IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
JANUARY 17, 2007
______________________________
TOMAS RAMIREZ,
Appellant
v.
THE STATE OF TEXAS,
Appellee
_________________________________
FROM THE 181ST DISTRICT COURT OF POTTER COUNTY;
NO. 49,565-B; HON. JOHN BOARD, PRESIDING _______________________________ Memorandum Opinion _______________________________
Before QUINN, C.J. and CAMPBELL and PIRTLE, JJ.
Tomas Ramirez was convicted of the sexual assault of his adult daughter. In challenging that conviction, he contends the evidence is legally and factually insufficient to sustain the conviction due to his suffering from dementia which caused him to believe he was having sex with his deceased wife. We overrule the issue and affirm the judgment.
The standards by which we review the legal and factual sufficiency of the evidence are set forth in Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979) and Watson v. State, 204 S.W.3d 404 (Tex. Crim. App. 2006). We refer the parties to those cases.
To convict appellant of sexual assault, the State was required to prove appellant intentionally or knowingly caused the penetration of the sexual organ of his daughter without her consent. Tex. Pen. Code Ann. §22.011(a)(1)(A) (Vernon Supp. 2006). The evidence shows that prior to the alleged assault, appellant and his adult daughter began drinking beer around 8:00 p.m. the previous evening and continued drinking until sometime around 4:00 a.m. the next day. The victim was put to bed by her husband but she awoke later to find her father attempting to penetrate her with his penis. Appellant does not contend on appeal that he did not penetrate his daughter but rather he contends that he suffered from dementia which caused him to believe that his daughter was his wife (who had been deceased for a number of years) and thereby the required mens rea was absent.
After reading the record, we find no evidence either medical or otherwise that appellant had ever suffered from or was suffering from dementia at the time of the alleged assault. Furthermore, the victim's husband testified that when he put the victim to bed, appellant kept asking for her. The complainant also testified that when she awoke and realized that appellant was atop her, she asked him if he knew who she was and he said "yes." When she asked him to identify her, he replied with the victim's name. Further, 1) the complainant attempted to push her father off of her and suffered abrasions in the process, 2) appellant did not cease his efforts to penetrate her until she told him her husband had arrived home, 3) after the incident, appellant came to the door of the bedroom in which the complainant had locked herself, and spoke to her as "mija," (or daughter), and apologized, and 4) appellant told a police officer that nothing had happened and he was just playing around.
This evidence, if believed by the jury, was sufficient to allow a rational trier of fact to find appellant guilty beyond a reasonable doubt. Although there was evidence that during the assault appellant said the words, "mommy, mommy," that evidence is not so overwhelmingly unfavorable to the verdict as to render it invalid. Indeed we were cited to no evidence revealing that appellant called his deceased wife "mommy." The verdict is supported by both legally and factually sufficient evidence.
Accordingly, the judgment is affirmed.
Brian Quinn
Chief Justice
Do not publish.
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NO. 07-11-00074-CR; 07-11-0075-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL C
MARCH 10, 2011
JOSE ANGEL MARTINEZ, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE
FROM THE CRIMINAL DISTRICT COURT NO. 5 OF DALLAS COUNTY;
NO. F98-29599-L, F01-32449-K; HONORABLE CARTER THOMPSON, JUDGE
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
ORDER ON ABATEMENT AND REMAND
Appellant, Jose Angel Martinez, appeals from the trial courts determination to proceed to adjudications of guilt for the offenses of aggravated assault with a deadly weapon and sexual assault on a child.[1] Appellant filed notice of appeal on November 22, 2010. Thus, the appellate record was due to be filed by December 27, 2010. Neither the clerks or reporters record was filed by this deadline nor did the clerk or reporter request an extension of time to file the records.
On February 17, 2011, by order of the Texas Supreme Court, this appeal was transferred from the Fifth District Court of Appeals to this Court. See Tex. Govt Code Ann. § 73.001 (West 2005). By separate letters, both dated February 23, 2011, this Court notified the district clerk and official court reporter that the appellate record in this case had been due to be filed no later than December 27, 2010, and directed the clerk and reporter to advise this Court of the status of the records on or before March 7, 2011. We received the reporters record on March 7, 2011. However, to date, we have neither received the clerks record nor any response from the clerk to this Courts February 23, 2011 directive.
Accordingly, we now abate this appeal and remand the cause to the trial court for further proceedings. See Tex. R. App. P. 35.3(c). Upon remand, the trial court shall immediately cause notice of a hearing to be given and, thereafter, conduct a hearing to determine the status of the preparation of the clerks record, and to enter any order necessary under the present circumstances to ensure that the clerks record is filed as soon as practicable.
The trial court shall cause the hearing to be transcribed. In addition, the trial court shall (1) execute findings of fact and conclusions of law addressing the foregoing issues, (2) cause a supplemental clerk=s record to be developed containing its findings of fact and conclusions of law and any orders it may issue relating to this matter, and (3) cause a reporter=s record to be developed transcribing the evidence and arguments presented at the aforementioned hearing, if any. The trial court shall then file the supplemental clerk=s record and any reporter=s record transcribing the hearing with the clerk of this Court on or before April 7, 2011. Should further time be needed by the trial court to perform these tasks, same must be requested before April 7, 2011.
It is so ordered.
Per Curiam
Do not publish.
[1] Because no clerks record has been filed in this case, the identification of the offenses for which appellant was convicted are as reflected in appellants notice of appeal and docketing statement.