Roger Borrego v. State

COURT OF APPEALS COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS ROGER BORREGO,                                            ) ) No. 08-04-00273-CR Appellant, ) ) Appeal from the v. ) ) 248th Criminal District Court THE STATE OF TEXAS,                                     ) ) of Harris County, Texas Appellee. ) ) (TC# 964682) ) O P I N I O N Roger Borrego appeals his conviction of indecency with a child, enhanced by a prior felony conviction. A jury found Appellant guilty of and assessed his punishment at a $5,000 fine and imprisonment for a term of 75 years. We affirm. FACTUAL SUMMARY From 1999 until 2003, K.S. lived with her mother, P.S., and step-father, Tony Borrego. Appellant, who is Tony=s brother, sometimes lived with them. In January of 2003, P.S. had to leave K.S. with Tony and Appellant while she was in jail. Upon her release from jail in mid-January, P.S. took K.S. from the Borregos and went to a shelter. K.S. subsequently went to stay with her aunt Frances while P.S. went to a different shelter. During this same time period, P.S. resumed her relationship with Tony and she later began living on the streets. In March or April of 2003, eight-year-old K.S. made an outcry that Appellant, Tony Borrego, and her step-grandfather, Martin Borrego, had molested her.[1] K.S. told a forensic interviewer at the Children=s Assessment Center in Houston that Appellant had touched her Aprivate@ on top of her clothing while in a store and in the truck. He also made her touch his Aprivate.@ The molestation began when K.S. was six and had taken place on more than one occasion. At trial, K.S. testified that Appellant touched her Aprivate part@ with his hand. With the aid of an anatomically correct doll, K.S. indicated that by Aprivate part@ she meant genitals. Appellant moved his hand when he touched her and sometimes put his fingers inside of her private part causing her pain. Appellant also touched her Abottom.@ On September 12, 2003, Wade Head, a Houston police officer assigned to the Children=s Assessment Center, interviewed Appellant. Appellant admitted to Officer Head in the recorded interview that he had touched K.S.=s Afront@ both over and under the clothes. He also knew that Tony was abusing K.S. Consistent with K.S.=s allegations, Appellant admitted that he had touched K.S. while they were in the truck and while in a store. The jury found Appellant guilty of engaging in sexual contact with K.S. by touching her genitals with the intent to arouse and gratify his sexual desire. The jury also found that Appellant had previously been convicted of delivery of cocaine and assessed his punishment at a fine of $5,000 and imprisonment for a term of 75 years. RECORDED STATEMENT In Point of Error One, Appellant contends that his recorded statements were involuntary, and therefore, should not have been admitted into evidence. The trial court conducted a hearing on Appellant=s motion to suppress his statements prior to trial. The court excluded extraneous offenses mentioned during the taped interview but denied the suppression motion. When the State offered the taped interview into evidence, Appellant=s attorney replied that she had previously listened to the tape and had no objections to its admission. As a prerequisite to presenting a complaint for appellate review, the record must demonstrate that the complaint was made to the trial court by a timely request, objection, or motion, and the trial court ruled on the request, objection, or motion. Tex.R.App.P. 33.1(a)(1) and (2); Richardson v. State, 981 S.W.2d 453, 455 (Tex.App.‑-El Paso 1998, pet. ref=d). When a pretrial motion to suppress is denied, the accused need not object to the admission of the same evidence again at trial. Dean v. State, 749 S.W.2d 80, 83 (Tex.Crim.App. 1988); Traylor v. State, 855 S.W.2d 25, 26 (Tex.App.