Nunez v. State

NEFTALY NUNEZ A/K/A NEFTALI NUNEZ GONZALEZ A/K/A NEFTALI NUNEZ, Appellant, v. THE STATE OF TEXAS, Appellee.

NUMBER 13-17-00671-CR

COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG

April 25, 2019

On appeal from the 357th District Court of Cameron County, Texas.

MEMORANDUM OPINION

Before Justices Benavides, Longoria, and Hinojosa

Memorandum Opinion by Justice Longoria

Appellant Neftaly Nunez a/k/a Neftali Nunez Gonzalez a/k/a/ Neftali Nunez was convicted for aggravated sexual assault of a child and indecency with a child. See TEX. PENAL CODE ANN. §§ 22.021(a)(2)(B), 21.11(a)(1) (West, Westlaw through 2017 1st C.S.). By eight issues, which we have renumbered, Nunez argues on appeal that (1) the evidence was legally insufficient to support his convictions, and that the trial court erred by: (2) denying his motion to sever; (3) allowing biased jurors to remain on the panel; (4) failing to remain impartial and neutral; (5) denying his oral motion for continuance; (6) admitting certain expert testimony; (7) allowing the State to make inappropriate closing arguments; and (8) improperly instructing the jury in the jury charge. We affirm.

I. BACKGROUND

Nunez was indicted on charges of aggravated sexual assault of a child, a first-degree felony (count one), and indecency with a child, a second-degree felony (count two). See id. §§ 22.021(a)(2)(B), 21.11(a)(1). Trial began on November 14, 2017.

S.L.¹, the child complainant in count one, testified that Nunez is a friend of her mom's friend, S.C. According to S.L., S.C. and Nunez spent a lot of time with S.L.'s family, including on the date of the alleged incident, January 9, 2013. S.L. asserted that Nunez was asked to get soda for a party and that she and Nunez left together to acquire soda. S.L. claims that Nunez took her to a remote area and sexually assaulted her before returning to the party. S.L. also admitted that she did not like Nunez because she witnessed him grabbing S.C.'s throat and pushing her.

A.G., the child complainant in count two, is the daughter of S.C. According to A.G., Nunez touched her breast and "private part" two times when she was about seven or eight years old and lived in an apartment. She testified that Nunez additionally touched her breast and "private part," both over and under the clothes, twice while she was at hergrandmother's house. She further testified that Nunez touched her breast and penetrated her "private part" with his finger three times while living in a trailer.

Sonja Edelman, a forensic nursing expert for the State, testified regarding female physiology, sexual assault, and her experience conducting interviews of sexual assault complainants.

Detective Sam Lucio, a police detective for the City of Brownsville, the lead investigator in the case, testified about his investigations in this case.

After the State rested, Nunez's wife, Joanna Nunez, testified that she married Nunez in 2010. According to her, she "ended the marriage because he cheated on me with [S.C.], the victim's mother." Joanna claimed that S.C. has had contact with Nunez in the last year.

Nunez took the stand and denied touching either of the child complainants. He asserted that the grandmother's house was so small, he never would have been alone with the children long enough to have to commit the alleged offenses.

The next day, the jury charge was read to the jury without any objections by either party. The jury returned a guilty verdict on both counts. On count one, the jury returned a sentence of sixty years' imprisonment in the Institutional Division of the Texas Department of Criminal Justice. On count two, the jury returned a sentence of twenty years' imprisonment in the Institutional Division of the Texas Department of Criminal Justice. The trial court sentenced Nunez according to the punishment assessed by the jury. This appeal followed.

II. LEGAL SUFFICIENCY

In his first issue, Nunez argues that there was legally insufficient evidence to establish that he committed the offenses.

A. Standard of Review and Applicable Law

When reviewing the legal sufficiency of the evidence, "the relevant question 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." Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007) (emphasis in original); see Jackson v. Virginia, 443 U.S. 307, 319 (1979). The fact finder is the exclusive judge of the facts, the credibility of the witnesses, and the weight to be given to the testimony. See Bartlett v. State, 270 S.W.3d 147, 150 (Tex. Crim. App. 2008). "The jury may choose to believe or disbelieve any portion of the witnesses' testimony." Bargas v. State, 252 S.W.3d 876, 887 (Tex. App.—Houston [14th Dist.] 2008, no pet.). A reviewing court cannot overturn a conviction simply because it disagrees with the jury's verdict. See id.

