NO. 12-01-00178-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
MARIN GONZALEZ,§ APPEAL FROM THE 114TH
APPELLANT
V.§ JUDICIAL DISTRICT COURT OF
THE STATE OF TEXAS,
APPELLEE§ SMITH COUNTY, TEXAS
Marin Gonzalez appeals his conviction for aggravated sexual assault of a child. The jury sentenced Appellant to life in prison and assessed a $10,000.00 fine. In two issues, Appellant asserts the conviction cannot stand because venue was not established and because the evidence is factually insufficient to support the conviction. We affirm.
Rosa Gonzalez, Appellant's wife, explained that she was babysitting her sister's four-year -old daughter, A.T., on the afternoon of November 15, 2000. Appellant came home from work at 4:30 p.m., ate dinner, and went into the bedroom to change clothes so he could return to work. A.T. wanted to show Appellant that she had learned to hopscotch that day so she went into the bedroom. After five or ten minutes, Mrs. Gonzalez went into the bedroom. She saw A.T. lying on the bed face down, with her pants and underwear around her knees. Appellant was standing behind her, closing the zipper on his pants. He did not respond when she asked what he was doing. He left the house quickly. A.T. started crying and saying that her uncle wanted to do something and that she did not want to. A.T. told her Appellant touched her in her coleta, meaning vagina, with his fingers. She said he put lotion inside her with his fingers. When Mrs. Gonzalez's sister arrived to pick up A.T., they called the police. Mrs. Gonzalez testified that her marriage had not been good. She and Appellant fought a lot and he has been verbally, physically, and sexually abusive. She planned to divorce him even before this offense occurred. She denied making up the allegations against Appellant because of difficulties in her marriage.
A.T., five years old at the time of the trial, testified as to the events of November 15, 2000. She had been excited about learning to hopscotch and told her aunt and then went to tell her uncle. She explained that he touched her in the front and she indicated on a diagram where he touched her. She said he touched her with his "tail" that is in front. He put lotion inside her, it hurt, and she cried. She also said he had touched her like this five other times.
Officer Bart Lemons of the Tyler Police Department was the first officer on the scene. He arrived just one-and-a-half hours after the incident. A.T. told him Appellant pulled her pants down, rubbed lotion on her buttocks with his penis, and she thought he put his fingers inside of her. She pointed to her vagina as she explained. He asked her if this had happened before and she said that it had.
Officer Jeffrey Rackliff, a crime scene investigator, took pictures of the bedroom but stated that no body fluids were found. He collected a maroon blanket and a maroon and white blanket for testing.
Officer Craig Shine was the only officer at the scene when Appellant returned later that evening. After other officers arrived, Officer Shine told Appellant of the allegations made against him. Appellant denied any wrongdoing. Appellant told Officer Shine he had been playing with A.T. and his son by throwing them up in the air and letting them land on the bed. However, Officer Shine testified that the bed was tightly made, with no wrinkles except for the area identified as the area where the offense occurred. Officer Shine obtained an arrest warrant and a search warrant and collected hair, saliva, and blood samples from Appellant.
David Davenport, a criminalist with the Department of Public Safety Crime Lab, testified as to the results of testing he did on items sent to him. He stated that the tests for blood on vaginal swabs of the victim were weakly positive, but no semen was found on anything he tested. He found red fibers on the victim's debris collection swab which came from her pubic region and a red fiber cluster on Appellant's boxer shorts.
John Donahue, also a criminalist with the Department of Public Safety Crime Lab, explained that the DNA found on the victim's panties and debris collection swab matched the victim's DNA. He detected no DNA from Appellant on any items he tested.
The State's final witness was Donna Friederich, a sexual assault nurse examiner at Mother Frances Hospital. She saw A.T. the evening of the offense. A.T. told her she went into Appellant's room to show him she learned to hopscotch in school that day. When she walked into the room he said, "Your butt looks delicious." A.T. told him to "shut up." He then took his pants off and took her clothes off. He sucked with his mouth in her "that," held her tight, and hurt her. He put Mrs. Gonzalez's lotion on his hands and fingers and put them "in there." A.T. pointed to her vaginal area as she explained. A.T. said Appellant, who did not have his underwear on, pushed her on the bed and put something round and hard like a big finger in her mouth.
