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NUMBER 13-02-348-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
LUIS JAVIER LOYOLA, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 138th District Court of Cameron County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Hinojosa and Yañez
Memorandum Opinion by Justice Yañez
A jury convicted appellant, Luis Javier Loyola, of aggravated sexual assault of a child[1] and assessed his punishment at seven years= imprisonment. In three issues, appellant challenges the legal and factual sufficiency of the evidence supporting his conviction and the trial court=s denial of his motion to suppress his two written statements. We affirm.
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 the basic reasons for it.[2] The record contains the trial court=s certification that this Ais not a plea-bargain case, and the defendant has the right of appeal.@[3]
Background
Appellant was convicted of aggravated sexual assault of his eight-year-old step-daughter, G.G. The victim, nine years old by the time of trial, testified at trial.
Standards of Review and Applicable Law
In a legal sufficiency review, we view all of the evidence in the light most favorable to the verdict and then determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.[4] This standard gives Afull play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.@[5]
We measure the legal sufficiency of the evidence against the elements of the offense as defined by a hypothetically correct jury charge for the case.[6] ASuch 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.@[7]
The jury, as the trier of fact, may use common sense and apply common knowledge, observation, and experience gained in ordinary affairs when giving effect to the inferences that may be reasonably drawn from the evidence.[8] As fact finder, the jury is the exclusive judge of the credibility of witnesses and the weight to be afforded their testimony.[9] The jury is free to accept one version of the facts, reject another, or reject all or any of a witness's testimony.[10]
In a factual sufficiency review, we view all of the evidence in a neutral light, and we will set the verdict aside only if the evidence is so weak that the verdict is clearly wrong and manifestly unjust, or the contrary evidence is so strong that the standard of proof beyond a reasonable doubt could not have been met.[11] We are not bound to view the evidence in the light most favorable to the prosecution, and may consider the testimony of all the witnesses.[12] Disagreeing with the fact finder's determination is appropriate only when the record clearly indicates that such a step is necessary to arrest the occurrence of a manifest injustice; otherwise, due deference must be accorded the fact finder's determinations, particularly those concerning the weight and credibility of the evidence.[13]
A hypothetically correct jury charge would ask the jury if appellant (1) on or about the alleged date (2) intentionally or knowingly (3) caused his sexual organ to contact the sexual organ of (4) a child younger than fourteen years of age and not married to appellant.[14]
The testimony of a child victim alone is sufficient to support a conviction for aggravated sexual assault.[15] A conviction of aggravated sexual assault Ais supportable on the uncorroborated testimony of the victim of the sexual offense if the victim informed any person, other than the defendant, of the alleged offense.@[16]
The unsophisticated language of a child is sufficient to support a conviction as long as the child victim has sufficiently communicated to the trier of fact that the offensive sexual touching occurred to a part of the body within the definition of section 21.01 of the penal code.[17] The testimony of a child victim of sexual abuse is given wide latitude by the courts and the description of the sexual abuse need not be precise.[18] Given this latitude, no requirement exists that physical, medical, or other evidence be proffered to corroborate the victim's testimony.[19]
Legal Sufficiency Analysis
In his first issue, appellant complains that the evidence is legally insufficient to support his conviction. Specifically, appellant contends the evidence is insufficient to prove that he caused the victim=s sexual organ to contact his sexual organ.
As noted above, the testimony of a child victim alone is sufficient to support a conviction for aggravated sexual assault.[20] Here, the victim testified that appellant=s Amiddle part@[21] touched her Amiddle part@ and that appellant tried to put his Amiddle part@ into her Amiddle part.@ Appellant notes that on cross-examination, the victim testified that she told her mother the incident had not happened. The victim also testified, however, that the morning after the incident, she told her mother that her step-father had chased after her and put his hand over her mouth. She told her mother that nothing else had happened because she was scared of appellant. The Aoutcry@ witness, a next-door neighbor who regularly babysat the victim and her siblings, testified that the victim told her about the incident approximately two weeks after it occurred.
Viewing the evidence in the light most favorable to the verdict, we conclude that any rational trier of fact could have found beyond a reasonable doubt all of the essential elements of the offense of aggravated sexual assault of a child. Accordingly, we hold the evidence is legally sufficient to support the jury=s finding that appellant committed aggravated sexual assault of a child as charged in Count II of the indictment. We overrule appellant=s first issue.
