Opinion issued May 11, 2006
In The
Court of Appeals
For The
First District of Texas
NOS. 01-05-00715-CR
01-05-00716-CR
MARTIN CESAR LEAL, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 262nd District Court
Harris County, Texas
Trial Court Cause Nos. 1030508 and 1012077
MEMORANDUM OPINION
Following a joint jury trial on two separate indictments, appellant was convicted of indecency with a child and aggravated sexual assault against C.L., the complainant, who is appellant’s daughter. See Tex. Pen. Code Ann. § 21.11(a) (Vernon 2003), § 22.021(a)(1)(B), (2)(B) (Vernon Supp. 2005). The jury assessed punishment at 20 years’ confinement for the indecency-with-a-child offense and assessed punishment at 60 years’ confinement for the aggravated-sexual assault offense. The trial court ordered the sentences to run cumulatively.
In each appeal, appellant (1) contends that the trial court erred when it ruled that appellant’s prior, probated felony conviction from Alabama was admissible for impeachment purposes and (2) challenges the legal and factual sufficiency of the evidence to support his convictions. In his appeal of the indecency-with-a-child conviction, appellant also complains that the trial court erred in cumulating his sentence in the indecency-of-with-a-child case with the sentence in the aggravated-sexual-assault case.
We affirm.
Background
On the morning of October 31, 2004, seven-year-old C.L. went into her parents’ bedroom. C.L. was wearing only her underwear because she had been hot during the night. Appellant, who is C.L.’s father, was in the bedroom. Appellant put C.L. on the bed and pulled C.L.’s underwear to the side and placed what C.L. described as appellant’s “middle part” inside her “middle part.” C.L. told appellant that it hurt, but appellant said nothing. Appellant then got some cream from a drawer and put some of the cream on his penis. At that point, appellant’s wife, Erika, who is C.L.’s mother, came into the room.
Erika saw C.L. lying on the bed. She also saw appellant standing near the bed, very close to C.L. Appellant was looking at C.L. and had his shorts pulled down around his knees, exposing his penis. Appellant turned away from Erika. Erika noticed that C.L. looked scared and nervous. Erika asked C.L. if appellant had done something to her. Appellant responded that nothing had happened. C.L. stared at appellant but did not say anything. Appellant grabbed some dirty jeans from a basket and tried to change the conversation. C.L. told her mother that appellant had pulled her underwear to the side and had put his penis inside of her. Appellant told Erika that C.L. was lying and that Erika should not believe her. Appellant then went into the bathroom and took a shower.
Erika took C.L. into the child’s bedroom to talk to her. C.L. was nervous and crying and again related to Erika what had occurred. C.L. also told Erika that, two days before, when C.L. had been sleeping in her parents’ bed with Erika, appellant had come into the room and had awakened her in the middle of the night. After waking her, appellant had then made C.L. touch his penis.
Erika went to appellant and told him that they had to talk. Appellant again told Erika that C.L. was lying and that Erika should believe him. Appellant got dressed and went outside. At some point, Erika called her sister and told her what had occurred. The sister then called their brother, who then called the City of Baytown police.
A Baytown police officer was dispatched to the home. Erika told the officer what C.L. had related to her. The police officer told Erika that she should take C.L. to the hospital for a rape kit to be performed. Erika took C.L. to Texas Children’s Hospital where she was examined by Dr. Joseph Allen that same day.
Appellant was indicted for aggravated sexual assault for the incident that occurred on October 31, 2004 when, as stated in the indictment, he placed “his sexual organ in the female sexual organ” of C.L. Appellant was also indicted for indecency with a child for making C.L. touch his penis with her hand. The two offenses were tried together to a jury.
At trial, C.L. testified that, on the morning of Halloween 2004, “[m]y dad put me in the bed and he put his middle part inside my middle part.” Using anatomically correct dolls, the prosecution established that C.L. called both the female and male sexual organs “the middle part.” When asked whether appellant had put his middle part “all the way inside your middle part” or a “little bit inside your middle part,” C.L. responded “a little bit.” C.L. confirmed that appellant had put his “middle part” in the “hole” in her “middle part.” C.L. testified that it had hurt.
C.L. also told the jury that on another occasion she was asleep in her parents’ bed with her mother. She testified that appellant had been in the other room watching television. Appellant came into the bedroom and woke up C.L. According to C.L., appellant had placed her hand inside his boxer shorts and forced her to touch his “middle part.”