There may be insufficient evidence to support a conviction if there is a "fatal variance" between the "offense as charged in the indictment and the offense proved." Stevens v. State, 891 S.W.2d 649, 650 (Tex. Crim. App. 1995). A variance is fatal only if it surprises or misleads the party to his prejudice. See id.

B. Analysis

1. Identity of the Complainants

Nunez's complaint that there was a variance between the indictment and the evidence adduced at trial will be treated as an insufficiency claim. See Gollihar v. State,46 S.W.3d 243, 247 (Tex. Crim. App. 2001) ("[W]e have routinely treated variance claims as insufficiency of the evidence problems.").

Nunez first argues that there is no evidence that the children who testified at trial are the same child complainants alleged in the indictment. According to Nunez, the State failed to provide him with a pseudonym affidavit, and therefore he was not properly informed that the State was going to use pseudonyms for the complainants. See TEX. CODE CRIM. PROC. ANN. art. 57.02(b) (West, Westlaw through 2017 1st C.S.).

The Texas Court of Criminal Appeals has rejected a similar argument. See Stevens, 891 S.W.2d at 651. In Stevens, the indictment referred to the complainant using a pseudonym, but throughout the trial, the complainant was referred to using his legal name. See id. The defendant complained that there was a fatal variance between the indictment and the evidence at trial. But the court reasoned:

[b]y enacting art. 57.02, the Legislature changed the manner in which the victim may be alleged in an indictment. In doing so the Legislature sought to address and satisfy two competing interests: the defendant's due process right to notice of the offense for which he was indicted; and, the victim's interest in avoiding the embarrassment associated with a public pronouncement of the details of the alleged offense. The pseudonym is used to protect the victim—not to deprive the defendant of notice. Therefore, we hold the fatal variance doctrine is inapplicable to pseudonym cases so long as the defendant's due process right to notice is satisfied. Appellant does not, and indeed could not, contend he was surprised to learn the victim's identity.

Id. (internal citations omitted). The same is true in Nunez's case. He cannot argue that he was surprised or misled by the evidence at trial concerning the identity of the child complainants. See id. At no point during the trial did Nunez express confusion or surprise over the identity of the complainants. In addition, the pseudonyms used, S.L. and A.G., were clear enough to make it obvious which child complainant was being referred to. Seeid. (finding no due process violation even though the pseudonym in the indictment was a number). The variance between the indictment and the names used at trial was not material. See Gollihar, 46 S.W.3d at 257 ("In summary, we hold that when faced with a sufficiency of the evidence claim based upon a variance between the indictment and the proof, only a 'material' variance will render the evidence insufficient."). We conclude there was legally sufficient evidence to establish the identity of the complainants. See Stevens, 891 S.W.2d at 651.

2. Intent to Arouse or Gratify Sexual Desire

Second, Nunez argues that the evidence was insufficient to prove that he had the specific intent to arouse or gratify his sexual desire as it related to count two, indecency with a child. "An essential element of the offense of indecency of a child is the mental state that accompanies the forbidden conduct: the specific intent to arouse or gratify the sexual desire of any person." McKenzie v. State, 617 S.W.2d 211, 213 (Tex. Crim. App. 1981); Gonzalez v. State, 522 S.W.3d 48, 57 (Tex. App.—Houston [1st Dist.] 2017, no pet.). Nunez argues that the evidence at trial only amounted to "he touched my breast over and under the clothes." According to Nunez, the record is devoid of any evidence of his specific intent to arouse his sexual desire.

However, the specific intent required for the offense of indecency with a child may be inferred from a defendant's conduct, his remarks, and all of the surrounding circumstances. See Gonzalez, 522 S.W.3d at 57; Connell v. State, 233 S.W.3d 460, 467 (Tex. App.—Fort Worth 2007, no pet.). An oral expression of intent is not required where the conduct itself is sufficient to infer intent. See Connell, 233 S.W.3d at 467.Furthermore, a child complainant's testimony alone is sufficient to support a conviction for indecency with a child. See id. at 466.

A.G. testified that Nunez walked into her bedroom while she was in bed and began to touch her on her breast and vagina, both over and underneath her clothes. She testified that this happened six or seven times, and that Nunez penetrated her vagina with his finger on at least three of those occasions. The jury, as the sole judge of the credibility of the witnesses, was free to believe A.G.'s testimony, and it could have reasonably found from A.G.'s testimony that Nunez touched A.G....