NUMBERS 13-14-00370-CR & 13-14-00371-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
MARVIN NOEL CABALLERO-LOPEZ, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 221st District Court
of Montgomery County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Benavides and Perkes
Memorandum Opinion by Justice Perkes1
Appellant Marvin Noel Caballero-Lopez appeals his conviction for two counts of
aggravated sexual assault of a child, first degree felonies.2 See TEX. PENAL CODE ANN.
1 Pursuant to a docket-equalization order issued by the Supreme Court of Texas, the appeal has
been transferred to this Court from the Ninth Court of Appeals in Beaumont, Texas. See TEX. GOV'T CODE
ANN. § 73.001 (West, Westlaw through Ch. 46 2015 R.S.).
2Appellate cause no. 13-14-00370-CR is the appeal from trial court cause no. 13-02-01693-CR-
CT1. Appellate cause no. 13-14-00371-CR is the appeal from trial court cause no. 13-02-01693-CR-CT2.
§ 22.021(f)(1) (West, Westlaw through Ch. 46 2015 R.S.). A jury found appellant guilty,
and the trial court assessed punishment on each count at forty-five years’ imprisonment,
to be served concurrently. By three issues, appellant argues that: (1) the evidence is
factually insufficient to support the jury’s verdict; (2) the trial court erred when it allowed
multiple outcry witnesses; and (3) the trial court erred in allowing the testimony of Josefina
Medina. We affirm.
I. BACKGROUND
Appellant’s six year old daughter E.R.3 testified to the following: E.R. stated that
when she was five years old she was home with appellant while her mother was at work.
As E.R. was watching television, appellant removed his pants and put his penis in E.R.’s
mouth, while instructing E.R. to “suck on” his penis. Appellant then told E.R. to go to the
bedroom and lay face down on the bed, where he proceeded to put his penis in E.R.’s
anus. Afterward, appellant took E.R. to the bathroom and wiped her bottom with water.
Appellant told E.R. that if she told anyone what happened, he would hit her with a belt.
During her testimony, E.R. referred to the penis and anus as a “tail,” but was able to
identify the parts of the body through the use of diagrams of a nude male and female.
Following a pre-trial hearing, the trial court held that mother and the forensic
interviewer, Mayra Domingue, would be allowed to testify as outcry witnesses pursuant
Our analysis allows us to consider them in a consolidated opinion.
3 In order to protect their identities, we refer to complainant by her initials and to complainant’s
mother as “mother.”
2
to article 38.072 of the Texas Code of Criminal Procedure. See TEX. CODE CRIM. PROC.
art. 38.072 (West, Westlaw through Ch. 46 2015 R.S.).
Mother testified that she observed E.R. playing outside with a young boy in the
neighborhood. Afterward, mother told E.R. “you should not allow yourself to be touched
by a boy.” E.R. responded by saying “it is my father touching me.” E.R. was at first
reluctant to elaborate, stating appellant “will spank me.” After receiving assurance from
mother, E.R. shared that she was laying on appellant’s stomach in the living room, when
appellant tried to put his penis in her mouth. E.R. did not disclose at this time whether
appellant penetrated her mouth with his penis. She then shared that appellant sent her
to the bedroom where appellant “put his tail in my tail.” E.R. stated that it hurt “just a little
bit, because he pushed lightly.” Mother testified that E.R. uses the term “tail” to reference
the penis and anus. E.R. told her mother that appellant took her to the bathroom and
“cleaned my parts with his hand.” According to E.R., appellant stated “if you tell your
mother, you know I am going to break your teeth with a shovel.” Following E.R.’s outcry,
mother, who does not speak English, sought the assistance of a friend to contact the
police.
Mayra Domingue is a forensic interviewer employed by Children’s Safe Harbor.