Ms. Friederich explained in great detail the thorough examination she performed on A.T. She found a red rash on A.T.'s chin and a reddened area underneath her left arm. A vaginal exam revealed scratches on the right side of the labia majora, with swelling and redness. There was a three-centimeter scratch on the lower right side of the labia minora. She also found two blisters on the hymen which had to have been caused by a rubbing action, or friction. She characterized what she found as minor trauma, rare in children because they are resilient and their skin is elastic. She noted that, in a child this age, it takes quite a lot of trauma to make markings of this sort. She also stated that the trauma she found is consistent with the history she had been given. She testified that there was penetration of A.T.'s female sexual organ.
Appellant presented two witnesses. Theresa Lilly, office manager of Lilly Machinery, testified that Appellant had been an employee of Lilly Machinery. According to her records, he worked on November 15, 2000. He clocked in just before 6:00 a.m. and clocked out at 1:30 p.m. that day.
Ray Bradshaw testified that he helps supervise needed work at the Woodridge subdivision where he lives. He explained that he had known Appellant for eight or nine years and Appellant had done some work for Woodridge, as well as for Mr. Bradshaw personally at his home. He produced a handwritten note to himself indicating that Appellant worked three hours for Woodridge on November 15, 2000. The note did not indicate the time of day or specific hours worked. Mr. Bradshaw testified that Appellant began working about 2:00 or 2:30 that day and spent three hours working on outside lights in the subdivision. Then, after he finished the three hours for Woodridge, Appellant worked an estimated one-and-a-half to two hours for Mr. Bradshaw. He stated that he was not positive of the time Appellant began working that day because he did not write it down. Mr. Bradshaw also testified that Appellant worked until 6:30, 7:00, or 7:30 that evening. He later admitted that all times he testified to are "approximations." He explained that while working for him, Appellant parked his truck in front of Mr. Bradshaw's house. The truck was there off and on all afternoon. Appellant could have driven down the street to the light poles he worked on. However, he was certain the truck was never gone for as long as an hour at a time.
In his first issue, Appellant asserts the State failed to prove that the offense, if any, was committed in Smith County, Texas. He argues that venue is an essential element of the offense and the State offered no evidence to prove that element. Therefore, his argument continues, the evidence is legally insufficient to support the jury's verdict.
A plea of not guilty puts in issue the allegations of venue, and the State must prove such allegations by a preponderance of the evidence or the conviction will not be warranted. Tex. Code Crim. Proc. Ann. art. 13.17 (Vernon 1977); Black v. State, 645 S.W.2d 789, 790 (Tex. Crim. App. 1983). Proof of venue can be demonstrated by either direct or circumstantial evidence. Black, 645 S.W.2d at 790. However, venue is not a "criminative fact" and thus, not a constituent element of the offense. Fairfield v. State, 610 S.W.2d 771, 779 (Tex. Crim. App. 1981).
Officer Bart Lemons, the first officer on the scene the evening of November 15, 2000, gave the address of the location where the alleged aggravated sexual assault occurred and stated that it is located in Smith County, Texas. Officer Jeffery Rackliff, a crime scene investigator, was responsible for taking pictures. One picture he identified in court was a view of the front of the house where the offense occurred. He stated the street address and that it was located in Smith County, Texas. Further, Officer Craig Shine, a Crimes Against Children investigator with the Tyler Police Department, asserted in his affidavit submitted in support of the arrest warrant that the alleged offense occurred in Smith County, Texas. Accordingly, venue was proven by at least a preponderance of the evidence. See Black, 645 S.W.2d at 790. We overrule Appellant's issue one.
In his second issue, Appellant asserts the evidence is factually insufficient to support the conviction. He points out that even though the victim was taken to the hospital and examined shortly after the alleged offense, there is an absence of scientific or physical evidence, such as saliva, blood, or semen, linking him to the offense. Further, there is no evidence of lotion on or in the victim. He argues that the testimony of his disgruntled wife, which corroborates the victim's identification testimony, should be disregarded. Appellant contends he could not have committed the offense because, as the record shows, he was at work at the time. Further, a number of other persons lived in his home at the time of the alleged offense and all of them had access to the victim.
