Nunez v. State

RUBEN NUNEZ JR., Appellant, v. THE STATE OF TEXAS, Appellee.

NUMBER 13-19-00457-CR

COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG

March 18, 2021

On appeal from the 430th District Court of Hidalgo County, Texas.

MEMORANDUM OPINION

Before Justices Benavides, Hinojosa, and Silva

Memorandum Opinion by Justice Silva

Appellant Ruben Nunez Jr. appeals his conviction of two counts of indecency with a child by sexual contact, a second-degree felony. See TEX. PENAL CODE § 21.11(a)(1), (d). By three issues, which we have reorganized, appellant argues: (1) the trial court erred when it denied his motion for mistrial; (2) the trial court erred by allowing expert testimony by a witness; and (3) the evidence is insufficient to support the convictions. We affirm.

I. BACKGROUND

On December 13, 2018, Nunez was indicted on three counts of indecency with a child by sexual contact and one count of aggravated sexual assault of a child younger than fourteen, a first-degree felony.¹ Id. §§ 21.11, 21.011. The complainant, M.O.,² is Nunez's cousin. At trial, M.O. recounted multiple instances wherein Nunez made sexual contact with her when she was approximately seven years old. At the time, Nunez was eighteen years old and resided with M.O., her parents, and her infant sister in McAllen, Texas. M.O.'s mother testified that M.O. told her of the assaults when M.O. was still seven years old.

Among the incidents M.O. recounted, she testified that Nunez held her down and forced her to touch his penis:

Ruben[] was pinning me down. I was on my back and I mean, I was seven. He was 18. So he was a lot stronger than me. He had me pinned down[,] and he had [h]is pants off to where I can see his private parts and he had—he was pulling my hand toward his private parts for me to touch him, and this time, I remember him saying, "It's okay. It's okay." Because I really didn't like it. So I think I was really squirming. Well, I know I was really squirming and trying to get away, because I remember the pain in my wrist from trying to pull back. And he said, "It's okay. I do this with [my girlfriend] all the time. It's okay."

M.O. later clarified that Nunez did force her to touch his penis during the incident. M.O. also recounted that she had her father wrap her tightly in a blanket at night when she went to bed in hopes it would prevent Nunez from coming into her bedroom and touchingher breasts, as he had before. When describing the origins of her father wrapping her tightly in a blanket, M.O. explained:

[W]e could be like watching a movie and to get comfortable, you know, ["]let's get you tight["], and then—but when the incidents would happen, I started asking [my father]—he wouldn't do it at night, but when the incidents started happening, I would ask him to put me to sleep like that.

When asked how she could be "100 percent" sure it was Nunez touching her at night when the lights were off, M.O. stated, "[b]ecause I know how his touch felt like."

M.O. said that Nunez would occasionally come up behind her while she was doing her homework and reach under her shirt and rub her breasts with his hands. In a similar incident, M.O. recounted:

I was in the kitchen doing homework and this one, I remember extremely vividly. I was doing homework and he grabbed me and put me on the counter. I was kind of small so he picked me and put me on the counter, the kitchen counter. The sink was on this side, and it was kind of open here, and he started putting his hands—started on my legs and going up, but because I had my gymnastics uniform on, it was kind of tight. The shorts were kind of tight, because it was spandex. And he was trying to put his hands through the shorts. And at this time, I remember thinking, you know, in the 90s they had these, like a block with a whole bunch of knives, you know kitchen knives, and I remember thinking: If I—if only I can get him to stop. If I can grab one of these knives and get him to stop. But then I was like, no, because then I'm going to get in trouble. You know, I don't want to get in trouble, so I'm not going to do that. So he was continuing. The only thing is, I don't remember how that stopped, how that event stopped.

Jeanette Rodriguez, a licensed professional counselor and mental health therapist with the Children's Advocacy Center, was called to testify on behalf of the State. Rodriguez did not interview M.O., and only testified broadly to aspects of child sexual abuse cases, including "grooming," delayed outcries, and common effects of sexual abuse in children. During Rodriguez's testimony, the following colloquy occurred:

[State]: Okay. So I want to talk about your general knowledge to educate the jury in understanding the dynamics of a victim of child abuse as well as a perpetrator. Okay.

