Hector Maldonado v. State

COURT OF APPEALS COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS HECTOR MALDONADO,                                  ) ) No. 08-02-00469-CR Appellant, ) ) Appeal from the v. ) ) 109th District Court THE STATE OF TEXAS,                                     ) ) of Andrews County, Texas Appellee. ) ) (TC# 4025) ) O P I N I O N Hector Maldonado appeals his conviction for two counts of the offense of indecency with a child by contact. The jury found the Appellant guilty of both counts and assessed a punishment of 5 years on Count One and 10 years on Count Two. We affirm. On or about December 31, 1996, Appellant and his then nine-year-old daughter, K.M., were home watching television when Appellant molested her. They were laying on the same couch when Appellant reached under the covers and touched his daughter=s vagina over her clothes. K.M. felt uncomfortable and immediately went to inform her mother about the incident. Maria Maldonado, K.M.=s mother, confronted Appellant about the touching which he admitted. Appellant=s excuse was that he was drunk at the time and had confused his daughter for his wife. The next incident happened in May, 2001. Appellant had been drinking when he got in a fight with his wife over whether K.M. should attend prom. Afterwards, Appellant asked K.M. to drive him to his family=s house in Levelland. K.M. did so, against her mother=s wishes, because she was angry at her mother for not letting her go to the prom. They stayed the night at his family=s house where they slept together in a hide-a-bed. Early in the morning while they were still laying in bed, Appellant started touching K.M.=s vagina over her clothes. Later in the morning, K.M. moved to a bedroom in order to get some more sleep and Appellant followed her. They were laying down when Appellant used his hands to open K.M=s legs to touch her vagina; however, this time he touched her under her clothes. While this was happening, Appellant asked her if it felt good. After a while, he stopped and got up. K.M. got up as well and got dressed so that they could leave. While they were driving back home, Appellant touched her again under her clothes. The next incident happened that same year on K.M.=s birthday on August 4. The family had gone to Asherton for K.M.=s grandfather=s funeral. K.M. was sleeping on the floor when Appellant got up and offered to let her sleep on the couch where he was laying. She accepted, thinking that Appellant was going to sleep somewhere else; however, he laid back on the same couch. While laying down, he started touching her vagina under her clothes and putting his fingers inside of her. He also grabbed her hand and put it around his penis. After a while, he got up to go to the restroom and when he came back, he laid down on a recliner. The last incident occurred that same year around September or October. Appellant had taken down K.M.=s bedroom door at his wife=s request because she felt that K.M. spent too much time in there. One night, Appellant went to K.M.=s room where he put his hands under the covers and asked several times if he could touch her. K.M. said no and told him that she needed to get some sleep. He asked why she was refusing him when it appeared that it had not bothered her before. Afterwards, he began touching her vagina; however, he stopped when he heard somebody moving around in the house. He got up and left only to come back after a while to ask her again. She refused him again and pushed him away; he left her bedroom. In November 2001, K.M. and her mother made a report with Children Protective Services in which K.M. stated that Appellant had touched her upper thigh. Appellant was arrested on March 7, 2002, and was subsequently charged with two counts of the offense of indecency with a child, allegedly committed in Andrews County, Texas on or about November 7, 2001 and on or about December 31, 1996. Appellant plead not guilty to both counts and the case was submitted to a jury. The jury found Appellant guilty on both counts and assessed punishment at 5 years for Count One and 10 years for Count Two. The judge accumulated the sentences to run consecutively. See Tex.Pen.Code Ann. ' 3.03 (Vernon 2003). The Appellant=s only issue contends that the State failed to show by a preponderance of the evidence that the offenses were committed in Andrews County, and therefore failed to prove that venue existed in Andrews County. Standard of Review For assault cases, venue lies in the county in which the offense was committed. Tex.Code Crim.Proc.Ann. art. 13.18 (Vernon 1977). It is presumed that venue is proven in the trial court unless the record affirmatively shows otherwise or venue is made an issue at trial. See Tex.R.App.P. 44.2(c)(1). A plea of not guilty puts in issue the allegations of venue, and the State must prove such allegations or a conviction will not be warranted. Tex.Code Crim.Proc.Ann. art. 13.17; see Black v. State, 645 S.W.2d 789, 790 (Tex.Crim.App. 1983). When venue is made an issue in the trial court, failure to prove venue in the county of prosecution constitutes reversible error. Black, 645 S.W.2d at 790. Generally, in criminal cases venue need only be proved by a preponderance of the evidence. Black, 645 S.W.2d at 790. Proof of venue in criminal case may be demonstrated by either direct or circumstantial evidence. Id. For purposes of determining venue in a criminal case, the trier of fact may make reasonable inferences from the evidence. Braddy v. State, 908 S.W.2d 465, 467 (Tex.App.BDallas 1995, no pet.); see Lozano v. State, 958 S.W.2d 925, 929 (Tex.App.