Opinion issued July 6, 2006
In The
Court of Appeals
For The
First District of Texas
NOS. 01-05-00351-CR
01-05-00738-CR
ALEJANDRO CASTRO, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 338th District Court
Harris County, Texas
Trial Court Cause Nos. 979340 and 979341
MEMORANDUM OPINION
A jury found appellant, Alejandro Castro, guilty of aggravated sexual assault of a child (trial court number 979340 and appellate number 01-05-00738-CR) and sexual assault of a child (trial court number 979341 and appellate number 01-05-00351-CR), and assessed punishment at 55 years’ and 30 years’ confinement, respectively. In three points of error, appellant contends (1) the evidence is factually insufficient to support his convictions and (2) the trial court erred by allowing appellant to be impeached by evidence of two prior felony convictions. We affirm.
Background
Cynthia Castro met appellant through a friend at work and married him three weeks later. Appellant moved in with Cynthia and her four children. Appellant was “kind of mean” to Cynthia’s sons, but “paid a lot of attention to [her] girls.” Cynthia became pregnant shortly after she and appellant married, and gave birth to a son in December 2003.
One night, shortly after the birth of her baby, Cynthia awoke and went to the kitchen to look for appellant. She saw appellant kissing and fondling D.S., Cynthia’s 12-year-old daughter. Appellant was touching D.S.’s breasts, telling her he loved her, and calling her “his baby girl.” Cynthia confronted appellant, and he ran to the living room. Cynthia followed and asked appellant what he was doing. Appellant replied, “I wasn’t doing nothing,” but Cynthia ordered him to leave the house, which he did.
The next day, Cynthia asked her daughters whether anything inappropriate had happened between them and appellant. Although they at first denied any abuse, both girls finally admitted to Cynthia that appellant had molested them. Apparently, neither of the girls knew that appellant had abused the other girl. Cynthia called Child Protective Services, who, in turn, called the police.
The girls gave statements to the police, who then arranged an interview and physical examination at the Children’s Assessment Center (hereinafter, “CAC”). During D.S.’s first interview at CAC, she did not tell the interviewer that appellant had intercourse with her, even though she had previously given that information to the police. However, at a second interview, D.S. gave details about how appellant had raped her. The physical examinations of both girls were normal.
At trial, D.S. testified that, on several occasions, appellant came into her room while she was sleeping and rubbed her on her buttocks and legs. One morning, when D.S. was getting ready for school, appellant came into her room and started pushing her. D.S. asked appellant if he was going to rape her, and he responded, “Yes.” He pushed her on the bed, removed her pants, and then put his penis in her vagina. After appellant was finished, D.S. saw semen on the bed. Appellant then offered D.S. a ride to school, which she declined. D.S. did not tell anyone about the incident because she was afraid.
D.S. also testified about the incident in the kitchen, which her mother had witnessed. D.S. said that one night, shortly after her baby brother was born, appellant called her into the kitchen and began kissing her and rubbing her buttocks and legs. D.S.’s mother came into the kitchen and began yelling at appellant. The next day, D.S. at first denied that appellant had done anything inappropriate, but later told her mother what appellant had done.
D.S.’s 15-year-old sister, A.S., testified that one night in November 2003, appellant came into her room while she was sleeping and rubbed her buttocks. She moved and pretended to be asleep and appellant left the room. Appellant later came back and began rubbing her buttocks under her pants. Again she moved and appellant left the room. She awoke once more during the night to discover that her pants were down around her ankles and appellant was rubbing her buttocks. Appellant rolled A.S. over onto her back, and then he placed his finger in her vagina. A.S. testified that on at least two other weekends, appellant came into her room at night and rubbed her buttocks. A.S. did not tell anyone because she did not want to upset her mother, who was pregnant at the time. After Cynthia discovered appellant kissing D.S. in the kitchen, A.S. discovered for the first time that appellant had been doing the same thing to D.S. that he had been doing to her. When Cynthia first questioned A.S. about whether appellant had done anything inappropriate with her, A.S. said no. However, she later told her mother about what had happened and her mother called the police.
Appellant, testifying on his own behalf, denied sexually assaulting either girl. He testified that he believed that the girls’ allegations were the result of a dispute between he and Cynthia over the paternity of their son. Appellant did not believe that the baby was his biological child because the baby had a light complexion and blue eyes.
