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Opinion filed August 3, 2006
In The
Eleventh Court of Appeals
__________
No. 11-04-00282-CR
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ROBERTO J. CASTILLO, Appellant
V.
STATE OF TEXAS, Appellee
On Appeal from the 161st District Court
Ector County, Texas
Trial Court Cause No. B-31,194
O P I N I O N
The jury convicted Roberto J. Castillo of two counts of aggravated sexual assault of a child and assessed punishment at 70 years confinement for each count. We affirm.
In his first issue on appeal, appellant argues that the indictment was fatally defective. The indictment alleged in Count One that appellant caused Athe penetration of the anus of >L.C.,= a child younger than 14 years of age who was not the spouse of said defendant, by inserting his, said defendant=s male sexual organ into the anus of >L.C.=@ Count Two alleged that appellant caused Athe penetration of the mouth of >L.C.,= a child younger than 14 years of age who was not the spouse of said defendant, by inserting his, said defendant=s male sexual organ into the mouth of >L.C.=@ Appellant specifically argues that the indictment was defective because Ait fail[ed] to allege that the conduct was without medical care@ as provided in Tex. Pen. Code Ann. ' 22.011(d) (Vernon Supp. 2005).
Section 22.011(d) states that it is a defense to prosecution if the conduct consisted of Amedical care for the child and did not include any contact between the anus or sexual organ of the child and the mouth, anus, or sexual organ of the actor.@ The defense set out Section 22.011(d) does not apply to Count One because it alleges contact between the anus of L.C. and the sexual organ of appellant.
Any defect in the form or substance of an indictment is waived if the defendant does not object before trial and may not be raised on appeal. Tex. Code Crim. Proc. Ann. art. 1.14 (Vernon 2005). Appellant did not object to the indictment prior to trial and has waived this argument on appeal. Article 1.14(b); see Studer v. State, 799 S.W.2d 263 (Tex. Crim. App. 1990). Appellant=s first issue on appeal is overruled.
In his second issue on appeal, appellant complains that L.C. was incompetent to testify. In his fourth issue on appeal, appellant argues that the evidence was legally and factually insufficient to support his conviction without the testimony of L.C.[1]
L.C. testified at trial that he began living with his uncle, appellant, when he was 4 years old. L.C. stated that he watched Anasty@ movies with appellant and that appellant put his penis in L.C.=s mouth and Abutt.@ L.C. testified that he currently resides with his father and stepmother. Elena Limon, L.C.=s stepmother, testified that she and L.C.=s father gained custody of L.C. in June 2001 when L.C. was eight years old. L.C. was very rebellious, and he did not know how to take care of himself. L.C. did not know how to eat with utensils or how to Aclean@ himself after using the bathroom, and L.C. was unable to control his bowel movements. Limon stated that L.C. acted out sexually.
Dr. Robert William Garcia testified that he examined L.C. at the request of Child Protective Services. Dr. Garcia stated that L.C. had Along standing problems@ with Afecal and urinary incontinence.@ Dr. Garcia testified that he conducted a rectal exam and found that L.C. had a Asignificant loss of sphincter tone.@ Dr. Garcia noted that, when the sphincter muscle becomes enlarged, it is difficult to retain stool. Dr. Garcia said that loss of sphincter tone can be caused by a traumatic event that stretches the sphincter beyond its normal limits and causes a tear. L.C. told Dr. Garcia that appellant Ahad been putting it in him for years.@ Dr. Garcia testified that L.C. displayed characteristics of a child who had been sexually abused.
Dr. Roddy Strobel, a child psychiatrist, testified that L.C. was referred to her because of problem behavior including sexually inappropriate behavior, fecal incontinence, and nightmares. L.C. told Dr. Strobel that he was sexually abused by appellant. Dr. Strobel stated that L.C. suffered from post-traumatic stress disorder and depression. Dr. Strobel further testified that the problems L.C. was experiencing were the result of sexual abuse.
L.C. was interviewed by Eve Flores at Harmony Home Children=s Advocacy Center on January 23, 2002. L.C. did not disclose to Flores that he had been sexually abused by appellant, but L.C. stated that he watched Anasty movies@ with appellant. L.C. also told Flores that he was afraid of appellant. L.C. later began counseling with Anna Carrillo at Harmony Home. L.C. disclosed to Carrillo that he had been sexually abused by appellant. L.C. also told Carrillo that appellant sexually abused his cousin, Lisa. Carrillo testified that L.C.=s problems with lying, acting out sexually, and fecal incontinence were all characteristics of someone who has been sexually abused. After he received therapy with Carrillo, L.C. was interviewed by JoAnne Serrabia with the Children=s Advocacy Center. L.C. disclosed to Serrabia in a videotaped interview that he had been sexually abused by appellant. That videotape was played before the jury.
L.C.=s cousin, Lisa Castillo, testified that appellant never sexually abused her and that she never saw appellant sexually abuse L.C. Appellant=s wife Elouisa Castillo also testified that she never saw any evidence to indicate appellant was sexually abusing L.C. L.C. never told Elouisa that appellant mistreated him. Elouisa said that L.C. was rarely alone with appellant and that appellant did not watch Anasty movies.@
A child is competent to testify unless, after being examined by the court, he does not appear to possess sufficient intellect to relate transactions with respect to which he is interrogated. Tex. R. Evid. 601(a)(2). Inconsistencies and conflicts in the child=s testimony do not automatically rule him incompetent; rather, they are simply factors affecting the weight of the child=s credibility. Woods v. State, 14 S.W.3d 445, 451 (Tex. App.CFort Worth 2000, no pet.). Whether a child witness is competent to testify is reviewed under an abuse of discretion standard. Woods, 14 S.W.3d at 450. An abuse of discretion occurs when a trial court acts arbitrarily and unreasonably without reference to guiding rules or principles of law. Woods, 14 S.W.3d at 451; Breeding v. State, 809 S.W.2d 661, 663 (Tex. App.CAmarillo 1991, pet. ref=d). To determine whether the trial court abused its discretion, we must review the entire testimony of the child. Woods, 14 S.W.3d at 451.
