating the sufficiency of the corroboration evidence under the general criminal solicitation statute and accomplice witness statute to section 15.031(c). See Palacio, 2005 Tex. App. LEXIS 470, at *8-9 (citing Bolton, 2000 Tex. App. LEXIS 4304, at *2-3).

Therefore, in reviewing the sufficiency of the corroboration evidence in the present case, the test requires that we eliminate from consideration the minor victim's testimony and then determine whether there is other incriminating evidence tending to connect the defendant with the crime. See Richardson, 700 S.W.2d at 594 (citing Adams v. State, 685 S.W.2d 661 (Tex. Crim. App. 1985)). It is not necessary that the corroboration evidence directly link the defendant with the crime or that it be sufficient in itself to establish guilt. Id. (citing Shannon v. State, 567 S.W.2d 510 (Tex. Crim. App. 1978)). In determining the sufficiency of the corroboration evidence, we consider the combined weight of the non-victim=s evidence even if it is entirely circumstantial. Id. (citing Rice v. State, 587 S.W.2d 689 (Tex. Crim. App. 1979); Jackson v. State, 516 S.W.2d 167 (Tex. Crim. App. 1974)).

B. Analysis

Eliminating from consideration C.A.=s, the minor victim's, testimony, we determine whether there is other evidence tending to connect appellant with the offense. See Richardson, 700 S.W.2d at 594. At trial, C.A.=s parents testified that he had informed them of the solicitation the same day it occurred. C.A.=s parents also testified as to his demeanor on the day of the offense, and described him as quiet and scared; they also testified that C.A. slept a lot that day. C.A.=s parents further testified that C.A. described the perpetrator=s vehicle to them the day of the incident as a grey truck with a Dallas Cowboy star decal on the back window. C.A.=s description of the perpetrator's vehicle matched the description of appellant=s vehicle; appellant testified that he had a Dallas Cowboy star decal on the back window of his grey truck. C.A.=s parents also testified that while driving in town on January 24, 2004, C.A. informed them that the grey truck driving next to them was the truck of the perpetrator and that the perpetrator was the individual driving the truck. C.A.=s parents also testified that when C.A. identified appellant in his truck, C.A.=s demeanor was anxious. C.A.'s parents testified that appellant continued to stare in C.A.'s direction as the two vehicles drove near each other. Furthermore, the State showed that appellant=s place of work was about one and a half miles from the area where the solicitation occurred. In addition, the State demonstrated that while appellant=s alibi witnesses could confirm appellant=s whereabouts on January 5th and 6th, they could not testify as to his specific whereabouts on January 7th other than to say that appellant was supposed to be at work on January 7th.[3]

After eliminating C.A.'s testimony from consideration and evaluating the combined weight of the non-victim's evidence, see Richardson, 700 S.W.2d at 594, we conclude that the evidence tending to connect appellant with the crime was sufficient and C.A.=s testimony was strongly corroborated as to the solicitation itself. See Tex. Pen. Code Ann. ' 15.031(c) (Vernon 2003). We overrule appellant=s first issue.

III. Factual Sufficiency

In his second issue, appellant contends that the evidence is factually insufficient to support his conviction.

A. Standard of Review

In reviewing the factual sufficiency of the evidence, we view the evidence in a neutral light. Drichas v. State, 175 S.W.3d 795, 799 (Tex. Crim. App. 2005) (en banc) (citing Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996)). We measure the factual sufficiency of the evidence in a jury trial by the elements of the offense as defined by a hypothetically correct jury charge. See Adi v. State, 94 S.W.3d 124, 131 (Tex. App.BCorpus Christi 2002, pet. ref'd).

In evaluating the evidence, we must defer to the finder of fact. See Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). The fact finder is permitted to draw reasonable inferences and deductions from the evidence. Benavides v. State, 763 S.W.2d 587, 588 89 (Tex. App.CCorpus Christi 1988, pet. ref'd). In addition, it is within the fact finder's province to resolve any discrepancies in the evidence. Bowden v. State, 628 S.W.2d 782, 784 (Tex. Crim. App. 1982). Furthermore, the fact finder is the sole judge of the credibility of the witnesses, and is permitted to accept or reject all or any part of the evidence presented at trial. Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991).

Evidence is factually insufficient only when the evidence to an element is so obviously weak as to undermine confidence in the fact finder'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) (en banc).