--El Paso 1997, no pet.). The evidence is sufficient to establish venue if Afrom [that] evidence the jury may reasonably conclude that the offense was committed in the county alleged.@ Rippee v. State, 384 S.W.2d 717, 718 (Tex.Crim.App. 1964). The appellate court maintains this deference to the jury=s findings, by finding fault only when A>the verdict is against the great weight of the evidence presented at trial so as to be clearly wrong and unjust.=@ Jones v. State, 944 S.W.2d 642, 648 (Tex.Crim.App. 1996). Appellant argues that venue as to the offenses was never established by the evidence offered at trial. He contends that the testimony of City of Andrews Police Officer Captain Michael E. Angel, in which he read aloud a written portion of a statement given by the Appellant, only revealed the street where Appellant lived on December 31, 1996 and not the county. Appellant argues that under the authority of Black, the State failed to prove that Andrews County was the proper venue of prosecution for the offense that took place on December 31, 1996. See Black, 645 S.W.2d at 790. However, this case is not similar to Black, because in that case, the only evidence offered to prove venue was the testimony of two police officers that stated that they worked for Tyler Police Department; and that A[Defendant] was >in the twenty-one hundred block of North Alfred that day.=@ See Black, 645 S.W.2d at 791. But in the case at hand, there is other testimony that shows that the offenses took place in Andrews County. Next, Appellant contends that K.M.=s testimony failed to prove that the sexual offenses took place in Andrews County. At trial, the complainant first mistakenly testified that on December 31, 1996, she lived in Asherton. However, this was later clarified when she testified on cross-examination that she had lived in Andrews on December 31, 1996. Appellant asserts that venue as to the second offense was never established because of the lack of reference to a specific date. He argues that K.M.=s testimony, which refers to Aanother incident last year about the prom,@ is confusing and does not establish a timeframe to help identify location in relation to a sexual offense in Andrews County. This argument fails because there is sufficient direct and circumstantial evidence to determine that Alast year@ refers to 2001. See Black, 645 S.W.2d at 790. The record shows that K.M. was asked if the last incident took place Alast year@ in order to clarify her statement of Athat same year@ in her testimony when referring to the last three offenses. The testimony was given in 2002; therefore, a jury could reasonably infer that Alast year@ refers to 2001. See Rippee, 384 S.W.2d at 718. In addition, the record shows that K.M.=s testimony determined that she was Aat the house in Andrews@ when she was referring to the last incident that took place in Andrews. As the trier of fact on the issue of venue, the jury may make reasonable inferences from the evidence. Couchman v. State, 3 S.W.3d 155, 161 (Tex.App.--Fort Worth 1999, pet. ref=d). In this case, no one directly testified that the offense took place in Andrews County, Texas, but sufficient circumstantial evidence was offered for the jury to reasonably infer that the offense occurred there. See id.; Lozano, 958 S.W.2d at 929. K.M. testified that the two incidents occurred in Andrews. K.M.=s mother confirmed that they were living in Andrews when she had Appellant remove the door from K.M.=s room, which is consistent with K.M.=s testimony regarding the second offense. This Court may take judicial notice of the fact that Andrews is a city within Andrews County, Texas. Black, 645 S.W.2d at 793; Moore v. State, 209 S.W.2d 192, 194 (Tex.Crim.App. 1948)(Opin. on reh=g); Sixta v. State, 875 S.W.2d 17, 18 (Tex.App.--Houston [1st Dist.] 1994, pet. ref=d). Since the jury could have reasonably inferred that the charged offenses occurred in Andrews County, as alleged in the indictment, we conclude the State proved venue by a preponderance of the evidence. Appellant=s sole issue is overruled. We affirm the trial court=s judgment. June 25, 2004 DAVID WELLINGTON CHEW, Justice Before Panel No. 2 Barajas, C.J., McClure, and Chew, JJ. (Do Not Publish)