Erika told the jury that, on the morning of October 31, 2004, she had walked into the bedroom and had seen C.L. lying on the bed with appellant standing near her exposing his penis. Erika testified that C.L. told her that appellant had pulled her underwear to the side and had put his penis inside of her. Erika stated that C.L. had also related to her that appellant had awakened C.L. a couple of days earlier and had made her touch his penis.
Dr. Allen also testified at trial. He testified that his examination had revealed that C.L. had redness on the sides of her genital area. Dr. Allen told the jury that the redness was consistent with the description offered by C.L. that appellant had put his “middle part” inside her “middle part.” When asked whether “penetration” of C.L.’s sexual organ had occurred in this case, Dr. Allen stated that he believed that it had. Dr. Allen testified that he understood “penetration” to occur when “the plane of the labia” is broken. According to Dr. Allen, the medical evidence in this case was consistent with the penetration of C.L.’s labia.
Impeachment
Appellant raises the identical first two points of error in each appeal. Appellant contends that the trial court erred by ruling that it would allow the State to impeach him with his prior, probated felony conviction from Alabama for “trafficking in cannabis.” In his first point of error, appellant relies on Texas Rule of Evidence 609(c)(2) and asserts that “[t]he trial court committed reversible error in ruling appellant’s prior probated felony conviction admissible for impeachment purposes, where the probation period had expired prior to trial, and where the State failed to offer any evidence or proof as to why the probation would be admissible.” In his second point of error, appellant contends that the prior probated felony conviction was inadmissible pursuant to Texas Rule of Evidence 609(a) because the prejudicial effect of the conviction outweighed its probative value.
On the second day of trial, appellant filed in each case a “Motion to Testify Free from Impeachment” in response to the State’s notice that it would seek to impeach appellant with “his prior convictions and bad acts.” Appellant asserted that the trial court should determine “whether the probative value of the prior convictions and bad acts are outweighed by their prejudicial value.” In support of the motion, appellant argued and applied the factors enunciated in Theus v. State, 845 S.W.2d 874 (Tex. Crim. App. 1992).
Also on the second day of trial, the trial court conducted a hearing outside the presence of the jury on appellant’s motion. Appellant argued that, under the factors found in Theus, his prior, probated felony conviction should not be admitted. Appellant also argued that evidence of the conviction should not be admitted because uncertainty existed as to whether it was a “final” conviction, whether appellant had successfully competed the probation, and whether the conviction had been dismissed following completion of his probation. At the conclusion of the hearing, the trial court denied appellant’s motion.
Appellant’s Theus motion and his oral arguments offered at the hearing were, in substance and relief sought, a motion in limine. See Johnson v. State, 981 S.W.2d 759, 760 (Tex. App.—Houston [1st Dist.] 1998, pet. ref’d). Neither the granting nor denial of a motion in limine is alone sufficient to preserve error for appellate review; error is properly preserved by objecting at the very time the evidence is offered at trial before the trier of fact. Webb v. State, 760 S.W.2d 263, 275 (Tex. Crim. App. 1988). To raise and preserve a claim of improper impeachment through prior convictions, we have previously held that the defendant must actually testify. Morgan v. State, 891 S.W.2d 733, 735 (Tex. App.—Houston [1st Dist.] 1994, pet. ref’d); see also Luce v. United States, 469 U.S. 38, 42, 105 S. Ct. 460, 463 (1984) (holding that defendant must actually testify to preserve error on improper impeachment under Federal Rule of Evidence 609(a)). Without a factual record of the defendant’s testimony, a reviewing court is unable to weigh the probative value of the impeachment evidence against its prejudicial effect. Morgan, 891 S.W.2d at 735; see also Luce, 469 U.S. at 41, 105 S. Ct. at 463. Because appellant did not testify at trial, the prior conviction was never offered; therefore, any possible harm from the trial court’s in limine rulings would be entirely speculative. See Luce, 469 U.S. at 41–42, 105 S. Ct. at 463.
Appellant further contends the trial court’s ruling prevented him from testifying. Despite appellant’s contention, nothing in the record shows appellant’s decision not to testify was motivated solely by the trial court’s preliminary ruling. An accused’s decision not to testify seldom turns on a single factor; therefore, a reviewing court cannot assume an adverse ruling motivated a defendant’s decision not to testify. Id. 469 U.S. at 42, 105 S. Ct. at 463. We hold that, because he did not testify, appellant waived any complaints about the trial court’s in limine rulings regarding the use of his prior, probated felony conviction for impeachment purposes. See Morgan, 891 S.W.2d at 735.
We overrule the first and second points of error in each appeal.
