Radilla-Esquivel v. State, 03-14-00544-CR

Miguel Radilla-Esquivel, Appellant v. The State of Texas, Appellee

NO. 03-14-00544-CR

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

September 16, 2016

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 427TH JUDICIAL DISTRICT

NO. D-1-DC-13-301688, HONORABLE BOB PERKINS, JUDGE PRESIDING

MEMORANDUM OPINION

Appellant Miguel Radilla-Esquivel was charged by indictment with four counts of aggravated sexual assault of a child, three counts of indecency with a child by contact, and three counts of indecency with a child by exposure. See Tex. Penal Code §§ 21.11, 22.021. A jury found him guilty of two counts of aggravated sexual assault of a child and all six counts of indecency with a child. After the jury returned the verdicts, the State waived the three counts of indecency with a child by exposure. The jury then assessed punishment at fifty years' imprisonment for each of the aggravated-sexual-assault convictions and twenty years' imprisonment for each of the convictions for indecency with a child by contact. See id. §§ 12.32, 12.33, 12.34, 21.11(d), 22.021(e). The trial court imposed the sentences and ordered that they run concurrently.

In thirteen issues on appeal, appellant raises sufficiency-of-the-evidence and double-jeopardy claims and challenges the trial court's rulings regarding the jury charge and jury argument. We will affirm the trial court's judgments of conviction.

BACKGROUND

The evidence shows that appellant lived with A.G. and her family at an apartment in Austin for about two years in 2006 and 2007.¹ A.G.'s father testified that his sister had been married to appellant's brother and that he became "good friends" with appellant and let him rent a room in the apartment. He testified that he trusted appellant at the time and sometimes asked him to babysit A.G. and her siblings. A.G. was approximately six and seven years old during that time frame.

In May 2013, A.G. made an outcry of sexual abuse to her father's girlfriend. She stated that appellant "put it in her" when he lived with her and her family several years earlier. Based on A.G.'s outcry, her father's girlfriend called the police, and A.G. was interviewed by a detective and a forensic interviewer and examined by a doctor. A.G. told the forensic interviewer that appellant penetrated her sexual organ and anus on more than one occasion. The detective interrogated appellant, who ultimately made certain admissions about physical contact he had with A.G. when he lived with her and her family.

Appellant was tried by a jury and convicted of two counts of aggravated sexual assault of a child and six counts of indecency with a child. After the State waived the three countsof indecency with a child by exposure, the jury assessed punishment on the remaining convictions. The trial court then imposed sentence, and this appeal followed.

DISCUSSION

Appellant raises thirteen issues on appeal, contending that there is insufficient evidence to support his convictions for indecency with a child by contact, that his convictions for indecency with a child by contact violate the constitutional prohibition on double jeopardy, that the trial court committed error in the jury charges during the guilt-innocence and punishment phases of trial, and that the trial court erred in sustaining the State's objections to certain arguments made by defense counsel during closing arguments. We will address all of the issues below.

Sufficiency of the Evidence

In three issues, appellant asserts that the evidence is insufficient to support each of his three convictions for indecency with a child by contact. When reviewing the sufficiency of the evidence to support a conviction, we consider all the evidence in the light most favorable to the verdict to determine whether, based on that evidence and the reasonable inferences that can be drawn from it, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013). In our analysis, we assume that the trier of fact resolved conflicts in the testimony, weighed the evidence, and drew reasonable inferences in a manner that supports the verdict. Jackson, 443 U.S. at 319; Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010). We consider only whether the jury reached a rational decision. See Isassi, 330 S.W.3d at 638 ("Our roleon appeal is restricted to guarding against the rare occurrence when a factfinder does not act rationally." (quoting Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009))).

Legal sufficiency of the evidence is measured by the elements of the offense as defined by a hypothetically correct jury charge. See Thomas v. State, 444 S.W.3d 4, 8 (Tex. Crim. App. 2014) (citing Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)). "A hypothetically correct jury 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. (quoting Malik, 953 S.W.2d at 240). The law as authorized by the indictment means the statutory elements of the charged offense as modified by the factual details and legal theories contained in the indictment. See Daugherty v. State, 387 S.W.3d 654, 665 (Tex. Crim. App. 2013).