Domingue provided testimony concerning her forensic interview with E.R. E.R. told her
that she was watching television with her head on appellant’s stomach. Appellant
removed his penis from his underwear and told E.R. to scoot down until she was next to
his penis. Appellant then told E.R. to put his penis in her mouth, and she did. Next,
appellant told her to go to the bedroom where he removed her pants and underwear and
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laid her on the bed. Appellant then inserted his penis in her anus. Afterward, appellant
took E.R. to the bathroom where he used his hand to clean E.R.’s bottom with water.
Appellant told E.R. “if you tell mom, I am going to hit you.” E.R. stated the incident
occurred approximately two months prior to the interview with Domingue.
Dr. Lawrence Thompson, a licensed psychologist with the Harris County Children’s
Assessment Center, testified regarding manners of disclosure demonstrated by child
victims of sexual assault. Thompson explained that child victims do not always report
abuse immediately due to shame, guilt, inappropriate feelings of responsibility, and
coercion by the perpetrator. Thompson also explained that children do not always fully
disclose the abuse during their initial outcry and may only partially disclose what
happened due to feelings of shame and guilt.
Rachel Bryant, a sexual assault nurse examiner with Memorial Hermann Hospital,
testified concerning her examination of E.R. The date of the exam was approximately
two months following the reported sexual assault. Bryant testified that she observed no
trauma or injuries during her exam, and that she was unable to collect any DNA evidence.
Bryant explained that if more than two weeks have elapsed since the date of an assault,
she would not anticipate seeing any injuries due to “rapid healing of the area.” Bryant
generally attempts to collect DNA up to ninety-six hours after an alleged assault. She
explained that studies show DNA “most likely is not there” after ninety-six hours.
Appellant testified that he lived with the mother of E.R. for fifteen years and that
they had a good relationship through 2011. He stated his relationship with her worsened
after he totaled his car, which made it difficult to get to work and to pick up the children,
4
and that it eventually caused him to lose his job. Appellant fought with the mother over
her brother moving into their house. During this time, mother asked appellant to leave
the house on several occasions, but also threatened to call the police if he left her.
Appellant testified he loved his daughters and would never harm them. He denied
sexually abusing E.R.
In the state’s rebuttal, Josefina Medina, who previously lived with appellant and
mother, testified that she had witnessed appellant threaten and hit E.R.
The jury found appellant guilty of two counts of aggravated sexual assault of a
child. This appeal followed.
II. SUFFICIENCY OF THE EVIDENCE
By his first point, appellant argues “the evidence is factually insufficient to support
the jury’s verdict.”4 We disagree.
A. Standard of Review
“The standard for determining whether the evidence is legally sufficient to support
a conviction is ‘whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.’” Johnson v. State, 364 S.W.3d 292, 293–94 (Tex. Crim.
App. 2012) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)); see Brooks v. State,
323 S.W.3d 893, 898–99 (Tex. Crim. App. 2010) (plurality op.). The fact-finder is the
4 The Jackson v. Virginia legal-sufficiency standard is the only standard that a reviewing court
should apply in determining whether the evidence is sufficient to support each element of a criminal offense
that the state is required to prove beyond a reasonable doubt. See Brooks v. State, 323 S.W.3d 893, 898–
99 (Tex. Crim. App. 2010) (plurality op.). Therefore, we will determine whether the evidence is legally
sufficient to support appellant’s convictions. See id.
5
exclusive judge of the credibility of witnesses and of the weight to be given to their
testimony. Brooks, 323 S.W.3d at 899; Lancon v. State, 253 S.W.3d 699, 707 (Tex.
Crim. App. 2008). Reconciliation of conflicts in the evidence is within the fact-finder’s
exclusive province. Wyatt v. State, 23 S.W.3d 18, 30 (Tex. Crim. App. 2000). We
resolve any inconsistencies in the testimony in favor of the verdict. Bynum v. State, 767
S.W.2d 769, 776 (Tex. Crim. App. 1989) (en banc).
We measure the sufficiency of the evidence by the elements of the offense as
defined by a hypothetically correct jury charge. Cada v. State, 334 S.W.3d 766, 773
(Tex. Crim. App. 2011) (citing Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App.
1997)). Such a charge is 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. Id.
