In The
Court of Appeals
For The
First District of Texas
____________
NO. 01-07-00343-CR
____________
RAFEAL MARTINEZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 228th District Court
Harris County, Texas
Trial Court Cause No. 1040118
MEMORANDUM OPINION
A jury convicted appellant, Rafeal Martinez, of aggravated sexual assault of A.R., a child under the age of fourteen, and the trial court assessed punishment at life in prison. Tex. Penal Code Ann. §22.021(a)(1)(B)(iii) (Vernon 2003 & Supp. 2007). Appellant contends that the evidence is legally and factually insufficient to support the conviction, and that the trial court erred in admitting State's Exhibit 3, a videotape. We affirm.
Facts
While her mother was bathing her on August 23, 2005, A.R., a four-year-old, complained that "her privates were burning and hurting." When asked if anyone had touched her there, she said "yes" and identified her Uncle Victor, who is the brother of her stepfather, Angel Martinez. While being interviewed later by Claudia Mullin, a forensic interviewer with the Harris County Children's Assessment Center, A.R. made an outcry to Mullin that her "Uncle Ralph" (appellant) had also touched her and had "licked her flower." Mullin discerned that "flower" meant A.R.'s genital area. A.R. eventually stated that she had been sexually abused by four men as follows: her Uncle Victor; appellant; Ramon Perez, a family friend; and Brayton Adams, a family friend and former boyfriend of A.R.'s mother's sister. Appellant babysat A.R. more than five times.
A.R. testified at trial that the first instance of sexual abuse by appellant took place when she was home alone with her brother and appellant. When she went "downstairs" to get a drink of water, appellant, who was seated on the couch in the living room, told A.R. to come to him. After she approached, appellant pulled down A.R.'s pants and undergarments and put his hand on her "flower." At trial, A.R. identified her "flower" as her genitalia. While touching her, appellant told A.R. not to tell anyone what he had done. A.R. told appellant to stop, which he did, and she ran to her room and locked the door.
The second incident occurred at night while A.R.'s parents were in their bedroom watching television. Appellant was spending the night at the apartment. While going to the bathroom and to get a drink of water, she ran into appellant, whom she identified as the same man who had touched her "flower" the first time. Appellant told A.R. to come to him and then lifted her and put her on the couch, where he pulled down her shorts and undergarments. After pulling off A.R.'s undergarments, appellant touched her "flower" with his tongue, "it was going up and down . . . inside of my flower." Appellant told A.R. not to tell anyone what he had done. A.R. told appellant to stop, which he did, and she went "upstairs."
At trial, A.R. identified State's Exhibit 2, a photograph of appellant at the time of the alleged abuse, as her Uncle Ralph, "the boy that--the one that sexually abused me," but she could not identify him in the courtroom. A.R. defined "sexually abused" as "a guy touched you is where--is where that they're not supposed to touch you." Using anatomically correct dolls, she was able to identify the breasts, bottom, and "flower" as the places on a girl that a person is never supposed to touch.
Just before A.R.'s mother found out about the alleged abuse, A.R. had become "clingy" with her mother; "[s]he didn't never [sic] want to leave my side." She also began wetting the bed, "acting like a baby," cried a lot, became afraid of men, and started having nightmares. (1) When talking with her mother about the abuse, A.R. did not confuse the four men she accused of abusing her and did not confuse what they did to her.
While interviewing A.R. on August 23, 2005, Claudia Mullin found her to be on target developmentally. A.R. was able to give details of the alleged assault according to her developmental age. At that age, "[t]hey can answer who, what, where and how, but not when." In addition, A.R. was able to give spontaneous details during the interview. This was important to Mullin "because it adds to the visual that she's reliving something and she's filling in the blanks." (2) A.R. also used sensory detail to describe her abuse by demonstrating to Mullin how appellant had lifted her up on to the couch and using her hand to demonstrate how he licked her. (3) During her interview with Mullin, A.R. was consistent in recounting what had happened to her. "[S]he repeated exactly the same thing and, you know, was saying what happened to her again in almost the exact same way, but giving me more detail about where he was and where she was." A.R. was also consistent in distinguishing between the actions of the separate abusers.