Sufficiency of the Evidence
In his third and fourth points of error, appellant challenges the legal and factual sufficiency of the evidence as to each offense.
A. Standards of Review
A legal-sufficiency challenge requires us to determine whether, after viewing the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000); Howley v. State, 943 S.W.2d 152, 155 (Tex. App.—Houston [1st Dist.] 1997, no pet.). Although our analysis considers all of the evidence presented at trial, we may not re-weigh the evidence and substitute our judgment for that of the fact-finder. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000).
In a factual-sufficiency review, we view all of the evidence in a neutral light, and we will set the verdict aside only if the evidence is so weak that the verdict is clearly wrong and manifestly unjust or if the contrary evidence is so strong that the standard of proof beyond a reasonable doubt could not have been met. Escamilla v. State, 143 S.W.3d 814, 817 (Tex. Crim. App. 2004) (citing Zuniga v. State, 144 S.W.3d 477, 481 (Tex. Crim. App. 2004)). We must defer appropriately to the fact-finder to avoid substituting our judgment for its judgment. Zuniga, 144 S.W.3d at 481–82. Our evaluation may not intrude upon the fact-finder’s role as the sole judge of the weight and credibility accorded any witness’s testimony. Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). As the evaluator of credibility and demeanor, the fact-finder alone determines what weight to place on contradictory testimonial evidence. Id. at 408. The fact-finder may choose to believe all, some, or none of the testimony presented. Id. at 407. In conducting a factual-sufficiency review, we must discuss the evidence that, according to appellant, most undermines the jury’s verdict. See Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).
B. Indecency with a Child
1. Legal Sufficiency Analysis
In his third point of error with regard to his indecency-with-a-child conviction, appellant contends that the evidence is legally insufficient to support his conviction because C.L.’s testimony incriminating appellant was not credible.
As mentioned, C.L. testified that one night while she was asleep in her parents’ bed with her mother, appellant came into the bedroom and awoke her. C.L. told the jury that appellant then forced her to place her hand inside his boxer shorts and touch his “middle part,” which the State established was appellant’s “male sexual organs.” Appellant contends that this testimony is uncorroborated by either medical evidence or a witness to the act. However, such corroborating evidence is not required. The testimony of a child victim alone is sufficient to support a conviction for indecency with a child. See Tex. Code Crim. Proc. Ann. art. 38.07 (Vernon 2005); Perez v. State, 113 S.W.3d 819, 838 (Tex. App.—Austin 2003, pet. ref’d). Appellant asserts that, “at some point the credibility [of] the complainant is so undermined that a reviewing court cannot have confidence in a verdict supported solely by the complainant’s testimony.” Other than arguing that C.L.’s testimony was uncorroborated, appellant offers nothing to show why C.L.’s credibility was “so undermined.”
The jury is the sole judge of the credibility of witnesses and of the strength of the evidence. Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Crim. App. 1999). We act only to ensure that the jury reached a rational decision. Muniz v. State, 851 S.W.2d 238, 246 (Tex. Crim. App. 1993). Viewing the evidence in the light most favorable to the verdict, we conclude that a rational trier of fact could have found beyond a reasonable doubt all the essential elements of the offense of indecency with a child. See Tex. Pen. Code Ann. § 21.11(a) (listing elements of indecency with a child). Thus, we hold that the evidence was legally sufficient to support appellant’s conviction for indecency with a child.
We overrule the third point of error in appellant’s appeal of his indecency-with-a-child conviction.
2. Factual Sufficiency Analysis
In his fourth point of error with regard to his indecency-with-a-child conviction, appellant contends that the evidence is factually insufficient to support his conviction because C.L.’s testimony incriminating appellant was not credible. Again, appellant asserts that the testimony is not credible because there was no “scientific or other evidence” to corroborate C.L.’s testimony and because no one else witnessed the act. The lack of physical or forensic evidence is a factor for the jury to consider in weighing the evidence. See Johnson v. State, 176 S.W.3d 74, 78 (Tex. App.—Houston [1st Dist.] 2004, pet. ref’d) (holding that differences in witness testimony and lack of physical evidence are factors for jury to consider in weighing evidence). As discussed above, the State presented evidence, through C.L.’s testimony, that appellant committed the offense of indecency with a child. See Tex. Pen. Code Ann. § 21.11(a). Appellant cites no evidence that he contends undermines C.L.’s testimony or the jury’s verdict.
An appellate court may not reweigh the evidence—including reviewing the credibility of witnesses. Cain, 958 S.W.2d at 407. As the determiner of the credibility of the witnesses, the fact-finder may choose to believe all, some, or none of the testimony presented. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). Here, the jury found C.L. to be a credible witness and chose to believe her version of the events.