In Count 1 of the indictment, the State alleged appellant committed aggravated
sexual assault of a child by penetrating E.R.’s mouth with his sexual organ. See TEX.
PENAL CODE ANN. § 22.021. The hypothetically correct jury charge for that offense
required the State to prove that appellant: (1) intentionally or knowingly; (2) caused the
penetration of the mouth of E.R by appellant’s sexual organ; (3) when E.R. was younger
than fourteen.5 See id.
5 E.R. was five years old at the time of the offense. The minimum term of imprisonment is increased
to 25 years if the victim of the offense is younger than six years of age at the time the offense is committed.
TEX. PENAL CODE ANN. § 22.021(f)(1) (West, Westlaw through Ch. 46 2015 R.S.).
6
In Count 2 of the indictment, the State alleged appellant committed aggravated
sexual assault of a child by penetrating E.R.’s anus with his sexual organ. See id. The
hypothetically correct jury charge for that offense required the State to prove that
appellant: (1) intentionally or knowingly; (2) caused the penetration E.R.’s anus by
appellant’s sexual organ; (4) when E.R. was younger than fourteen. See id.
B. Analysis
Appellant argues the evidence is insufficient for the following reasons: (1) the lack
of DNA evidence; (2) the absence of any injury or trauma as noted by the SANE nurse;
(3) E.R.’s demeanor during the nurse’s examination (alert, smiling, and cooperative); and
(4) the inconsistent statements of witnesses regarding E.R.’s allegations.
The State produced evidence in the form of E.R.’s testimony and the testimony of
two outcry witnesses establishing the elements of the charged offenses. The testimony
of a child sexual abuse victim alone is sufficient to support a conviction for aggravated
sexual assault. Soto v. State, 267 S.W.3d 327, 322 (Tex. App.—Corpus Christi 2008,
no pet.). E.R.’s testimony and outcry established that appellant inserted his penis in both
her mouth and her anus when she was five years old. E.R. referred to the penis and
anus as a “tail.” However, she was able to correctly identify the parts of the body by
using a diagram of a naked female and a naked male. The courts will give wide latitude
to testimony given by child victims of sexual abuse. Villalon v. State, 791 S.W.2d 130,
134 (Tex. Crim. App. 1990) (en banc). The victim’s description of what happened need
not be precise, and the child is not expected to communicate with the same level of
sophistication as an adult. Soto, 267 S.W.3d at 322.
7
With respect to the absence of DNA evidence or injuries to E.R., the record reflects
that E.R.’s initial outcry occurred approximately two months following the alleged sexual
assault. The SANE nurse, Rachel Bryant, testified that she does not attempt to collect
DNA evidence outside of ninety-six hours from the reported assault. Bryant explained
that the passage of time greatly diminishes the likelihood of recovering evidence because
of intervening events such as bathing and going to the bathroom. Bryant also explained
that if more than two weeks have elapsed since the date of an assault, she would not
anticipate seeing any injuries because of the “rapid healing of the area.” Furthermore,
in determining the sufficiency of evidence supporting a conviction, there is no requirement
that the victim's testimony be corroborated by medical or physical evidence. Id. at 332;
Ozuna v. State, 199 S.W.3d 601, 606 (Tex. App.—Corpus Christi 2006, no pet.).
Appellant also cites inconsistencies between E.R.’s initial outcry to mother and her
later outcry to Domingue and testimony at trial. The inconsistencies primarily concerned
whether appellant inserted his penis in E.R.’s mouth or just pressed his penis against her
lips, as alleged in E.R.’s initial outcry to mother. The State’s expert witness, Dr.
Thompson, testified that children often will delay disclosure of sexual abuse, and even
then they may only partially disclose what occurred in the initial outcry. The jury could
have reasonably reconciled the conflicting outcry statements by attributing the
inconsistencies to E.R.’s reluctance to fully disclose what had happened. See Wyatt, 23
S.W.3d at 30. Further, it was within the province of the jury to determine whether E.R.’s
demeanor during the nurse examination was consistent with a child victim of sexual
assault. See Brooks, 323 S.W.3d at 899; Lancon, 253 S.W.3d at 707.
