NUMBER 13-03-255-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
ROBERTO BUENTELLO, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 94th District Court
of Nueces County, Texas.
M E M O R A N D U M O P I N I O N
Before Chief Justice Valdez and Justices Hinojosa and Castillo
Opinion by Chief Justice Valdez
After a jury trial, appellant, Roberto Buentello, was convicted of three counts of aggravated sexual assault of a child and one count of indecency with a child. The trial court assessed punishment at twenty-five years confinement for each count of aggravated sexual assault and fifteen years confinement for the count of indecency with a child. Appellant raises the following two issues on appeal: (1) the evidence was insufficient to establish venue, and (2) the evidence was factually insufficient to support the verdict. We disagree and affirm the judgment of the trial court.
I. FACTUAL AND PROCEDURAL BACKGROUND
As this is a memorandum opinion and the parties are familiar with the facts, we will not recite them here except as necessary to advise the parties of the Court’s decision and basic reasons for it. See Tex. R. App. P. 47.4.
II. ANALYSIS
A. Venue
In his first issue, appellant contends that the State failed to carry its burden of establishing Nueces County as the proper county of venue, and the trial court erred by denying appellant’s motion for directed verdict on the issue. Specifically, appellant asserts that: (1) neither the victim nor the outcry witness testified to the location of the assault; (2) the medical records revealed no physical evidence of the assault, providing no evidence to support a reasonable conclusion that the assault occurred recently while the child resided in Nueces County; (3) no other evidence was produced in the State’s case-in-chief to show that the assault took place in Nueces County; and (4) the record contains conflicting evidence suggesting that the offense could have occurred in another county where the child resided just months before the outcry statement was made.
In sexual assault and indecency cases, venue is proper in the county in which the offenses were committed. See Tex. Code Crim. Proc. Ann. art. 13.15 (Vernon Supp. 2004) (sexual assault); Tex. Code Crim. Proc. Ann. art. 13.18 (Vernon 1977) (other offenses). For the State to establish venue, “it shall only be necessary to prove by the preponderance of the evidence that by reason of the facts in the case, the county where such prosecution is carried on has venue.” Tex. Code Crim Proc. Ann. art. 13.17 (Vernon 1977). In meeting this burden, the State may rely on direct or circumstantial evidence, and the jury may draw reasonable inferences from the evidence presented. Black v. State, 645 S.W.2d 789, 790 (Tex. Crim. App. 1983); Edwards v. State, 97 S.W.3d 279, 285 (Tex. App.–Houston [ 14th Dist.] 2003, pet. ref’d); Kopanski v. State, 713 S.W.2d 188, 190 (Tex. App.–Corpus Christi 1986, no pet.). The evidence presented at trial is sufficient to prove venue if the jury “may reasonably conclude [from the evidence] that the offense was committed in the county alleged.” Rippee v. State, 384 S.W.2d 717, 718 (Tex. Crim. App. 1964). Failure to establish necessary facts to prove venue in the county of prosecution constitutes reversible error on appeal. Black, 645 S.W.2d at 791.
The State presented the following evidence to prove venue: (1) in September 2001, the victim, who was four years old at the time, told her grandmother that her private parts hurt; (2) for at least two months prior to September 2001, the victim resided in Nueces County at her grandmother’s or aunt’s residence; (3) appellant had access to the child at both locations; and (4) Kenna Hamilton Busch, a counselor at the Child Advocacy Center and the outcry witness, testified that the victim told her on September 12, 2001, that the incident occurred “yesterday,” and, from Busch’s professional experience, such a statement would indicate the incident occurred within a short period of time. We conclude the State presented sufficient evidence from which a reasonable jury could conclude or infer that the offenses were committed in Nueces County. Accordingly, we overrule appellant’s first issue.
B. Factual Sufficiency
In his second issue, appellant contends that the evidence was factually insufficient to sustain his conviction, “asserting that the State failed to prove the elements of assault beyond a reasonable doubt.” When reviewing the factual sufficiency of the elements of the offense on which the State carries the burden of proof, we impartially examine all of the evidence and set aside the verdict only if “proof of guilt is so obviously weak as to undermine confidence in the [fact finder’s] determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by the contrary proof.” Swearingen v. State, 101 S.W.3d 89, 97 (Tex. Crim. App. 2003). We review the evidence weighed by the fact finder that tends to prove the existence of a disputed elemental fact and compare it to evidence that is contrary to the disputed fact. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). However, we do not intrude upon the jury’s role as the sole judge of the weight and credibility given to witness testimony. Id. Due deference must be accorded to the fact finder’s determinations on the weight and credibility of the evidence, and we may not merely substitute our own judgment. Swearingen, 101 S.W.3d at 97; Johnson, 23 S.W.3d at 7.