When viewed in a neutral light, we conclude that the evidence is not so weak that the verdict is clearly wrong and manifestly unjust; neither was the contrary evidence so strong that the standard of proof beyond a reasonable doubt could not have been met. See Escamilla, 143 S.W.3d at 817. We hold, therefore, that the evidence was factually sufficient to support appellant’s conviction for indecency with a child.
We overrule the fourth point of error in appellant’s appeal of his indecency-with-a-child conviction.
C. Aggravated Sexual Assault
1. Legal Sufficiency Analysis
In his third point of error with regard to his aggravated sexual assault conviction, appellant also contends that the evidence is legally insufficient to support his conviction because C.L.’s testimony incriminating appellant was not credible.
As described, C.L. told the jury that appellant stuck his “middle part” in her “middle part” and described the events surrounding the assault. Appellant initially contends that C.L.’s testimony is uncorroborated by either testimony or other evidence. Appellant then acknowledges that C.L.’s testimony is corroborated by Erika’s testimony that she walked in to see C.L. lying on the bed with appellant standing nearby exposing his penis and by Dr. Allen’s testimony that the redness in C.L.’s genital area was consistent with C.L.’s sexual assault claim. Appellant asserts, however, that the “record fails to show that any exposure to the complainant [of appellant’s penis] was not accidental.” Appellant also points out that Dr. Allen’s “observations were also consistent with other causes” of the redness in C.L.’s genital area.
As set forth above, a legal-sufficiency challenge requires us to view the evidence in the light most favorable to the verdict. Johnson, 23 S.W.3d at 7. We are also prohibited from re-weighing the evidence and substituting our judgment for that of the fact-finder. King, 29 S.W.3d at 562. Appellant’s arguments with regard to Erika’s and Dr. Allen’s testimony are not in keeping with these standards.
In any event, C.L.’s testimony alone was sufficient to support the aggravated-sexual-assault conviction. It is well-established that a child victim’s testimony alone is sufficient evidence to support a conviction for aggravated sexual assault. Tex. Code Crim. Proc. Ann. art. 38.07(Vernon 2005); Perez, 113 S.W.3d at 838; Empty v. State, 972 S.W.2d 194, 196 (Tex. App.—Dallas 1998, pet. ref’d).
Appellant also asserts that, “at some point the credibility [of] the complainant is so undermined that a reviewing court cannot have confidence in a verdict supported solely by the complainant’s testimony.” Other than arguing that C.L.’s testimony was not sufficiently corroborated, appellant does not show how C.L.’s credibility was “so undermined.”
Viewing the evidence in the light most favorable to the verdict, we conclude that a rational trier of fact could have found beyond a reasonable doubt all the essential elements of the offense of aggravated sexual assault. See Tex. Pen. Code Ann. § 22.021 (listing elements of aggravated sexual assault). Thus, we hold that the evidence was legally sufficient to support appellant’s conviction for aggravated sexual assault.
We overrule the third point of error in appellant’s appeal of his aggravated-sexual-assault conviction.
2. Factual-Sufficiency Analysis
In his fourth point of error with regard to his aggravated-sexual-assault conviction, appellant again contends that the evidence is factually insufficient to support his conviction because C.L.’s testimony incriminating appellant was not credible. Appellant asserts that Erika’s testimony shows only that appellant was “accidently exposing himself to the complainant.” We disagree. Though it was free to draw such conclusion, the jury also could have reasonably concluded that appellant’s penis was exposed because he had just sexually assaulted C.L. Such conclusion would have been supported by Erika’s testimony that appellant was standing very close to C.L., he was looking at C.L., and he quickly turned away from Erika when she entered the bedroom.
Appellant also contends that “the scientific evidence was simply not persuasive enough to tip the balance in favor of the complainant’s testimony.” We presume that appellant is referring to the testimony of Dr. Allen, who testified that the medical evidence was consistent with C.L.’s claim of sexual assault. On cross-examination, Dr. Allen stated that redness in a girl’s genital area can be caused by chemical irritation or infection. However, Dr. Allen also testified that it would be unusual for chemical irritation or an infection to result in redness that had a symmetrical pattern like what he observed on C.L.
When viewed in a neutral light, we conclude that the evidence is not so weak that the verdict is clearly wrong and manifestly unjust; neither was the contrary evidence so strong that the standard of proof beyond a reasonable doubt could not have been met. See Escamilla, 143 S.W.3d at 817. We hold the evidence to be factually sufficient to support appellant’s aggravated-sexual-assault conviction.
