In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-08-00389-CR
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DAVID KENT ORTIZ, Appellant
V.
THE STATE OF TEXAS, Appellee
Polk County, Texas
Trial Cause No. 19,855
A jury convicted appellant David Kent Ortiz of indecency with a child and assessed punishment at eighteen years of confinement and a $10,000 fine. In his sole appellate issue, Ortiz contends the evidence was legally insufficient to support his conviction. We affirm.
The Evidence
The eight-year-old victim, A.H., testified that her parents were separated. While A.H. was staying with her mother, A.H. met Ortiz, who sometimes stayed overnight at A.H.'s mother's home. A.H. testified that Ortiz sometimes brought his children with him. According to A.H., Ortiz slept in her mother's bedroom, Ortiz's children slept on the couch, and A.H. slept on a mattress on the living room floor. A.H. testified that on one occasion when she had spent the night at her mother's house, Ortiz entered the living room the next morning and sat down on the floor beside the mattress. A.H. testified that Ortiz then touched her "[p]rivate" underneath her panties and moved his hand around, and she identified the vaginal area on a diagram. According to A.H., the other three children were still asleep when Ortiz touched her. After Ortiz left the room, A.H. went to find her mother. Although A.H.'s mother asked A.H. if something was wrong, she did not tell her what had happened at that time. A.H. told her father what had happened later that day when she went home. A.H. also testified that on a prior occasion in a hotel swimming pool, Ortiz tried to touch her private, but she moved and prevented him from doing so.
A.H.'s father, C.H., testified that when A.H. came home from her mother's residence on the day in question, A.H. was quiet, and A.H. eventually "came out and told me she needed to talk to me about something." A.H. told C.H. that Ortiz had touched her vaginal area. C.H. contacted the sheriff's department and informed A.H.'s mother. C.H. testified that a Child Protective Services caseworker subsequently interviewed A.H. (1) A.H.'s mother, T.H., testified that A.H. stayed with her approximately three nights per week. T.H. testified that during a trip with Ortiz and the children, A.H. told her that Ortiz had tried to touch her inappropriately in the swimming pool. According to T.H., A.H. had always been nervous around Ortiz, and T.H. did not leave A.H. alone with Ortiz after the swimming pool incident. On the morning of the day in question, T.H. went outside to clean out her van. While she was outside, T.H. heard Ortiz walking around inside. A.H. came outside, and when T.H. asked A.H. if she was all right, A.H. said she was "okay." T.H. testified that she was concerned that something had happened to A.H. A.H. went home to her father's house later that day. T.H. testified that C.H. and A.H. later came back to T.H.'s house, and T.H. learned what had happened. T.H. testified that Ortiz called later that day, and when she asked him why he did what he did, he said "the devil made him do it." T.H. testified that Ortiz admitted that he touched A.H., but "[h]e said he didn't bring pain on her. It didn't hurt when he touched her."
Lieutenant Craig Finegan of the Polk County Sheriff's Office testified that he became involved in the investigation of Ortiz after the sheriff's office received a report regarding an allegation of indecency with a child. Lieutenant Finegan took a final statement from A.H. a few weeks after the incident. Lieutenant Finegan testified that the sheriff's department decided not to pursue a sexual assault examination because the case involved touching rather than penetration, and an examination would have been invasive and traumatic for a child. Lieutenant Finegan testified that he attempted to call Ortiz during the investigation, but Ortiz hung up on him, and Ortiz refused to answer the phone when Lieutenant Finegan attempted to call again. Lieutenant Finegan subsequently obtained a warrant to arrest Ortiz. The State rested after Lieutenant Finegan's testimony.
Ortiz's seventeen-year-old son, M.O., testified that he occasionally spent the night with his father at T.H.'s house. M.O. testified that on the date in question, he, his two sisters, three other children, and Ortiz spent the night at T.H.'s home. M.O. testified that he slept on the couch in the living room. According to M.O., nothing unusual happened that night or the following morning, and no one was acting unusual. M.O. admitted that he did not know what transpired while he was asleep. Ortiz's nine-year-old daughter, E.O., testified that she slept on the floor with A.H., and she did not recall her father entering the room that night or that morning. E.O. testified that she is a fairly sound sleeper. Ortiz's twelve-year-old daughter, S.O., likewise testified that she did not recall her father entering the living room, and she did not see anything unusual that night or that morning.
Ortiz testified that he had a romantic relationship with T.H., and he sometimes spent the night at her home. Ortiz denied admitting to T.H. that he had done anything improper to A.H. Ortiz testified that he and T.H. did not sleep on the night in question because they were doing drugs. Ortiz testified that when he went into the living room that morning, he did not notice anything unusual about the children or T.H. Ortiz denied touching A.H. inappropriately, and he testified that the allegations against him were untrue. Ortiz testified that A.H. and T.H. were lying. Ortiz also denied trying to touch A.H. inappropriately in the swimming pool. Ortiz testified that he "might have" hung up on Lieutenant Finegan because he "just didn't want to deal with it." Ortiz admitted that although he told Lieutenant Finegan that he would talk to him, he never did so.
Ortiz's Issue
In his sole issue on appeal, Ortiz argues the evidence was legally insufficient to support his conviction. When reviewing the legal sufficiency of the evidence, we must view the evidence in the light most favorable to the verdict and determine whether any rational factfinder could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); Ross v. State, 133 S.W.3d 618, 620 (Tex. Crim. App. 2004). The jury is the ultimate authority on the credibility of witnesses and the weight to be given their testimony. See Penagraph v. State, 623 S.W.2d 341, 343 (Tex. Crim. App. 1981). When the victim of a sexual offense is seventeen years old or younger, a conviction under chapter 21 of the Penal Code is supportable on the victim's uncorroborated testimony. Tex. Code Crim. Proc. Ann. art. 38.07(a), (b)(1) (Vernon 2005).
A.H. testified that Ortiz touched her vaginal area underneath her panties. Viewing the record in the light most favorable to the verdict, a rational jury could have concluded beyond a reasonable doubt that Ortiz was guilty of indecency with a child. See Tex. Pen. Code Ann. § 21.11(a)(1) (Vernon 2003); Tex. Code Crim. Proc. Ann. art. 38.07(a), (b)(1). Accordingly, we overrule Ortiz's sole issue and affirm the trial court's judgment.
AFFIRMED.
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CHARLES KREGER
Justice
Submitted on August 3, 2009
Opinion Delivered August 26, 2009
Do not publish
Before McKeithen, C.J., Gaultney and Kreger, JJ.
1. Shawna Farrar, an investigator with the Texas Department of Family and Protective
Services, testified that she interviewed A.H.