Mullin stated that children commonly tell an interviewer about other abusers. It is also common for a child to be revictimized, Mullin explained, because they have been desensitized, and their "boundaries are down."
A.R. received treatment from two therapists, Karen Sullivan of Child Advocates of Fort Bend and Elizabeth Esquivel of the Children's Assessment Center of Houston. (4) During her therapy with Sullivan, A.R. was consistent in her descriptions of the abuse. She did not seem confused and did not recant her allegations. Sullivan testified that A.R. gave a "very credible" statement about appellant. According to Esquivel, A.R. showed behaviors typical of a sexual abuse victim and never recanted her story during therapy. Neither Sullivan nor Esquivel was able to identify appellant as A.R.'s abuser.
After A.R. named "Uncle Ralph" as a perpetrator in her interview with Mullin, Detective J. Stephens was assigned to investigate the case. Detective Stephens had been a police officer for 16 years, nine of which he had spent in the child-abuse division. After interviewing her, Detective Stephens found that A.R's. statements were consistent, and that she had sexual knowledge beyond her years.
As part of his investigation of appellant, Stephens invited him to give a voluntary statement in response to A.R.'s allegations. State's Exhibit 3 is the videotape of that interview. During the interview with Detective Stephens, appellant stated that he believed A.R. to be truthful and that she would not lie. Appellant did not think A.R. was lying about the allegations regarding her Uncle Victor. When informed that A.R. had made similar allegations against him, appellant described an incident in which he was bouncing A.R. on his knee and had possibly grabbed her in her vaginal area when she began to fall. When Officer Stephens told appellant that A.R. said that he had touched her vagina with his mouth, appellant continued to repeat the story that an accidental touching had occurred; he "could not recall" that anything that A.R. described had occurred.
Detective Stephens testified that appellant's answers and his statements made during the interview, that he cannot be "around kids," are consistent with attempts by sexual abuse suspects to minimize their involvement. Based on his experience interviewing suspects, Detective Stephens opined that appellant's persistence in repeating the accidental touching stories, despite allegations of a different form of touching, was consistent with a perpetrator who is not telling the truth, but using an answer prepared in advance of the interview.
Legal Sufficiency Challenge
Appellant's first issue disputes the legal sufficiency of the evidence to support his conviction. Specifically, appellant argues that (1) the inability of A.R. to identify him at trial as the perpetrator of her alleged assault; (2) the failure of the State to identify him as the same individual interviewed on the videotape, State's Exhibit 3; and (3) the inability of the expert witnesses to identify him as A.R.'s abuser, render his conviction legally insufficient.
A. Standard of Review
When evaluating the legal sufficiency of the evidence, we view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Drichas v. State, 175 S.W.3d 795, 798 (Tex. Crim. App. 2005). The standard is the same for both direct and circumstantial evidence cases. King v. State, 895 S.W.2d 701, 703 (Tex. Crim. App. 1995). We do not resolve any conflict of fact, weigh any evidence, or evaluate the credibility of any witnesses, as this is the function of the trier of fact. See Adelman v. State, 828 S.W.2d 418, 421 (Tex. Crim. App. 1992); Matson v. State, 819 S.W.2d 839, 843 (Tex. Crim. App. 1991). Instead, our duty is to determine whether both the explicit and implicit findings of the trier of fact are rational by viewing all the evidence admitted at trial in the light most favorable to the verdict. See Adelman, 828 S.W.2d at 422. In conducting our review, we resolve any inconsistencies in the evidence in favor of the verdict. Matson, 819 S.W.2d at 843. A person commits aggravated sexual assault of a child if he intentionally or knowingly causes the sexual organ of a child to contact or penetrate the mouth, anus, or sexual organ of another person, including the actor. Tex. Penal Code Ann. §22.021(a)(1)(B)(iii) (Vernon 2003 & Supp. 2007). The testimony of the child victim alone is sufficient to support the conviction for sexual abuse. Tex. Code Crim. Proc. Ann. art. 38.07(a) (Vernon 2005); Tran v. State, 221 S.W.3d 79, 88 (Tex. App.--Houston [14th Dist.] 2005, pet. ref'd).