Factual Sufficiency
In his first point of error, appellant argues that the evidence is factually insufficient to prove that he committed a sexual assault of A.S. or an aggravated sexual assault of D.S. “In a factual sufficiency review, we view all the evidence in a neutral light, both for and against the finding, and set aside the verdict if ‘proof of guilt is so obviously weak as to undermine confidence in the jury’s determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof.’” Vodochodsky v. State, 158 S.W.3d 502, 510 (Tex. Crim. App. 2005) (quoting Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000)). We consider all of the evidence weighed by the jury, comparing the evidence that tends to prove the existence of the elemental fact in dispute with the evidence that tends to disprove it, but avoiding substitution of our judgment for that of the fact finder. Id. In conducting a factual-sufficiency review, we must discuss the evidence that, according to the appellant, most undermines the jury’s verdict. See Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).
Appellant contends the evidence is factually insufficient because the testimony of the child complainants was not credible. Specifically, appellant points out that (1) the girls did not initially report the abuse, (2) appellant testified that he did not sexually abuse the girls, and (3) the girls had a motive to lie, i.e., appellant and their mother had an ongoing dispute over the paternity of their newborn baby brother.
However, under both a legal and factual sufficiency review, the jury is the exclusive judge of the facts, the credibility of the witnesses, and the weight to be given to the witnesses’ testimony.” Jaggers v. State, 125 S.W.3d 661, 672 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d). The jury could have believed all, some, or none of the girls’ or any other witness’s testimony. See Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). Credibility was for the jury to assess and to weigh. See Johnson, 23 S.W.3d at 7. The testimony of a complainant standing alone, even when the complainant is a child, is sufficient to support a sexual-assault finding. See Tex. Code Crim. Proc. Ann. art. 38.07 (Vernon Supp. 2005); see also Jensen v. State, 66 S.W.3d 528, 534 (Tex. App.—Houston [14th Dist.] 2002, pet. ref’d) (stating that testimony alone of child complainant is sufficient to support conviction of sexual assault); Ruiz v. State, 891 S.W.2d 302, 304 (Tex. App.—San Antonio 1994, pet. ref’d) (same). Physical evidence is not necessary to corroborate a sexual assault victim’s testimony. See Garcia v. State, 563 S.W.2d 925, 928 (Tex. Crim. App. [Panel Op.] 1978) (concluding evidence of complainant’s testimony alone was legally sufficient despite lack of physical evidence).
In this case, D.S. testified that one morning, as she was getting ready for school, appellant came into her room, pushed her onto the bed, and placed his penis in her vagina. A.S. testified that appellant came into the room where she was sleeping and began rubbing her bottom over her pants. He later returned, took her pants off, and put his finger in her vagina. Two months later, the girls’ mother caught appellant fondling D.S. one night in the kitchen. Although the girls at first denied that anything inappropriate had taken place, they later told their mother what appellant had done and their mother called the police. D.S. was interviewed twice at CAC because, the first time she was interviewed, she did not tell the interviewer, as she had previously told the police, that appellant had sexual intercourse with her.
Dr. Lawrence Thompson Jr., director of therapy and psychological services at CAC, testified that “delayed outcry” is common in child abuse cases and occurs in over half the cases. He also testified that children often make a “partial outcry” by revealing portions of the abuse, and as they become more comfortable they are able to talk about other aspects of the abuse.
The jury made the determination that the girls’ testimony was more credible than appellant’s testimony. We have reviewed the entire record in the appropriate light, and we cannot say that the evidence of guilt either is so weak as to indicate that a manifest injustice has occurred, or is greatly outweighed by contrary evidence. See Vodochodsky, 158 S.W.3d at 510.
We overrule appellant’s first point of error.
Admission of Prior Convictions For Impeachment Purposes
In his second and third points of error, appellant contends that the trial court erred in permitting the prosecutor to impeach his testimony with prior felony convictions. Specifically, appellant complains that the State was permitted to introduce evidence that, in 1998, he was convicted of felony possession of marihuana, and in 1992, he was convicted of felony possession of a prohibited weapon. We review admission of this evidence under an abuse of discretion standard. Lucas v. State, 791 S.W.2d 35, 51 (Tex. Crim. App. 1989).