Factual Sufficiency Analysis
By his second issue, appellant contends the evidence is factually insufficient to support his conviction. Specifically, appellant emphasizes that (1) the victim felt no pain after the alleged assault and (2) did not complain of the alleged assault for approximately fifteen days; (3) there were no witnesses; (4) the victim=s mother awoke about the same time the assault allegedly occurred and did not see appellant in the victim=s room; (5) upon being questioned by her mother, appellant denied that any touching or contact occurred; (6) the medical records do not support evidence of penetration; and (7) appellant denied that his sexual organ contacted the victim=s sexual organ.
We again note that the testimony of a child victim alone is sufficient to support a conviction for aggravated sexual assault.[22] Viewing all the evidence in a neutral light, we conclude the evidence is not so weak as to be clearly wrong and manifestly unjust and the verdict is not against the great weight of the evidence. Accordingly, we hold the evidence is factually sufficient to support the jury=s finding that appellant committed aggravated sexual assault of a child, as charged in Count II of the indictment.
Motion to Suppress
A trial court's ruling on a motion to suppress is generally reviewed for abuse of discretion.[23] In a suppression hearing, the trial judge is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given to their testimony.[24] In reviewing a trial court's ruling on a motion to suppress, we afford almost total deference to the trial court's determination of the historical facts that the record supports, especially when the trial court's findings turn on evaluating a witness's credibility and demeanor.[25] We afford the same amount of deference to the trial court's ruling on Aapplication of law to fact questions,@ also known as Amixed questions of law and fact,@ if resolving those ultimate questions turns on evaluating credibility and demeanor.[26] However, we review de novo questions of law and Amixed questions of law and fact@ that do not turn on an evaluation of credibility and demeanor.[27]
Because the determination of whether a statement is voluntary is a mixed question of law and fact which turns on the credibility of the witnesses, the trial court's determination should be granted almost total deference on appeal.[28] We uphold a trial court=s ruling on a suppression motion if it is reasonably supported by the record and is correct on any theory of law applicable to the case.[29]
Analysis of Motion to Suppress
By his third issue, appellant contends the trial court erred in denying his motion to suppress his written statements.[30] Specifically, appellant contends his statements were not made knowingly and voluntarily and that he was not advised of the right to consult with an attorney. Appellant testified at the suppression hearing that he requested an attorney but was told he did not need one, and that he was not advised of his Constitutional rights. He further testified that the police officers led him through the questioning and told him that it would be to his benefit to give a statement. Similarly, during the guilt/innocence phase of trial, appellant testified that he requested an attorney but was told he did not need one, and that he signed the statements because he Atrusted@ the police and was told it would benefit him. Appellant testified that when he initialed the statements, he A[didn=t] understand any of that.@ He testified that he did not commit the alleged acts, but he signed the statements based on representations that it would help him in court.
The record shows that at the suppression hearing, Alfredo Alvear, a Harlingen police officer, testified that shortly after appellant turned himself in on January 3, 2002, appellant was read his rights in Spanish and after affirming that he understood his rights, signed a written waiver of his rights. Detective Miriam Anderson, a Harlingen police officer, also testified that she met with appellant the following day, January 4, 2002, and appellant again waived his rights after they were read to him in Spanish. After appellant waived his rights, Detective Anderson took appellant=s voluntary statement.[31] Anderson testified that she never told appellant it would be to his benefit to make a statement. She also testified that later in the day, after executing a second waiver of his rights, appellant provided a second voluntary statement.
After hearing argument, the trial court denied appellant=s motion to suppress and admitted both of appellant=s statements (State=s Exhibits 4 and 6) into evidence.[32] However, the trial court failed to make written findings of fact and conclusions of law as to whether appellant=s statements were made voluntarily as required by section six of article 38.22 of the code of criminal procedure.[33] On August 31, 2005, this Court abated the appeal and remanded for the trial court to enter such findings of fact and conclusions of law. On September 26, 2005, the trial court filed its written findings and conclusions regarding the voluntariness of appellant=s written statements. The trial court found that appellant voluntarily and knowingly waived his Miranda rights,[34] that there was no duress, coercion, or promises to elicit appellant=s statements, and that both of appellant=s written statements were freely and voluntarily made.
As noted, the trial court is the sole judge of the weight and credibility of the witnesses and may believe or disbelieve all or any part of any witness=s testimony.[35] Appellant=s contention regarding the voluntariness of his statements depends upon facts that were resolved by the trial court against appellant=s position.[36] Although appellant testified that his statements were not voluntary, the trial court could have determined that his testimony was not credible.[37] Giving almost total deference to the trial court=s resolution of historical facts, we conclude the trial court reasonably determined that appellant=s statements were made voluntarily. Accordingly, we hold that the statements were properly admitted into evidence.[38] We overrule appellant=s third issue.
We AFFIRM the judgment of the trial court.
_______________________
LINDA REYNA YAÑEZ,
Justice
Do not publish.