B. Discussion
Having reviewed the evidence in the requisite light, we conclude that A.R.'s testimony was legally sufficient to establish that appellant sexually assaulted her, as section 22.021(a)(1)(B)(iii) of the Penal Code defines that offense and as charged in the indictment. Although A.R. could not identify appellant in person at trial, she was able to identify a photograph of appellant near the time that the abuse happened as "[t]he boy that--the one that sexually abused me." A.R.'s mother, in turn, identified the man in the same photograph as appellant and pointed him out in the courtroom. It is undisputed that, since the last time A.R. saw appellant before trial, appellant had shaved his facial hair and had changed his hairstyle. Appellant also argues that A.R. had been coached in her therapy sessions to identify the man in the photograph as the boy who sexually abused her. But it was the role of the jury, as fact-finder, and is not the role of this Court, to determine A.R.'s credibility. See Adelman, 828 S.W.2d at 421.
We hold that a reasonable jury could find beyond a reasonable doubt from A.R.'s identification of the man in the photograph as the man who abused her, together with A.R.'s mother's identification of the man in the photograph that A.R. had used to identify appellant as appellant, that appellant sexually abused A.R.. Because the testimony of A.R. is sufficient alone to uphold a conviction for aggravated sexual assault pursuant to article 38.07 of the Code of Criminal Procedure, we need not reach appellant's second and third challenges to legal insufficiency of the evidence to support his conviction. See Tex. Code Crim. Proc. Ann. art. 38.07(a).
We overrule appellant's first issue.
Factual Sufficiency of the Evidence
Appellant's factual sufficiency challenge in issue two focuses on (1) A.R.'s testimony that the sexual assaults occurred "downstairs" in a single-floor apartment, (2) the inability of A.R.'s therapists to state that appellant sexually abused A.R., (3) the lack of medical evidence or photo-identification evidence of A.R.'s outcry identification of appellant as the person who sexually assaulted her, (4) the inability of A.R. to identify appellant as the "Uncle Ralph" who sexually assaulted her, (5) the failure of Detective Stephens to identify appellant at trial as the same Ralph Martinez he interviewed on August 31, 2005, and (6) appellant's choice not to flee.
A. Standard of Review
In conducting a factual-sufficiency review, we view all of the evidence in a neutral light, Cain v. State, 958 S.W.2d 404, 408 (Tex. Crim. App. 1997), and will set the verdict aside only if (1) the evidence is so weak that the verdict is clearly wrong and manifestly unjust or (2) the verdict is against the great weight and preponderance of the evidence. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). Under the first prong of Johnson, we cannot conclude that a conviction is "clearly wrong" or "manifestly unjust" simply because, on the quantum of evidence admitted, we would have voted to acquit had we been on the jury. Watson v. State, 204 S.W.3d 404, 417 (Tex. Crim. App. 2006). Under the second prong of Johnson, we cannot declare that a conflict in the evidence justifies a new trial simply because we disagree with the jury's resolution of that conflict. Id. Before finding that evidence is factually insufficient to support a verdict under the second prong of Johnson, we must be able to say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury's verdict. Id. In conducting a factual-sufficiency review, we must also discuss the evidence that the appellant contends most undermines the jury's verdict. See Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003). The fact-finder alone determines what weight to place on contradictory testimony because that determination depends on the fact-finder's evaluation of credibility and demeanor. Cain, 958 S.W.2d at 408-09. As the determiner of the credibility of the witnesses, the fact-finder may choose to believe all, some, or none of the testimony presented. Id. at 407 n.4.
