Perez-Morales v. State

1

RUBEN PEREZ-MORALES, Appellant, v. THE STATE OF TEXAS, Appellee.

No. 13-22-00540-CR

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

September 14, 2023

Do not publish. TEX. R. APP. P. 47.2 (b).

On appeal from the 28th District Court of Nueces County, Texas.

Before Chief Justice Contreras and Justices Benavides and Longoria

MEMORANDUM OPINION

NORA L. LONGORIA, JUSTICE

Appellant Ruben Perez-Morales was convicted of continuous sexual abuse of a young child, a first-degree felony, and sentenced to thirty-five years' imprisonment. See TEX. PENAL CODE ANN. § 21.02(b). In his sole issue on appeal appellant challenges the sufficiency of the evidence to support his conviction. We affirm.

I. BACKGROUND

The State indicted appellant on one count of continuous sexual abuse of a young child, six counts of aggravated sexual assault, and two counts of indecency with a child. See id. §§ 21.02(b), 22.021(a)(2)(B), 21.11(d). As to the count of continuous sexual abuse of a young child, the State alleged that appellant:

did then and there in Nueces County, Texas, during a period that was 30 days or more in duration, to-wit: from on or about February 4, 2021 through April 4, 2021, when [appellant] was 17 years of age or older, did commit two or more acts of sexual abuse against J.P.^[1], a child younger than 14 years of age, and said acts having been violations of one or more of the following penal laws including:

did then and there intentionally or knowingly cause the penetration of the mouth of J.P., a child who was then and there younger than 14 years of age and not the spouse of the defendant, by the defendant's sexual organ,

AND/OR

did then and there intentionally or knowingly cause the sexual organ of J.P., a child who was then and there younger than 14 years of age and not the spouse of the defendant, to contact the mouth of the defendant,

AND/OR

did then and there intentionally or knowingly cause the sexual organ of J.P., 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,

AND/OR

did then and there intentionally or knowingly cause the anus of J.P., 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,

AND/OR

did then and there intentionally or knowingly cause the penetration of the anus of J.P., a child who was then and there younger than 14 years of age and not the spouse of the defendant, by defendant's hand/finger,

AND/OR

did then and there intentionally or knowingly cause the penetration of the female sexual organ of J.P., a child who was then and there younger than 14 years of age and not the spouse of the defendant, by defendant's hand/finger,

AND/OR

did then and there, with the intent to arouse or gratify the sexual desire of the defendant, engage in sexual contact with J.P., hereafter styled the complainant, by touching the anus of the complainant, a child younger than 17 years of age,

AND/OR

did then and there, with the intent to arouse or gratify the sexual desire of the defendant, engage in sexual contact with J.P., hereafter styled the complainant, by touching the genitals of the complainant, a child younger than 17 years of age[.]

A. Trial

L.J and appellant were married in September 2010 and separated in 2016. They have three children together, R.J, J.P., and A.J J.P. was born October 7, 2012. After separating, they continued to live together as coparents for two to three years. L.J. was not employed during their marriage. At some point in 2016, L.J. took J.P. to the hospital because she believed she had seen something occur between appellant and J.P., but the hospital could not determine whether anything had happened. L.J. did not elaborate on the incident at trial. Subsequently, after L.J. had moved out with the children on her own, the children were able to visit with appellant. One evening, when L.J. was at work, the children were in L.J.'s mother's care. L.J.'s mother called her expressing concern regarding J.P. making an outcry against appellant, and L.J. stated that she immediately picked J.P. up and brought her to the hospital. An examination was conducted, and J.P. was referred for a follow up examination with the child abuse resource and evaluation (CARE) team.

On cross-examination, L.J. stated that there was another man, a friend of L.J.'s that J.P. stated made her touch him sexually. L.J. could not be "sure" who the other man was, as J.P. did not identify him by name, though L.J. thought it could have been a friend of hers or someone she had dated.