When reviewing the factual sufficiency of the evidence, we consider whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). We set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). In conducting this analysis, our duty is to examine the trier of fact's weighing of the evidence. Johnson, 23 S.W.3d at 7. We consider all of the evidence in the record related to an appellant's sufficiency challenge, comparing the weight of the evidence that tends to prove guilt with the evidence that tends to disprove it. See id. However, because the jury is the sole judge of the facts, we must give deference to jury findings. Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). What weight to give contradictory testimonial evidence is within the sole province of the jury because it turns on an evaluation of credibility and demeanor. Id. at 408-09. The indictment alleged, and thus the State was required to prove beyond a reasonable doubt, that Appellant intentionally or knowingly caused the penetration of the female sexual organ of A.T., a child younger than fourteen years of age, by his sexual organ or by his finger, or that Appellant intentionally or knowingly caused the female sexual organ of A.T. to contact Appellant's male sexual organ. See Tex. Pen. Code Ann. § 22.021(a)(1)(B) (Vernon Supp. 2000).
Rosa Gonzalez testified that she saw Appellant standing over A.T., zipping up his pants, while A.T. was face down on the bed, partially unclothed. A.T. told Mrs. Gonzalez, Officer Lemons, Ms. Friederich, and the jury that Appellant put his fingers inside her vagina. A.T. also told Ms. Friederich that he put something round and hard like a big finger in her mouth. Ms. Friederich, a nurse specially trained to examine sexual assault victims, who had thoroughly examined A.T. within hours of the assault, testified that she found evidence of trauma indicating that A.T.'s female sexual organ had been penetrated.
The jury could find Appellant guilty based on the testimony of an eyewitness, the victim, and a medical expert who collectively presented evidence that Appellant sexually assaulted four-year-old A.T. In light of such strong evidence of guilt, scientific or physical evidence, such as saliva, blood, or semen, is not necessary in order for the jury to find Appellant guilty of the aggravated sexual assault of A.T. Although A.T. testified that Appellant put lotion inside her, the fact that there is no scientific evidence of lotion on or in the victim is insufficient to overcome the evidence of guilt. Appellant's assertion that we should disregard Mrs. Gonzalez's testimony because she is "disgruntled" was appropriately considered by the fact finder. The jury, as fact finder, was entitled to consider that her husband was abusive and she planned to divorce him and give those facts the weight it felt appropriate. See Cain, 958 S.W.2d at 407. The jury could have determined that, even if she was "disgruntled," she told the truth about the offense against A.T. Further, even if Mrs. Gonzalez's testimony is disregarded, the remainder of the evidence is sufficient to support the conviction.
Additionally, Appellant's evidence of alibi is insufficient to overcome the proof of guilt. Mr. Bradshaw was not able to say for certain the exact time period Appellant worked on November 15, 2000. His written documentation merely stated that Appellant worked for a total of three hours for Woodridge on November 15, 2000. He had no written documentation that Appellant worked for him personally on that day. Further, he could not remember the exact amount of time Appellant worked for him, the exact hours he worked, or even Appellant's last name. Mr. Bradshaw's testimony was indefinite and he admitted all times were "approximations." We note also that Appellant's alibi evidence, that he was working at the time of the offense, is at odds with the explanation he gave to Officer Shine on the evening of the offense, that he had been innocently playing with A.T. and his son at the time of the alleged offense. Again the jury was entitled to resolve this conflict. See id.
Finally, although Mrs. Gonzalez testified that at times other male family members lived in their house or stayed at their house, there was no testimony that any adult male other than Appellant was present on November 15, 2000. This allusion to the possibility that others might have access to A.T. does not in any way diminish the strong evidence against Appellant.
After examining all the evidence in a neutral review and giving deference to the jury's verdict, we conclude that the jury's verdict is not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Clewis, 922 S.W.2d at 129. Moreover, from our neutral review of all the evidence, we find it fails to show that the proof of Appellant's guilt is so obviously weak as to undermine confidence in the jury's determination, or that the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Johnson, 23 S.W.3d at 11. The evidence is factually sufficient to support the jury's verdict. We overrule Appellant's second issue.
We affirm the trial court's judgment.
SAM GRIFFITH
Justice
Opinion delivered July 10, 2002.
Panel consisted of Gohmert, C.J., Worthen, J., and Griffith, J.
(DO NOT PUBLISH)