8
Viewing the evidence in the light most favorable to the prosecution, we conclude
the evidence is sufficient to support the jury’s verdict. See Johnson, 364 S.W.3d at 293–
94. We overrule appellant’s first issue.
III. OUTCRY WITNESSES
By his second issue, appellant argues “[t]he Court erred when it allowed multiple
outcry witnesses so as to accumulate and compound the statements of witnesses.” We
disagree.
A. Standard of Review and Applicable Law
Texas Code of Criminal Procedure article 38.072 provides an “outcry” exception
to the general rule that hearsay statements are inadmissible. TEX. CODE CRIM. PROC.
ANN. art. 38.072. The outcry provision seeks both the fair prosecution of child abuse cases
and the protection of children in the courtroom, but is “carefully limited” to ensure the
reliability of the testimony. See Martinez v. State, 178 S.W.3d 806, 811 (Tex. Crim. App.
2005). The statute applies only to statements made (1) by the child against whom the
offense was allegedly committed, and (2) to the first person, eighteen years of age or
older, to whom the child made a statement about the offense. TEX. CODE CRIM. PROC.
ANN. art. 38.072 § 2(a). The outcry witness is the first adult to whom the child relates the
how, when, and where of the assault. Reyes v. State, 274 S.W.3d 724, 727 (Tex. App.—
San Antonio 2008, pet. ref'd). The statement must describe the alleged offense in some
discernible way and amount to “more than words which give a general allusion that
something in the area of child abuse was going on.” Garcia v. State, 792 S.W.2d 88, 91
9
(Tex. Crim. App. 1990). We review the trial court’s admission of an outcry witness’s
testimony under an abuse of discretion standard. Id. at 92.
B. Analysis
During a pre-trial hearing, the trial court heard evidence concerning the
admissibility of E.R.’s outcry statements to three witnesses. Appellant argued that only
the mother, to whom the initial outcry was made, should be permitted to testify. The trial
court held that both mother and Domingue would be allowed to testify—mother, as the
initial outcry witness, and Domingue, who received “new information” not shared with
mother. The trial court held that a third witness would not be permitted to testify as an
outcry witness.
The outcry exception is only available for one witness “unless the child revealed
discrete occurrences of the same offense, or revealed different offenses, to separate
adults.” Reynolds v. State, 227 S.W.3d 355, 369 (Tex. App.—Texarkana 2007, no pet.).
For instance, “[i]f the child victim first described one type of abuse to one outcry witness,
and first described a different type of abuse to a second outcry witness, the second
witness could testify about the different instance of abuse.” Tear v. State, 74 S.W.3d
555, 559 (Tex. App.—Dallas 2002, pet ref’d).
Appellant was being tried for two separate counts of aggravated sexual assault of
a child. The record reflects that E.R. described different offenses to separate adults—
the penetration of E.R.’s anus, first described to mother, and the penetration of E.R.’s
mouth by appellant’s penis, first described to Domingue. Therefore, allowing both
witnesses to testify was not an abuse of discretion. See Tear, 74 S.W.3d at 559; see
10
also Pierce v. State, No. 10–09–00320–CR, 2010 WL 2683052, at *1–2 (Tex. App.—
Waco July 7, 2010, no pet.) (mem. op., not designated for publication) (holding trial court
did not abuse its discretion by permitting forensic interviewer’s outcry testimony that
appellant inserted his tongue into victim’s vagina when another witness testified that
appellant touched victim's vagina did not describe charged offense—appellant
penetrating victim's sex organ with his tongue—in any discernible way); Sledge v. State,
No. 03–03–00092–CR, 2004 WL 438958, at *1–3 (Tex. App.—Austin Mar.11, 2004, no
pet.) (mem. op., not designated for publication) (holding that when both allegations arose
out of the same act, allowing testimony of both outcry witnesses was not abuse of
discretion when one witness’s testimony went to indecency with a child allegation and the
other witness’s testimony went to penetration element of aggravated sexual assault
allegation); Turner v. State, 924 S.W.2d 180, 183 (Tex. App.—Eastland 1996, pet. ref'd)
(holding that officer was the appropriate outcry witness because, even though victim told
counselor that appellant penetrated her vagina with his finger, she told officer, not
counselor, that appellant penetrated her with his penis, as alleged in the indictment).