In analyzing issues of factual sufficiency, the evidence is measured against the elements of the offense as defined by a hypothetically correct jury charge. Wheaton v. State, 129 S.W.3d 267, 272 (Tex. App.–Corpus Christi 2004, no pet.); Adi v. State, 94 S.W.3d 124, 131 (Tex. App.–Corpus Christi 2002, pet. ref’d). “Such a charge would be one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s theories of liability, and adequately describes the particular offense for which the defendant was tried.” Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997).
Section 22.021 of the penal code, under which appellant was convicted, states in relevant part that a person commits the offense of aggravated sexual assault if the person intentionally or knowingly “(iii) causes the sexual organ of a child to contact or penetrate the mouth, anus, or sexual organ of another person, including the actor; [or] (iv) causes the anus of a child to contact the mouth, anus, or sexual organ of another person, including the actor; ...and (2) if: ... (B) the victim is younger than 14 years of age.” Tex Pen. Code. Ann. § 22.021(a)(1)(B)(iii), (iv), (2)(B) (Vernon Supp. 2004). Section 21.11 of the penal code, under which appellant was also convicted, states in relevant part that a person commits the offense of indecency with a child if, “with a child younger than 17 years and not the person’s spouse, ...the person: ...(2) with intent to arouse or gratify the sexual desire of any person: (A) exposes the person’s anus or any part of the person’s genitals, knowing the child is present.” Tex. Pen. Code Ann. § 21.11(a)(2)(A) (Vernon 2003).
Appellant asserts generally that the evidence is factually insufficient to support the verdict. Specifically, appellant contends that “the verdict is against the great weight and preponderance of the available evidence, when taken into consideration with the victim’s inconclusive testimony at trial, the failure to prove venue in Nueces County, and the question of the content and veracity of the child’s testimony.”
With regard to venue, we have overruled appellant’s argument. With regard to the child’s testimony, the State’s case rested primarily on the testimony of the victim and her outcry statement. Nevertheless, the testimony of a child victim alone may be sufficient to support a conviction for both charged offenses. See Tex. Code Crim. Proc. Ann. art. 38.07 (Vernon Supp. 2004); Perez v. State, 113 S.W.3d 819, 838 (Tex. App.–Austin 2003, pet. ref’d). Moreover, the jury is the sole judge of the credibility of the witnesses and the weight to be given the evidence and may choose to believe all, some, or none of it. Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim. App. 2000); Perez, 113 S.W.3d at 838.
At trial, the victim testified, through the use of demonstrative evidence, that she was touched on her sexual organ by appellant. Further, Busch, the outcry witness, testified that the victim, through questioning and use of anatomically correct dolls, was able to convey the followings facts: (1) appellant touched her on her sexual organ with his sexual organ and mouth; (2) appellant caused his sexual organ to come in contact with her anus; (3) appellant forced the victim to hold his sexual organ in her hands; and (4) appellant ejaculated.
To rebut the State’s case, appellant testified in his own defense and stated that the victim’s maternal grandmother was telling the victim to make the statements against him. He denied having any sexual contact with the victim. Appellant’s nephew testified that in June or July of 2001, he heard the victim say, “my daddy molested me.” When he questioned her about it, she told him that her grandmother had told her to say it.
The jury was able to hear and view the testimony of both the victim and the other witnesses for the State, as well as testimony supporting appellant. It is well within the province of the jury to judge the veracity and truthfulness of the witnesses before it and deduce the truth. We conclude that the evidence supporting the convictions for aggravated sexual assault of a child and indecency with a child is not so obviously weak as to be clearly wrong and manifestly unjust or greatly outweighed by the contrary proof. Accordingly, we overrule appellant’s second issue.
III. CONCLUSION
We affirm the judgment of the trial court.
Rogelio Valdez,
Chief Justice
Do not publish.
Tex. R. App. P. 47.2(b).
Memorandum Opinion delivered and filed
this 27th day of August, 2004.