The statute under which appellant was convicted on three counts of indecency with a child by contact states the following, in relevant part:

(a) A person commits an offense if, with a child younger than 17 years of age, whether the child is of the same or opposite sex, the person:

(1) engages in sexual contact with the child or causes the child to engage in sexual contact.

. . . .

(c) In this section, "sexual contact" means the following acts, if committed with the intent to arouse or gratify the sexual desire of any person:

(1) any touching by a person, including touching through clothing, of the anus, breast, or any part of the genitals of a child; or(2) any touching of any part of the body of a child, including touching through clothing, with the anus, breast, or any part of the genitals of a person.

Tex. Penal Code § 21.11.

The indictment in this case charged appellant with three counts of indecency with a child by contact, alleging that appellant intentionally and knowingly, with the intent to arouse and gratify his sexual desire, engaged in sexual contact with A.G. by (1) touching her genitals, (2) touching her anus, and (3) causing A.G. to touch his genitals.

A review of the evidence admitted at trial begins with A.G.'s father's former girlfriend, who was the first witness to testify about A.G.'s outcry of sexual abuse. She testified that she suspected A.G. had been abused based on certain behaviors exhibited by A.G. and because A.G. "got quiet and sad and didn't want to talk about it" when the former girlfriend told A.G. and her brothers that "nobody should ever touch them." The former girlfriend testified that when she raised the subject with A.G. again after the initial conversation, A.G. started shaking and crying and told her that appellant had "put it in her." She testified that A.G. continued crying for at least an hour after she initially spoke of the abuse.

The forensic interviewer who interviewed A.G. after A.G.'s outcry of abuse also testified about A.G.'s accounts of sexual abuse in the following exchanges:

Prosecutor: And so did she tell you what happened first?

Interviewer: What happened first during [the first] incident?

Prosecutor: Yes.

Interviewer: First she said that they were in the living room playing and then he took her by the hand and led her to his bedroom.

Prosecutor: And then once he was in the bedroom, what did he do?

Interviewer: Once in the bedroom, he took off his clothes and took off her shorts and underwear, and that's when he put his thing inside her middle part and butt.

Prosecutor: Okay. Did she explain to you where she was when this actually happened to her?

Interviewer: She said she was lying down on the bed.

Prosecutor: And did she tell you how?

Interviewer: She said when he put his middle—his private thing, I'm sorry, in her middle part that she was on her back, and that when he put his private thing in her butt that she was on her stomach laying down on the bed.

Prosecutor: Did she tell you which happened first, her middle part or her butt?

Interviewer: I believe she said that her butt happened first.

Prosecutor: And so did she explain to you how it is that she got, I guess, from her back to her stomach?

Interviewer: She said that [appellant] moved her from her hips.

Prosecutor: Did she describe to you how she felt at the time?

Interviewer: What she said is that she felt like she couldn't move because it was hurting so much.

Prosecutor: And you explained that she told you this happened more than once?

Interviewer: Yes.

Prosecutor: And so the incident where she was telling you, when did she say that happened?

Interviewer: The incident she told me about in detail, she said, was the first time, and she said it happened when she was six years old, I believe, and that it was before Christmastime.

Prosecutor: Six years old before Christmastime?

Interviewer: Yes.

Prosecutor: And you said that was the first time?

Interviewer: Correct.

Prosecutor: And did you ask her to, I guess, tell you about the first time?

Interviewer: Well, once she told me that there were—that there was more than one time, I asked her to go back and tell me about the first time. Once she told me all the details of the first time, I asked her to tell me about some of the other times as well.

Prosecutor: Okay. And what did she tell you about the other times?

Interviewer: What she told me was that the last time happened when she was six years old after Christmas and before spring break. Really all she told me about the other times is that they were the same as the first, that

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