And so to do that, my first question is, can you explain for the jury what the term "grooming" means, if you know?

[Rodriguez]: Okay, so grooming is a term that we—that is commonly used when it comes to sexual abuse. It is related to—

[Nunez]: Your Honor, I'm going to object to relevance, Judge. One, she has not individually interviewed the alleged accuser in this case, Judge, and she's legally[—]

[COURT]: What is your response from the State?

[State]: Judge, we didn't ask any questions and will not ask any questions about the victim. However, she's educating the jury in general knowledge as fa[r] as the psychology of child victims.

[COURT]: Okay, the objection is overruled. Court will allow it.

Nunez did not object to Rodriguez's testimony again.

After both the State and Nunez rested their cases in chief, but before closing arguments, Nunez moved for a mistrial outside the presence of the jury. According to Nunez, M.O. posted a photograph of herself at seven years' old to a social media account, stating that she had been waiting to testify against her abuser for "20 something years" and that Nunez had "fled to Mexico." Nunez did not offer the post as an exhibit nor introduce it into the record in any manner. Nunez's counsel stated that "[he] had no knowledge" of whether any juror had been made aware of the post. The trial court denied Nunez's motion, noting there was no indication the jury was aware of the post. However, the trial court had previously instructed the jury to "not conduct [their] own investigation about this case" and to refrain from communicating with anybody regarding the trial, including through social media.

The jury found Nunez guilty of both offenses. The trial court sentenced Nunez to fifteen years' confinement for each offense, to run concurrently. This appeal followed.

II. SUFFICIENCY OF THE EVIDENCE

We first address Nunez's third issue challenging the sufficiency of the evidence supporting his conviction because, if sustained, it would provide Nunez the greatest relief. Nunez does not specify which count the evidence was insufficient to support. Accordingly, we construe Nunez's argument as a challenge to each conviction.

A. Standard of Review and Applicable Law

In reviewing the sufficiency of the evidence to support a conviction, we consider the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Stahmann v. State, 602 S.W.3d 573, 577 (Tex. Crim. App. 2020) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)).

We consider both direct and circumstantial evidence as well as all reasonable inferences that may be drawn from the evidence. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). Circumstantial evidence is as probative as direct evidence in establishing guilt, and circumstantial evidence alone can be sufficient to establish guilt. Nisbett v. State, 552 S.W.3d 244, 262 (Tex. Crim. App. 2018); Temple v. State, 390 S.W.3d 341, 359 (Tex. Crim. App. 2013). "Each fact need not point directly and independently to the guilt of a defendant, as long as the cumulative force of all the incriminating circumstances is sufficient to support the conviction." Walker v. State, 594 S.W.3d 330, 335 (Tex. Crim. App. 2020) (citing Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007)). The uncorroborated testimony of either the child or an outcry witness is sufficient to support a conviction for indecency with a child or sexual assault of a child. Jones v. State, 428 S.W.3d 163, 169 (Tex. App.—Houston [1st Dist.] 2014, no pet.) (providing that courts give wide latitude to testimony provided by child victims of sexualabuse); see TEX. CODE CRIM. PROC. ANN. art. 38.07(a) ("A conviction under Chapter 21 . . . is 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 within one year after the date on which the offense is alleged to have occurred."); see also Benson v. State, No. 13-18-00450-CR, 2020 WL 4812635, at *10 (Tex. App.—Corpus Christi-Edinburg Aug. 13, 2020, pet. ref'd) (mem. op., not designated for publication). The State has no burden to produce any corroborating or physical evidence. Gutierrez v. State, 585 S.W.3d 599, 607 (Tex. App.—Houston [14th Dist.] 2019, no pet.). We resolve any evidentiary inconsistencies in favor of the verdict, keeping in mind that the fact-finder is the exclusive judge of the facts, the credibility of the witnesses, and the weight to give their testimony. Walker, 594 S.W.3d at 335; see TEX. CODE CRIM. PROC. ANN. art. 38.04.

Sufficiency of the evidence is measured by the elements of the offense as defined by a hypothetically correct jury charge. See Metcalf v. State, 597 S.W.3d 847, 856 (Tex. Crim. App. 2020) (citing Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)); Romano v. State, 610 S.W.3d 30, 34 (Tex. Crim. App. 2020). The hypothetically correct jury charge 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...