We overrule appellant’s second issue.
IV. ADMISSIBILITY OF MEDINA’S TESTIMONY
By his third issue, appellant argues “[t]he Court erred in allowing the testimony of
Josefina Medina, the value of which was more prejudicial than probative and unfairly
allowed the jury to weigh extraneous acts of [appellant].” Appellant asserts “[Medina]
was allowed to testify about prior alleged acts of aggression (extraneous acts) by
[appellant], including another alleged incident whereby [Medina] claims that appellant
11
struck the child, [E.R.], in her presence as to give credibility to his ability to make threats
against the child.” Appellant maintains that the trial court's ruling was in violation of
Texas Rules of Evidence 403 and 404(b). See TEX. R. EVID. 403, 404(b).6 Appellant
failed to preserve this issue for review.
A complaint is not preserved for review on appeal unless it was made to the trial
court by a timely request, objection or motion that states the grounds for the ruling that
the complaining party sought from the trial court. Resendez v. State, 306 S.W.3d 308,
312 (Tex. Crim. App. 2009) (citing TEX. R. APP. P. 33.1(a)(1)(A)). A “point of error on
appeal must comport with the objection made at trial.” Wilson v. State, 71 S.W.3d 346,
349 (Tex. Crim. App. 2002); see also Swain v. State, 181 S.W.3d 359, 367 (Tex. Crim.
App. 2005).
During rebuttal, the State called Josefina Medina. Appellant anticipated that her
testimony would be strictly hearsay and solely objected on those grounds. The State
explained to the trial court that it intended to offer Medina’s rebuttal testimony to establish
6 Texas Rules of Evidence 403 states “[t]he court may exclude relevant evidence if its probative
value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing
the issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence.” TEX. R. EVID.
403.
Texas Rules of Evidence 404(b), entitled “Crimes, Wrongs, or Other Acts”, states: “(1) Prohibited
Uses. Evidence of a crime, wrong, or other act is not admissible to prove a person's character in order to
show that on a particular occasion the person acted in accordance with the character. (2) Permitted Uses;
Notice in Criminal Case. This evidence may be admissible for another purpose, such as proving motive,
opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. On timely
request by a defendant in a criminal case, the prosecutor must provide reasonable notice before trial that
the prosecution intends to introduce such evidence--other than that arising in the same transaction—in its
case-in-chief.” TEX. R. EVID. 404(b).
12
appellant’s aggression toward E.R.7 The trial court concluded that Medina could testify
concerning appellant’s aggression toward E.R. to rebut appellant’s statement that he
would never abuse his daughter. Appellant offered no further objection in that regard.
Medina then testified that she witnessed appellant both threaten and hit E.R. During her
testimony appellant’s counsel again objected on the basis of hearsay.
Appellant’s Rule 403 and 404 complaints regarding appellant’s aggression
against E.R. do not comport with the objections that he made at trial. Appellant raised
only a hearsay objection to that challenged testimony. An objection stating one legal
theory may not be used to support a different legal theory on appeal. Broxton v. State,
909 S.W.2d 912, 918 (Tex. Crim. App. 1995). Appellant failed to preserve this point of
error. We overrule appellant’s third issue.
V. CONCLUSION
We affirm the judgment of the trial court.
GREGORY T. PERKES
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
17th day of September, 2015.
7 The State also intended to offer Medina’s testimony to establish appellant’s previous use of a
machete while threatening mother. With respect to this testimony, appellant’s counsel stated “we would
also object on 404 grounds and 403 grounds.” The trial court sustained appellant’s objection regarding the
threats against mother.
13