B. Analysis

In order to prove that appellant committed the offense of criminal solicitation of a minor, the State had to prove that appellant, with intent that an offense under section 22.011 be committed, by any means requested, commanded, or attempted to induce C.A. to engage in conduct that, under the circumstances surrounding appellant's conduct as he believed them to be, would constitute an offense under section 22.011 or would have made C.A. a party to the commission of an offense under section 22.011. Tex. Pen. Code Ann. ' 15.031(b) (Vernon 2003).

At trial, C.A. testified that sometime in the morning on or about January 6, 2004, while near the coliseum, a well-dressed man in a grey truck approached him, said that he knew C.A.'s name and address, and that he would pay him $20.00 in exchange for fellatio. We have already concluded that there is other incriminating evidence tending to connect appellant with the crime and strongly corroborating CA's testimony with respect to the solicitation itself.

On appeal, appellant contends that C.A.=s identification of him as the perpetrator of the offense is weak because (1) C.A. failed to give a description of common physical characteristics of the perpetrator when the incident was first reported, (2) there were discrepancies between C.A.=s trial testimony and his first reports about what the perpetrator was wearing, (3) C.A. testified that the Dallas Cowboy star decal was located on the driver=s side of the back window, while C.A.=s father testified that the star decal was located near the middle of the back window, and (4) there was a thirty second delay in C.A.=s identification of appellant in the picture lineup. In addition, appellant claims that his testimony denying the charge against him and the testimony of his alibi witnesses, Aoverwhelm and outweigh complainant=s weak identification and to convict him [on] such evidence would be clearly wrong and unjust.@

Our role as an appellate court is not to re-weigh the evidence; instead, we must defer to the trial court as the finder of fact. See Cain, 958 S.W.2d at 407. Here, the trial court was permitted to draw reasonable inferences and deductions from C.A.=s failure to describe the physical characteristics of the perpetrator when the incident was first reported and from C.A.=s thirty second delay in identifying appellant in the picture lineup. See Benavides, 763 S.W.2d at 588 89. In addition, it was within the trial court=s province to resolve any discrepancies in C.A.=s description of what the perpetrator was wearing and with respect to the location of the star decal on the back window of the perpetrator=s vehicle. See Bowden, 628 S.W.2d at 784. Finally, the trial court was the sole judge of the credibility of the witnesses, including that of appellant and his alibi witnesses, and was permitted to accept or reject all or any part of the evidence presented at trial. See Saxton, 804 S.W.2d at 914.

Therefore, viewing all of the evidence in a neutral light, Drichas, 175 S.W.3d at 799, and deferring to the fact finder as the exclusive judge of the credibility of the witnesses and the weight to be given their testimony, Saxton, 804 S.W.2d at 914, we conclude that the evidence is not so obviously weak as to undermine confidence in the fact finder=s determination and that the proof of guilt, although adequate if taken alone, is not greatly outweighed by contrary proof. Johnson, 23 S.W.3d at 11. Thus, we conclude the evidence is factually sufficient to support appellant=s conviction for criminal solicitation of a minor. We overrule appellant=s second issue.

IV. Conclusion

Accordingly, we affirm the judgment of the trial court.

NELDA V. RODRIGUEZ

Justice

Do not publish.

Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and

filed this 6th day of July, 2006.

[1] A person commits the offense of criminal solicitation of a minor if,

with intent that an offense under Section 21.11, 22.011, 22.021, or 43.25 be committed, the person by any means requests, commands, or attempts to induce a minor or another whom the person believes to be a minor to engage in specific conduct that, under the circumstances surrounding the actor's conduct as the actor believes them to be, would constitute an offense under one of those sections or would make the minor or other believed by the person to be a minor a party to the commission of an offense under one of those sections.

Tex. Pen. Code Ann. '15.031(b) (Vernon 2003).

[2]We note that appellant only challenges whether the evidence is sufficient to strongly corroborate the solicitation itself. See Tex. Pen. Code Ann. ' 15.031(c) (Vernon 2003). Appellant does not challenge whether the evidence is sufficient to strongly corroborate the actor's intent that the minor act on the solicitation. See id.

[3] The indictment alleged that the offense occurred on or about January 6, 2004. C.A. could not recall the exact date of the offense, but narrowed the date to January 5th, 6th, or 7th. Appellant=s alibi witnesses testified as to appellant's specific whereabouts during the time the offense occurred with respect to January 5th and 6th. With respect to January 7th, they testified that appellant was required to be at school for a teacher work day, but that they could not confirm that he was actually at school during the time of the offense.