B. Discussion
In reviewing all the evidence in the requisite neutral light, we cannot conclude that the evidence is so weak that the verdict is clearly wrong or manifestly unjust, or that the verdict is against the great weight or preponderance of the evidence. We note at the outset that the perceived inconsistency in A.R.'s testimony does not pertain to the operative elements of the offense, but to location of the offense and the physical description of the apartment where this young child lived with her parents. Child victims of violent crimes cannot be expected to testify with the same clarity and ability expected of adults. Villalon v. State, 791 S.W.2d 130, 134 (Tex. Crim. App. 1990).
Despite the perceived inconsistency in A.R.'s description of the "upstairs" location of her bedroom, the record demonstrates marked consistency in her claims of sexual abuse by appellant and others. A.R. never denied that appellant sexually abused her. Mullin testified that A.R. was consistent in recounting what happened to her and in distinguishing between the actions of the separate abusers. According to Mullin, A.R.'s use of spontaneous and sensory detail gave credibility to her outcry. Sullivan testified that A.R. gave a "very credible" statement, was consistent in her descriptions of the abuse, and did not recant her allegations. Similarly, Esquivel testified that A.R. showed behaviors of a sexual abuse victim and never recanted her story. Detective Stephens also found that A.R. was consistent in recounting her assaults, and that she had sexual knowledge beyond her years.
Deciding what weight to accord contradictory testimony is within the sole province of the jury, Cain, 958 S.W.2d at 408-09, which is also the sole judge of the credibility of the witnesses and is free to believe or disbelieve any portion of a witness' testimony. Id. at 407 n.4. Though presented with evidence that A.R. was wrong when she said the abuse took place "downstairs," the jury chose to believe A.R. to be credible, as shown by its verdict. This inconsistency in A.R.'s testimony regarding physical locations, when compared to her otherwise consistent testimony and the testimony of the other witnesses, does not compel the conclusion that the evidence at trial is so weak that the verdict is clearly wrong or unjust or against the great weight or preponderance of the evidence.
Appellant next argues that the evidence is factually insufficient because (1) A.R.'s therapists did not state that appellant sexually abused her and (2) the State presented no medical or photo-identification evidence that A.R. had previously identified appellant as the person who sexually assaulted her. In sexual abuse cases, however, the testimony of the child victim alone is sufficient to support the conviction. Tex. Code Crim. Proc. Ann. art. 38.07(a) (Vernon 2005); Tran, 221 S.W.3d at 88. Accordingly, neither medical evidence nor expert testimony that appellant sexually assaulted A.R. is necessary for the evidence to be factually sufficient to support a conviction for aggravated sexual assault. Id.
Appellant further contends that the evidence is factually insufficient because A.R. did not identify him as the man who sexually assaulted her and because Detective Stephens did not identify appellant at trial as the same Ralph Martinez whom he interviewed on August 31, 2005. A totality of the circumstances test determines whether the evidence sufficiently proves that appellant is the individual alleged to have committed the offense. Miller v. State, 667 S.W.2d 773, 776 (Tex. Crim. App. 1984); see Rohlfing v. State, 612 S.W.2d 598, 601 (Tex. Crim. App. 1981).
A.R. was able to identify the man in the photograph, State's Exhibit 2, as the man who abused her, and her mother was able to identify the man in the same photograph as appellant. The inability of A.R. to identify appellant as her abuser at trial can readily be explained by the differences in the appearance of appellant since A.R. last saw him and at trial. And though Detective Stephens did not identify appellant as the man in the videotape, appellant identified himself as Ralph Martinez during the videotaped interview, which enabled the jury to compare the man speaking to Detective Stephens in the videotape with appellant, seated in the courtroom, and with the man in the photograph. Under the totality of these circumstances, the evidence presented is factually sufficient to support identification of appellant as A.R.'s abuser. See Miller, 667 S.W.2d at 776.
