Ramirez v. State

JESUS RAMIREZ, Appellant, v. THE STATE OF TEXAS, Appellee.

No. 08-15-00090-CR

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS

February 28, 2017

Appeal from 168th District Court of El Paso County, Texas

(TC # 20130D05462)

OPINION

Appellant was indicted on two counts of indecency with a child, one by touching the child's genitals (Count I), and the other by touching the breasts (Count II). A jury convicted Appellant only on the second count. He brings this appeal complaining of the sufficiency of the evidence to support that conviction, the failure of the trial judge to declare a mistrial after a witness made an improper comment, and the alleged failure of his trial counsel to provide effective assistance. Finding no reversible error, we affirm.

FACTUAL SUMMARY

Appellant was indicted for touching the breasts and genitals of K.M., who was nine years old on the date of the alleged the crime.¹ Appellant was thirty years old at the time. The evidence at trial was sharply conflicting on some points, and undisputed on others.

On July 20, 2013, K.M.'s parents were having a party at their house. Family and friends were invited and Appellant had either come to the party with K.M.'s uncle or a family friend. K.M. had never met Appellant before.

K.M. testified that at one point that evening Appellant asked her to rub his head for good luck. He apparently asked her to do this several times. She later went to play with a basketball that she tossed at a target affixed to a swing set. Appellant joined her and started playing the same game as well. Appellant clarified that it was K.M. who invited him to play.

After playing for a while, K.M suggested they watch some television in her bedroom. Appellant followed her there. Conversely, Appellant maintained that sometime after they played basketball, he went back inside to the party and later went to the restroom. When he came out of the restroom, K.M. was at the door and asked him to help with the television in her bedroom.

Both K.M. and Appellant agreed that no one else was in the bedroom and that the lights in the room were off. K.M. testified that the TV was already on, while Appellant claimed he had to turn it on. The door to the room was always open and was nearby the common bathroom that the party guests were using.

The testimony sharply diverges at this point. K.M. testified that she and Appellant sat next to each other on the bed watching a children's show on the Disney Channel. Appellant put his arm around K.M. for several minutes. He then stood her up and put both his hands on her breasts (over her clothes) and squeezed, and then moved his hands in a circular pattern. He then turned her around and placed his hands on her rear end, also squeezing. He then slipped his hand inside her clothing and touched her genitals (her words, "pee-pee"). She testified he squeezed when he did so, but she also described his hand as going "in and out."

At that point, K.M. got up and said she needed to go the bathroom. Appellant said he would go with her. She got up and hurried to the bathroom which was across the hall from her bedroom. As she exited the room, she saw her father coming and was relieved. She went into the restroom and heard her father talking to Appellant. She exited the restroom after Appellant had left and told her father what happened.

Appellant's version differed. After turning on the television, he responded to some small talk K.M. was making, but he was mostly texting his girlfriend. When he rose to leave, K.M. quickly got up and went the door saying she needed to go the bathroom. He also recalled that K.M.'s father was near the door, and Appellant asked him if he wanted another beer. Appellant then went to the refrigerator and retrieved a beer for K.M.'s father. Appellant then went outside. He denied touching K.M. at all.

K.M.'s father testified, recalling going inside to use the restroom. He saw K.M. leave her bedroom with Appellant following her out. It was about 12:20 a.m. at the time. His daughter had a relieved look on her face when she saw her father. Appellant looked shocked. Appellant asked the father where the beers were. The father thought the situation strange and looked in the bedroom and saw no one else in there. The television was on, but the lights were off.

K.M.'s father waited for his daughter to exit the restroom. He asked her what was wrong and she responded that Appellant had "touched her nasty parts." He sent K.M. to her room then went to the party to confront Appellant. At first he told others to have Appellant leave. Appellant testified that he did not leave when asked because he did not know why the father was mad at him. The father then accused Appellant of molesting his daughter, and Appellant denied it. The father then had to be held back from attacking Appellant. By the time the police arrived, Appellant had left the party on foot. He lived about a mile away.