Tex. R. App. P. 47.2(b)
Memorandum Opinion delivered and
filed this the 3rd day of November, 2005.
[1] See Tex. Pen. Code Ann. ' 22.021 (a)(1)(B)(iii), (a)(2)(B) (Vernon Supp. 2004-05). Count II of the indictment alleged that on or about November 20, 2001, appellant Aintentionally or knowingly cause[d] the sexual organ of G.G., a child who was then and there younger than 14 years of age and not the spouse of the defendant, to contact the sexual organ of the defendant.@ The jury found appellant guilty of Count II as charged in the indictment. The jury found appellant not guilty of Count I, which alleged digital penetration of the victim=s sexual organ.
[2] Tex. R. App. P. 47.4.
[3] See Tex. R. App. P. 25.2(a)(2).
[4] Escamilla v. State, 143 S.W.3d 814, 817 (Tex. Crim. App. 2004) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)).
[5] Jackson, 443 U.S. at 319.
[6] See Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997); Adi v. State, 94 S.W.3d 124, 131 (Tex. App.BCorpus Christi 2002, pet. ref'd).
[7] Malik, 953 S.W.2d at 240.
[8] Booker v. State, 929 S.W.2d 57, 60 (Tex. App.BBeaumont 1996, pet. ref'd).
[9] Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1981); Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991).
[10] Penagraph v. State, 623 S.W.2d 341, 343 (Tex. Crim. App. 1981).
[11] Escamilla, 143 S.W.3d at 817 (citing Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex. Crim. App. 2004)).
[12] Johnson v. State, 23 S.W.3d 1, 10-12 (Tex. Crim. App. 2000).
[13] Id.
[14] See Tex. Pen. Code Ann. ' 22.021 (a)(1)(B)(iii), (a)(2)(B) (Vernon Supp. 2004-05).
[15] Perez v. State, 113 S.W.3d 819, 838 (Tex. App.BAustin 2003, pet. ref'd);Villanueva v. State, 703 S.W.2d 244, 245 (Tex. App.BCorpus Christi 1985, no writ).
[16] Tex. Code Crim. Proc. Ann. art. 38.07(a) (Vernon 2005).
[17] Clark v. State, 558 S.W.2d 887, 889 (Tex. Crim. App. 1977); see Gallegos v. State, 918 S.W.2d 50, 54 (Tex. App.BCorpus Christi 1996, pet. ref'd).
[18] Villalon v. State, 791 S.W.2d 130, 134 (Tex. Crim. App. 1990).
[19] See Garcia v. State, 563 S.W.2d 925, 928 (Tex. Crim. App. 1978).
[20] Perez, 113 S.W.3d at 838.
[21] At trial, the victim identified the Amiddle part@ on atomically correct pictures of a boy and girl as their sexual organs.
[22] Perez, 113 S.W.3d at 838.
[23] See Ford v. State, 26 S.W.3d 669, 672 (Tex. App.BCorpus Christi 2000, no pet.) (citing Oles v. State, 993 S.W.2d 103, 106 (Tex. Crim. App. 1999)).
[24] State v. Ballard, 987 S.W.2d 889, 891 (Tex. Crim. App. 1999).
[25] State v. Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 2000); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).
[26] Ross, 32 S.W.3d at 856; Guzman, 955 S.W.2d. at 89.
[27] Ross, 32 S.W.3d at 856; Guzman, 955 S.W.2d. at 89.
[28] Garcia v. State, 15 S.W.3d 533, 535 (Tex. Crim. App. 2000).
[29] Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996).
[30] The State introduced State=s Exhibits 4 and 6, two written statements by appellant.
[31] Appellant=s first statement, State=s Exhibit 4, was admitted at trial.
[32] At the conclusion of the suppression hearing, the trial court stated, AI do find that the suppression, that the confession was the [sic] freely and voluntarily made pursuant to 38.22 or 38.23 of the Code of Criminal Procedure, and it is admissible for the jury=s purposes. No coercion, everything was freely and voluntarily done.@
[33] Tex. Code Crim. Proc. Ann. art. 38.22 ' 6 (Vernon 2005).
[34] See Miranda v. Arizona, 384 U.S. 436, 444 (1966).
[35] Miniel v. State, 831 S.W.2d 310, 315 (Tex. Crim. App. 1992); Lamb v. State, 680 S.W.2d 11, 15 (Tex. Crim. App. 1984); Denoso v. State, 156 S.W.3d 166, 175 (Tex. App.BCorpus Christi 2005, pet. ref=d).
[36] See Denoso, 156 S.W.3d at 176.
[37] See id.
[38] See id.