We overrule the fourth point of error in appellant’s appeal of his aggravated-sexual-assault conviction.
Cumulation of Sentences
In his fifth point of error in the appeal of his indecency-with-a-child conviction, appellant contends that the trial court’s cumulation order violates his Sixth Amendment right to a trial by jury because there was no jury finding beyond a reasonable doubt or an admission in open court that the offenses arose out of the same criminal episode.
Appellant acknowledges that the trial court had the authority to cumulate his sentences pursuant to Penal Code section 3.03(b)(2)(a). Nonetheless, he contends that the order violated his right to a trial by jury because there was no jury finding beyond a reasonable doubt or an admission by him in court that the offenses arose out of the same criminal episode. In support of his contention, appellant cites Apprendi v. New Jersey for its holding that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and found beyond a reasonable doubt.” 530 U.S. 466, 490, 120 S. Ct. 2348, 2362–63 (2000). Appellant also relies on United States v. Booker, in which the Supreme Court reaffirmed its hold in Apprendi, as follows: “Any fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt.” 543 U.S. 220, 244, 125 S. Ct. 738, 756 (2005).
In analyzing appellant’s contentions, we first note that appellant does not correctly read section 3.03. Texas trial courts have the discretion to order cumulative sentences in nearly every case. See Tex. Code Crim. Proc. Ann. art. 42.08(a) (Vernon Supp. 2005). The principal exception to this rule is found in Penal Code section 3.03(a), which provides that if a defendant is found guilty at a single trial of more than one offense arising out of the same criminal transaction, the sentences for each offense must run concurrently. Tex. Pen. Code Ann. § 3.03(a) (Vernon 2003). “Section 3.03(b)(2)(A) creates an exception to this exception; that is, it exempts certain offenses, including indecency with a child and aggravated sexual assault of a child, from the application of section 3.03(a).” Millslagle v. State, 150 S.W.3d 781, 784 (Tex. App.—Austin 2004, pet. dism’d) (citing Tex. Pen. Code Ann. 3.03(b)(2)(A)). Due to the nature of the offenses for which appellant was convicted, the trial court was authorized to cumulate the sentences regardless of whether the offenses arose out of the same criminal episode.
Second, appellant’s Apprendi-Booker argument is without merit. The focus in the Apprendi line of cases “is on whether the trial court, rather than the jury, has made a fact finding that causes the sentence imposed to exceed the statutory maximum for a single count.” Baylor v. State, NO. 04–04–00759–CR, 2006 WL 228635, at *3 (Tex. App.—San Antonio Feb. 1, 2006, no pet. h.) (designated for publication) (citing Unites States v. McWaine, 290 F.3d 269, 276 (5th Cir. 2002)). As noted by the Waco Court of Appeals: “The federal appellate courts have uniformly rejected the contention that Apprendi is violated when a trial court orders the cumulation of sentences which individually lie within the statutory range of punishment but for which the cumulative total exceeds the prescribed statutory maximum for any single offense.” Marrow v. State, 169 S.W.3d 328, 330–31 (Tex. App.—Waco 2005, pet. ref’d). The court also noted that, at that time, Texas courts had reached the same conclusion, but only in unpublished cases. Id. at 331 n.4.
Adopting the holding of the cited federal and unpublished state authorities, the court in Marrow concluded that no Apprendi violation was shown when the appellant did not dispute that the sentence for each count was within statutory range. Id. In Tyson v. State, the Fort Worth Court of Appeals agreed with Marrow, “and the federal authority and unpublished state cases cited in Marrow,” to support its holding that the trial court did not violate Apprendi and its progeny when it stacked a defendant’s sentences in accordance with article 42.08 and section 3.03(b). 172 S.W.3d 172, 177 (Tex. App.—Fort Worth 2005, pet. ref’d).
Appellant does not dispute that the sentence for each offense lies within the prescribed statutory range. We agree with the holdings of Marrow and Tyson and conclude that the trial court did not violate the standards found in Apprendi and Booker when it stacked appellant’s sentences in accordance with article 42.08 and section 3.03(b)(2)(A). Thus, we hold that the trial court’s cumulation order did not violate appellant’s Sixth Amendment right to a trial by jury.
We overrule appellant’s fifth point of error.
Conclusion
We affirm the judgments of the trial court.
Laura Carter Higley
Justice
Panel consists of Justices Taft, Higley, and Bland
Do not publish. Tex. R. App. P. 47.2(b).