At the time of trial, J.P. was ten years old. J.P. testified that she understood that no one was supposed to touch "her front part," "her back part," or her chest area without her permission, but that appellant had done so. She explained that appellant had touched her "front part and back part" with his "front part." Appellant also touched her with his tongue on her "front part." J.P. explained that the touching happened "more than four times" and it made her feel scared. She said that appellant would tell her not to tell anybody what had happened. She eventually told her grandmother what happened. She stated she decided to tell her grandmother what happened because she "didn't want to go with [appellant] anymore, because he was being rude to [her] dog." After she told her grandmother what happened, her mother took her to the hospital. J.P. admitted that she had been asked to lie about things in the past by her mother, but that she had not been asked to lie about what appellant did. She could not recall specific instances that her mother had asked her to lie, but did not dispute that her mother had asked her to lie regarding instances where her mother left her unattended. She explained that appellant had touched her "with his front part" and they were not wearing clothes. She also said that "white stuff" came out of "his front part" and he would throw it to the floor.

N.J., J.P.'s maternal grandmother, testified as the outcry witness. She explained that she often babysat the children, and she would sometimes have appellant pick the children up to assist her and to have visits with his children. She recalled that in April 2021, prior to appellant picking up the children one day, she told the children it was time to get ready and J.P. began to cry, asking to stay with her instead. When N.J. asked J.P. why she did not want to go with appellant, J.P. told her that appellant had been touching her "in the front" and "in the back." N.J. said the information "shock[ed]" her and she called the Department of Child Protective Services (CPS) and her daughter. L.J. picked J.P. up and took her to the hospital, per CPS instructions. N.J. recalled that J.P. had told her that appellant touched her and that "she mentioned [] that he put his part to her back part. And that he was saying it wasn't gonna hurt."

N.J. also recalled that J.P. did not want to go with her father because he was mean to her dog. N.J. further testified that she had previously called CPS and the police several times for different reasons related to her daughter's care of the children, including once when L.J. left the children unattended at home while she went to work. In November 2020, CPS gave her temporary custody of the children while L.J. completed a service program to get her children back after leaving them home alone.

Esmerelda Ruby Garza, a forensic interviewer with the Children's Advocacy Center, testified that she interviewed J.P. in April of 2021. During her interview with J.P., J.P. informed her that there was one time that she was sitting with appellant on the couch at home, when L.J. and appellant were still living together, and appellant had a blanket over J.P. and was touching her. L.J. walked in, saw what appellant was doing, and immediately took J.P. to the doctor. J.P. said that appellant made her remove her pants and underwear. J.P. stated that appellant would touch himself and J.P. gestured how he would do that, and then she said appellant would "touch[] her with the wet part." J.P. also recalled incidents where appellant would have her lay on the bed, and he would turn her around and "put[] it all the way in." When provided a diagram of the female body, she circled her "middle part" or vagina, and her "back part" or anus. J.P. said that it was painful and described the incidents, saying "that it sounded like two things hitting each other." J.P. stated that this happened twice.

CPS investigator Christian Escamilla testified that she was assigned to the case involving J.P.'s outcry against appellant. She interviewed L.J. and N.J. and she reviewed the forensic interview of J.P. She also spoke to the medical professionals. Because she does not speak Spanish, the meeting with appellant was conducted by her coworker and translated for her. When initially speaking to appellant to inform him of the safety plan that would be in place, the allegations against him were not specifically discussed though he seemed aware of what the allegations were. A safety plan was put in place where he was not allowed to see the children during the investigation. Appellant informed the CPS investigators that he believed that the allegations were lies being made up by L.J. There was never a formal interview with appellant to discuss the specific allegations, though they attempted to interview him "several times." Ultimately, CPS determined there was "reason to believe" for sexual abuse against J.P., which means they determined it was more likely than not that something happened. The determination was based on J.P.'s outcry and interview and her positive test for chlamydia, which CPS...