Police later located Appellant in a desert area about a mile from K.M.'s house. One of the officers testified that Appellant smelled of alcohol and appeared intoxicated. He admitted to having consumed about ten beers that night, but denied being intoxicated. The police transported Appellant to his home to obtain proper identification, and left him there, saying that a detective would be in touch with him. Detective Steve Smith testified that he left several messages with Appellant to contact him, but Appellant never responded. Appellant denied that anyone ever attempted to contact him and get his side of the story. The State called a DNA expert who testified that none of the samples taken in the sexual assault kit yielded any usable DNA samples, nor did she expect that they would. Appellant called his father, mother, girlfriend, and sister to testify in the guilt-innocence phase of the trial. None had any first-hand knowledge of the party or the incident.

The jury returned a verdict of not guilty on Count One (touching the genitals) but convicted Appellant on Count Two (touching the breasts). Following the punishment phase of the trial, Appellant was sentenced to four years' incarceration.

SUFFICIENCY OF THE EVIDENCE

Appellant's first issue challenges the sufficiency of the evidence to support his conviction. Our legal sufficiency standard is articulated in Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). Brooks v. State, 323 S.W.3d 893, 894-95 (Tex.Crim.App. 2010)(finding no meaningful distinction between the legal and factual sufficiency standards and applying Jackson v. Virginia as the only standard in Texas).

Under the Jackson standard, a reviewing court must consider all of the evidence in the light most favorable to the verdict to determine whether any rational fact-finder could have found each element of the offense beyond a reasonable doubt. Brooks, 323 S.W.3d at 894-95, citingJackson, 443 U.S. at 319, 99 S.Ct. at 2789. As the trier of fact, the jury is the sole judge as to the weight and credibility of evidence, and we must give deference to the jury's determinations. Brooks, 323 S.W.3d at 894-95. If the record contains conflicting inferences, we must presume the jury resolved such facts in favor of the verdict and defer to that resolution. Id. We consider both direct and circumstantial evidence and all reasonable inferences that may be drawn from the evidence. Hooper v. State, 214 S.W.3d 9, 13 (Tex.Crim.App. 2007). On appeal, we serve only to assure that the jury reached a rational verdict; we may not reevaluate the weight and credibility of the evidence; nor may we substitute our judgment for that of the fact finder. King v. State, 29 S.W.3d 556, 562 (Tex.Crim.App. 2000).

A person commits the offense of indecency with a child if he or she engages in sexual contact with a child who is younger than 17 years and not his or her spouse. See TEX.PENAL CODE ANN. § 21.11(a)(1)(West 2011). "Sexual Contact" is defined as "any touching by a person, including touching through clothing, of the anus, breast, or any part of the genitals of a child" "if committed with the intent to arouse or gratify the sexual desire of any person." Id. at § 21.11(c)(1). Under Count Two, the State had the burden to present evidence sufficient to show beyond a reasonable doubt that Appellant touched the breast of a child younger than 17 years with the intent to arouse or gratify his sexual desire.

Appellant does not identify which element of the offense that he challenges. The two paragraphs in his brief which specifically apply the law to the facts of this case contend: (1) there was no DNA evidence linking him to the crime; (2) "[t]here was only contradictory and cursory evidence presented by the State of Texas, which only was the accusation by K.M. and circumstantial evidence" from her father; and (3) that no statement was taken from Appellant prior to his arrest. Later in his brief, he also contends that because the jury did not convict himof Count I, they correspondingly could not convict him of Count II because the evidence was essentially the same as to each count. The balance of Appellant's analysis consists of reciting the facts of ten reported cases in which appellate courts reversed a conviction based on legally insufficient evidence. None of the cases involves a charge of indecency with a child.

Focusing on the elements of the offense, a rational jury could easily conclude that K.M. was under 17 years of age and not married to Appellant. Assuming that the jury favored her testimony over the conflicting account given by Appellant, as we must, that same rational jury could conclude that Appellant touched her breasts. K.M. testified that Appellant touched her breast (over her clothes), both squeezing and moving his hands in a circular fashion. The remaining element is Appellant's intent. The intent to arouse or gratify the sexual desire of the defendant can be inferred from his conduct, and all surrounding circumstances. McKenzie v. State, 617 S.W.2d 211,...