Evidence that a witness has been convicted of a crime is admissible to attack the witness’s credibility if the crime was a felony or involved moral turpitude and the court determines that the probative value of the evidence outweighs its prejudicial effect. Tex. R. Evid. 609(a). However, evidence of a conviction is not admissible under the rule if more than ten years has elapsed since the date of the conviction, or the release from confinement, if later, unless the probative value substantially outweighs the prejudicial effect. Id. 609(b).
However, Rule 609(b)'s “substantially outweighs” test will not be applied to a prior conviction over ten years old if the witness’s lack of reformation is shown by evidence of an intervening conviction for a felony or a misdemeanor involving moral turpitude. Lucas v. State, 791 S.W.2d 35, 51 (Tex. Crim. App. 1989); Jackson v. State, 50 S.W.3d 579, 591 (Tex. App.—Fort Worth 2001, pet. ref’d).
Here, the record shows that, between the 1992 conviction for possession of a prohibited weapon and the charges for which appellant was on trial, appellant had a felony conviction for possession of marihuana (1998) and a felony conviction for unlawfully carrying a weapon (1999). The intervening 1998 and 1999 felony convictions are evidence of appellant’s lack of reformation, thus we analyze the introduction of both the 1992 conviction for possession of a prohibited weapon and the 1998 conviction for possession of marihuana under Rule 609(a)'s “outweighs” test, not 609(b)’s “substantially outweighs” test.
To determine whether the probative value of the evidence outweighs the prejudicial effect, courts look to the factors set forth by the Court of Criminal Appeals in Theus v. State: (1) the impeachment value of the prior crime; (2) the temporal proximity of the past crime relative to the charged offense and the witness’s subsequent history; (3) the similarity between the past crime and the offense being prosecuted; (4) the importance of the defendant’s testimony; and (5) the importance of the credibility issue. 845 S.W.2d 874, 880 (Tex. Crim. App. 1992).
(1) Impeachment Value of Prior Crimes
Regarding the first factor, the impeachment value of prior crimes involving deception or moral turpitude is greater than for crimes involving violence. Id. at 881; Deleon v. State, 126 S.W.3d 210, 215 (Tex. App.—Houston [1st Dist.] 2003, pet. dism’d.). Further, violent crimes are likely to have more of a prejudicial effect. Theus, 845 S.W.2d at 881; Deleon, 126 S.W.3d 210 at 215. Possession of marihuana and possession of a prohibited weapon are neither crimes of deception, nor crimes of violence. Thus, the first Theus factor is neutral and favors neither admission nor exclusion.
(2) Temporal Proximity
Appellant had three prior felony convictions—one in 1992, one in 1998, and one in 1999. As such, appellant has shown a “propensity for running afoul of the law.” Theus, 845 S.W.2d at 881. As discussed above, because there was evidence of intervening convictions suggesting appellant has not reformed his conduct, the second factor, concerning temporal proximity, can be read as favoring admission. See Rodriguez v. State, 129 S.W.3d 551, 560 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d); Jackson v. State, 11 S.W.3d 336, 340 (Tex. App.—Houston [1st Dist.] 1999, pet. ref’d).
(3) The Similarity Between the Past Crime and the Charged Offense
The third factor concerns the similarity between the past crimes and the offenses being prosecuted. The present case involves charges of aggravated sexual assault and sexual assault, neither of which is similar to the prior convictions for possession of a prohibited weapon and possession of marihuana. Thus, factor three leans in favor of admission because there is a lessened possibility of prejudice. See Theus, 845 S.W.2d at 881.
(4) & (5) The Importance of the Defendant’s Testimony and Credibility
Factors four and five concern, respectively, the importance of appellant’s testimony and the importance of the credibility issue. “When the case involves the testimony of only the defendant and the State’s witness, the importance of the defendant’s credibility and testimony escalates. As the importance of the defendant’s credibility escalates, so will the need to allow the State an opportunity to impeach the defendant’s credibility.” Id. In this case, the credibility of the minor complainants and appellant’s credibility were critical issues because there was no physical evidence to tie appellant to the crimes. As such, factors four and five favor admission of evidence to impeach appellant’s credibility. See id.
In sum, the trial court did not abuse its discretion in concluding that the Theus factors favor admission of the evidence of appellant’s prior convictions. We overrule appellant’s second and third points of error.
Conclusion
We affirm the judgments of the trial court.
Sherry Radack
Chief Justice
Panel consists of Chief Justice Radack and Justices Taft and Nuchia.
Do not publish. Tex. R. App. P. 47.2(b).