Ramos v. State

JOSE ISRAEL RAMOS, Appellant, v. THE STATE OF TEXAS, Appellee.

NUMBER 13-18-00043-CR

COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG

May 23, 2019

On appeal from the 54th District Court of McLennan County, Texas.

MEMORANDUM OPINION

Before Chief Justice Contreras and Justices Longoria and Perkes

Memorandum Opinion by Chief Justice Contreras

Appellant Jose Israel Ramos appeals his convictions for four counts of indecency with a child by contact, a second-degree felony, and one count of continuous sexual assault of a child, a first-degree felony. See TEX. PENAL CODE ANN. §§ 21.02, 21.11. By three issues, Ramos argues that (1) the trial court erred when it admitted the report of Ann Sims, M.D.; (2) the trial court erred when it admitted Dr. Sims's opinion; and (3) the evidence was factually insufficient. We affirm.

I. BACKGROUND¹

Appellant and his wife, F.R., adopted V.R. when she was two or three years old.² They later divorced but continued to live together. When V.R. was thirteen years old, she made an outcry of sexual abuse to her maternal grandmother, R.G. V.R. alleged that her father, appellant, had been sexually abusing her since she was around ten years old.

After V.R.'s outcry, appellant and F.R. took V.R. to Hillcrest Hospital in Waco, Texas, and the hospital contacted the Waco Police Department. Shortly thereafter, V.R. gave a forensic interview at the Children's Advocacy Center. Investigator Kim Clark determined that a medical examination of V.R. was needed after watching the forensic interview. Investigator Clark testified that the purpose of the medical exam was "so that [V.R.] could get checked and know that her body was okay [and to check] for sexually transmitted diseases and the possibility of any physical findings." Investigator Clark requested the medical exam be performed by Dr. Sims, a physician with the Child Advocacy Center.

On May 28, 2013, about a week after making her outcry, V.R. was examined by Dr. Sims. During the examination, V.R. disclosed to Dr. Sims that appellant began to sexually abuse her when she was ten or eleven years old. V.R. provided Dr. Sims with details of the abuse and informed her that the individual responsible for the abuse was appellant. Appellant objected to Dr. Sims's report from the examination because it wasbased on hearsay and because its probative value was outweighed by a risk of unfair prejudice. Appellant objected to Dr. Sims's testimony because it was "not helpful" to the jury. The trial court overruled these objections.

Dr. Sims explained that the historical statements given by V.R. during the medical examination were part of the basis for her report. Dr. Sims further explained that the referral is made to check for any concerns regarding a child's health and that, in order to make a determination of diagnosis and treatment, she needs to have details regarding the child's history of sexual abuse. Her report included details of the alleged abuse V.R. suffered and the identity of the abuser (appellant). Dr. Sims testified that the examination had been requested by law enforcement, not V.R., but that she had explained the examination and its purpose to V.R. and her mother. Dr. Sims opined V.R. knew the difference between the truth and a lie.

V.R. also testified. She stated that she had temporarily recanted her story prior to trial because "I mean, he's my dad." V.R. explained she did not want to testify about the abuse in court and that doing so was very difficult for her. However, V.R. confirmed that appellant had committed the sexual abuse alleged by the State.

Appellant took the stand and denied all of the accusations. He asserted that V.R. had been a "disturbed" child and that she had fabricated the allegations because he forced her to break up with her boyfriend and because she was afraid of getting in trouble for an incident that had occurred at school.

The jury found appellant guilty and assessed punishment at forty-two years' imprisonment for the for continuous sexual abuse of a child count and ten years for each of the four counts for indecency with a child by contact, with the sentences to run concurrently. This appeal followed.

II. DISCUSSION

A. Factual Sufficiency

By his third issue, which we address first, appellant argues that the evidence is factually insufficient to support his conviction. Appellant does not argue that the evidence is legally insufficient and concedes that the Texas Court of Criminal Appeals has abolished factual-sufficiency review. See Brooks v. State, 323 S.W.3d 893, 902, 912 (Tex. Crim. App. 2010) (plurality op.). Nevertheless, appellant encourages us to employ a factual sufficiency review only and contends that Brooks should be reconsidered in light of the Texas Constitution and the Texas Code of Criminal Procedure.