Lastly, appellant argues that his decisions not to flee and to speak to Detective Stephens demonstrate that the verdict is against the great weight and preponderance of the evidence. We cannot agree that evidence that appellant chose not to flee so overwhelms the great weight of the State's evidence that the verdict is manifestly wrong and unjust.
The State presented testimony by A.R. that appellant sexually abused her. A.R.'s therapists testified that A.R. never varied in recounting details of the assaults, showed behavior consistent with that of a child victim, was articulate and provided spontaneous sensory detail that enforced the reality of the assault, and that abuse by multiple parties is common. Likewise, Detective Stephens testified that appellant's reactions to A.R.'s accusations are those Stephens commonly associates with guilty parties. Having examined the record and considered the evidence in the requisite neutral light, in particular the evidence that appellant contends most undermines the verdict, we cannot say that the jury's finding appellant guilty was so contrary to the overwhelming weight of the evidence as to be manifestly wrong and unjust. See Watson, 204 S.W.3d at 414-15.
We overrule appellant's second issue.
Admission of Videotaped Statement
In his third issue, appellant contends that the trial court erred by admitting State's Exhibit 3, the taped interview between Detective Stephens and appellant in which appellant stated, "I can't be around kids. No, after that bouncing on the knee incident, I talked to Angel and I stopped playing with the kids. I knew I couldn't be around kids." Appellant argues that his stating that he cannot be around kids would serve to alert the jury of his previous criminal or bad acts. Appellant supports his argument by emphasizing that the prosecution referred to the statement in argument to the jury to bolster its contention that appellant was guilty and had acted in conformity with his character as a child predator.
To preserve an issue for appeal, a party must timely object and state the specific legal basis of the objection. Tex. R. App. P. 33.1(a)(1); Rhoades v. State, 934 S.W.2d 113, 121, 127 (Tex. Crim. App. 1996). An objection stating one legal theory, however, cannot support a different legal theory on appeal. Medina v. State, 7 S.W.3d 633, 643 (Tex. Crim. App. 1999); Camacho v. State, 864 S.W.2d 524, 533 (Tex. Crim. App. 1993). Unless the issue raised on appeal comports with the objection made at trial, so that the trial judge had an opportunity to rule on that issue, nothing is preserved for appellate review. Johnson v. State, 803 S.W.2d 272, 292 (Tex. Crim. App. 1990), overruled on other grounds by Heitman v. State, 815 S.W.2d 681, 690 (Tex. Crim. App. 1991).
At trial, Appellant objected to the admission of the videotape evidence by invoking Tex. R. Evid. 403, contending that the use of the videotape would "be highly prejudicial--any prejudice would outweigh any probative value to leave that in the tape." Appellant presents a different issue here and invokes Tex. R. Evid. 404(b) to argue that the use of the videotaped evidence "could only serve to alert jurors" not only that he had committed a previous criminal or bad act that resulted in a formal restraint of his ability to be in the presence of children, but that he had "acted in conformity with his character as a child predator."
Appellant never objected at trial that the admission of the videotape violated rule 404(b) and has therefore waived his complaint. We overrule appellant's third issue.
Conclusion
We affirm the judgment of the trial court.
Sherry Radack
Chief Justice
Panel consists of Chief Justice Radack and Justices Keyes and Higley
Do not publish. See Tex. R. App. P. 47.2(b)
1. Testimony at trial showed that these symptoms are common in children who have been sexually abused.
2. Mullin explained that spontaneous detail occurs when a person provides details that the interviewer did not request and other than in a rote manner.
3. Mullin explained that sensory detail is very important because "memory is stimulated by sensory detail and stored sensory."
4. Sullivan has a Bachelor's in Psychology and a Master's in Social Work and is licensed in the state of Texas as a social worker. Esquivel has a Bachelor's and a Master's in Psychology and a temporary license in general counseling.