The trial court asked L.C. several questions to determine if L.C. knew the difference between the truth and a lie. L.C. was able to articulate events in his life and his age at the time those events occurred. L.C. was able to perceive the events of the alleged crime and relate that evidence to the jury. After viewing L.C.=s entire testimony, we do not find that the trial court abused its discretion in allowing L.C. to testify.
Appellant further contends that the trial court was Aobligated under the facts of this case to make a finding to the elements identified in the Hollinger case as to the competency of L.C.@ The court stated in Hollinger that the three elements to be considered by the court in making a determination of competency to testify are:
(1) the competence of the witness to observe intelligently the events in question at the time of the occurrence;
(2) the capacity of the witness to recollect the events, and;
(3) the capacity of the witness to narrate the facts.
Hollinger v. State, 911 S.W.2d 35, 38-39 (Tex. App.CTyler 1995, pet. ref=d).
Hollinger identifies factors for the court to consider in determining a witness=s competency. The trial court is not required to make a finding on the record concerning these factors. Appellant=s second issue on appeal is overruled.
In order to determine if the evidence is legally sufficient, we must review all of 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 crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979); Jackson v. State, 17 S.W.3d 664 (Tex. Crim. App. 2000). In order to determine if the evidence is factually sufficient, we must review all of the evidence in a neutral light and determine whether the evidence supporting guilt is so weak that the verdict is clearly wrong and manifestly unjust or whether the evidence contrary to the verdict is so strong that the beyond-a-reasonable-doubt burden of proof could not have been met. Zuniga v. State, 144 S.W.3d 477 (Tex. Crim. App. 2004); Ross v. State, 133 S.W.3d 618 (Tex. Crim. App. 2004); Vasquez v. State, 67 S.W.3d 229, 236 (Tex. Crim. App. 2002); Cain v. State, 958 S.W.2d 404 (Tex. Crim. App. 1997); Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996). We review the fact-finder=s weighing of the evidence and cannot substitute our judgment for that of the fact-finder. Cain, 958 S.W.2d at 407; Clewis, 922 S.W.2d at 135. Due deference must be given to the jury=s determination, particularly concerning the weight and credibility of the evidence. Johnson v. State, 23 S.W.3d 1 (Tex. Crim. App. 2000); Jones v. State, 944 S.W.2d 642 (Tex. Crim. App. 1996). This court has the authority to disagree with the fact-finder=s determination Aonly when the record clearly indicates such a step is necessary to arrest the occurrence of a manifest injustice.@ Johnson, 23 S.W.3d at 9.
The record shows that L.C. reported being sexually abused by appellant to a doctor, a child psychiatrist, and two counselors. Dr. Garcia testified that L.C. exhibited characteristics of sexual abuse including an enlarged sphincter muscle. L.C.=s testimony, which we determined to be properly admitted, showed that appellant committed the offense of aggravated sexual assault. We find the evidence to be both legally and factually sufficient to support appellant=s conviction. Appellant=s fourth issue on appeal is overruled.
In his third issue on appeal, appellant contends that the trial court erred in not requiring the State to make an election as to which allegation of sexual assault it intended to rely upon for conviction. When multiple offenses are properly joined in a single indictment, each offense should normally be alleged in a separate count. Tex. Code Crim. Proc. Ann. art. 21.24(a) (Vernon 1989). In such cases, the State is not required to elect between counts, and each count may be submitted to the jury. Owens v. State, 96 S.W.3d 668, 672 (Tex. AppCAustin 2003, no pet.). Appellant argues that the evidence showed more than the two acts of sexual assault alleged in the indictment.
When the evidence shows two or more acts of sexual assault, each of which is an offense for which the defendant may be convicted, the State is required to elect which act it will rely upon to secure a conviction if the defendant makes a motion for election. Crawford v. State, 696 S.W.2d 903, 906 (Tex. Crim. App. 1985); Hendrix v. State, 150 S.W.3d 839, 852 (Tex. App.CHouston [14th Dist.] 2004, pet. ref=d). The record reflects no request by appellant in the trial court that the State elect the separate acts upon which it was relying for a conviction. Therefore, appellant has waived this argument on appeal. Tex. R. App. P. 33.1; Hendrix, 150 S.W.3d at 852. Appellant=s fourth issue on appeal is overruled.
The judgment of the trial court is affirmed.
JIM R. WRIGHT
CHIEF JUSTICE
August 3, 2006
Do not publish. See Tex. R. App. P. 47.2(b).
Panel consists of: Wright, C.J., and
McCall, J., and Strange, J.
[1]At oral argument, appellant argued that there was no proof of venue. Appellant did not raise that issue in the trial court, nor did he brief it on appea; therefore, he waived the complaint. Tex. R. App. P. 33.1(a); see also Tex. R. App. P. 44.2(c)(1); Fairfield v. State, 610 S.W.2d 771, 779 (Tex. Crim. App. 1981).