Appellant cites case law that is critical of the court of criminal appeals' decision in Brooks, see, e.g., Johnson v. State, 419 S.W.3d 665, 671 n.2 (Tex. App.—Houston [1st Dist.] 2013, pet. ref'd), and he points out that the Texas Constitution confers appellate jurisdiction on the courts of appeals and provides that these courts "shall be conclusive on all questions of fact brought before them on appeal." TEX. CONST. art V, § 6. Appellant also points to article 44.25 of the Texas Code of Criminal Procedure, which states that intermediate appellate courts "may reverse the judgment in a criminal action, as well upon the law as upon the facts." TEX. CODE CRIM. PROC. ANN. art. 44.25. We are not persuaded.

The court of criminal appeals' decision in Brooks is still binding upon this Court until the court of criminal appeals provides otherwise. The Brooks decision is binding precedent, and we are compelled to comply with its dictate. State v. Stevenson, 993 S.W.3d 857, 867 (Tex. App.—Fort Worth 1999, no pet.); see Villareal v. State, 504 S.W.3d 494, 509 (Tex. App.—Corpus Christi-Edinburg 2016, pet. ref'd) ("[A]s an intermediateappellate court, we must follow the binding precedent of the court of criminal appeals."). Accordingly, we reject appellant's request to review the evidence for factual sufficiency.

Nevertheless, because courts of this state no longer conduct factual sufficiency analyses in criminal cases, we construe appellant's contention as a legal sufficiency challenge. See Brooks, 323 S.W.3d at 912; Ervin v. State, 331 S.W.3d 49, 54 (Tex. App.—Houston [1st Dist.] 2011, pet. ref'd); Polk v. State, 337 S.W.3d 286, 288-89 (Tex. App.—Eastland 2010, pet. ref'd).

To determine whether the evidence is legally sufficient, we consider all of the evidence in the light most favorable to the verdict and determine whether a rational fact finder could have found the essential elements of the crime beyond a reasonable doubt based on the evidence and reasonable inferences from that evidence. Whatley v. State, 445 S.W.3d 159, 166 (Tex. Crim. App. 2014); Brooks, 323 S.W.3d at 898-99. Because the jury is the sole judge of the credibility of the witnesses and of the weight to be given to their testimony, any conflicts or inconsistencies in the evidence are resolved in favor of the verdict. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim App. 2000) (en banc).

We measure the legal sufficiency of the evidence by the elements of the offense as defined by a hypothetically correct jury charge. Coleman v. State, 131 S.W.3d 303, 307 (Tex. App.—Corpus Christi-Edinburg 2004, pet. ref'd) (citing Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997) (en banc)). A hypothetically correct jury charge lists all elements of the offense, is consistent with the indictment, and does not unnecessarily increase the prosecution's burden of proof. Villareal v. State, 286 S.W.3d 321, 327 (Tex. Crim. App. 2009).

A hypothetically correct jury charge would state that a person commits the offense of indecency with a child by contact if the person, with a child under the age of seventeen, engages in sexual contact with the child or causes a child to engage in sexual contact. See TEX. PENAL CODE ANN. § 21.11(a)(1). "Sexual contact" includes any touching by a person, including touching through clothing, of the anus, breast, or any part of the genitals of a child; or any touching of any part of the body of a child with the anus, breast, or any part of the genitals of a person provided said touching is done with an intent to arouse or gratify the sexual desire of any person. Id. § 21.11(c).

Here, the State alleged and the jury found that appellant engaged in sexual contact with V.R. by: touching V.R.'s breast with his hand in 2011; touching V.R.'s breast with his mouth in 2011; touching V.R.'s breast with his hand in 2012; and touching V.R.'s breast with his mouth in 2012. At trial, V.R. testified that appellant had touched her breasts with his mouth and hand numerous times from when she was ten years old until she was thirteen. A jury may convict on the testimony of a child victim alone. TEX. CODE CRIM. PROC. ANN. art. 38.07; Ryder v. State, 514 S.W.3d 391, 396 (Tex. App.—Amarillo 2017, pet. ref'd); Soto v. State, 267 S.W.3d 327, 332 (Tex. App.—Corpus Christi-Edinburg 2008, no pet.). Thus, looking at all of the evidence in the light most favorable to the verdict, we conclude there was evidence from which a rational fact finder could have found beyond a reasonable doubt that appellant had committed each of the four counts of indecency with a child by contact. See Soto, 267 S.W.3d at 333-34.

As to continuous sexual abuse of a child, a hypothetically correct jury charge would state that a person commits the offense if: (1) during a period that is thirty or more days in duration, the person commits two or more acts of sexual abuse, regardless of whether the acts of sexual abuse are committed against one or more victims; and (2) at the timeof the commission of each of the acts of sexual abuse, the actor is seventeen years of age or older and the victim is a child younger than fourteen years of age. Hinojosa v. State, 555 S.W.3d 262,...