-‑El Paso 1993, no pet.). However, when the accused affirmatively asserts that he has Ano objection@ to the admission of the complained-of evidence, he waives any error in the admission of the evidence despite the pretrial ruling. Dean, 749 S.W.2d at 83; Traylor, 855 S.W.2d at 26. By stating that he had no objection to admission of the taped statement, Appellant waived his complaints. Point of Error One is overruled. SUFFICIENCY OF THE EVIDENCE In Points of Error Two through Five, Appellant challenges the legal and factual sufficiency of the evidence supporting his conviction. More specifically, in Points of Error Two and Three, Appellant contends that the complainant was not credible because there were no witnesses, no medical evidence, and P.S. did not believe her daughter. In Points of Error Four and Five, he asserts that the evidence is insufficient because it does not show Askin to skin@ contact. Standards of Review In reviewing the legal sufficiency of the evidence to support a criminal conviction, we must review all the evidence, both State and defense, in the light most favorable to the verdict to determine whether 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, 318‑19, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1979); Geesa v. State, 820 S.W.2d 154, 159 (Tex.Crim.App. 1991), overruled on other grounds, Paulson v. State, 28 S.W.3d 570 (Tex.Crim.App. 2000). This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic to ultimate facts. Jackson, 443 U.S. at 319, 99 S.Ct. at 2789, 61 L.Ed.2d at 573. We do not resolve any conflict of fact or assign credibility to the witnesses, as it was the function of the trier of fact to do so. See Adelman v. State, 828 S.W.2d 418, 421 (Tex.Crim.App. 1992); Matson v. State, 819 S.W.2d 839, 843 (Tex.Crim.App. 1991). Instead, our duty is only to determine if both the explicit and implicit findings of the trier of fact are rational by viewing all of the evidence admitted at trial in a light most favorable to the verdict. Adelman, 828 S.W.2d at 421-22. In so doing, any inconsistencies in the evidence are resolved in favor of the verdict. Matson, 819 S.W.2d at 843. Further, the standard of review is the same for both direct and circumstantial evidence cases. Geesa, 820 S .W.2d at 158. In reviewing factual sufficiency of the evidence to support a conviction, we are to view all the evidence in a neutral light, favoring neither party. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000); Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). The question to be answered is whether the jury was rationally justified in finding guilt beyond a reasonable doubt. See Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004). The evidence may be factually insufficient in two ways: (1) when considered by itself, evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt; and (2) there may be both evidence supporting the verdict and evidence contrary to the verdict. Id. at 484-85. Thus, weighing all the evidence under this balancing scale, the contrary evidence may be strong enough that the beyond‑a‑reasonable‑doubt standard could not have been met, so the guilty verdict should not stand. Id. at 485. This standard acknowledges that evidence of guilt can Apreponderate@ in favor of conviction but still be insufficient to prove the elements of the crime beyond a reasonable doubt. Id. Stated another way, evidence supporting guilt can Aoutweigh@ the contrary proof and still be factually insufficient under a beyond‑a‑reasonable‑doubt standard. Id. Elements of the Offense The State was required to prove beyond a reasonable doubt that Appellant engaged in sexual contact with K.S. by touching her genitals with intent to arouse and gratify his own sexual desire. Tex.Pen.Code Ann. ' 21.11(a)(Vernon 2003). Contrary to Appellant=s assertion that sexual contact requires Askin to skin@ contact in order to sustain an indecency with a child conviction, the Penal Code defines Asexual contact@ to mean: [T]he 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 . . . . Tex.Pen.Code Ann. ' 21.11(c)(1). Legal Sufficiency In reviewing the legal sufficiency of the evidence, we do not consider the credibility of the complainant as that was a matter for the jury to assess. Instead, we consider the evidence in the light most favorable to the verdict and determine whether there is legally sufficient evidence to support each element of the offense beyond a reasonable doubt. K.S. provided significant detail in her interview and testified consistently at trial that Appellant had touched her genitals with his hand and had inserted his finger in her vagina. This touching occurred both over and under her clothing. The testimony of a sexual abuse victim alone is sufficient to support a conviction. Garcia v. State, 563 S.W.2d 925, 928 (Tex.Crim.App. 1978). Appellant effectively corroborated K.S.=s allegations in his taped statement and even confirmed that the abuse had occurred both in the truck and in a store as reported by the complainant. Appellant told the interviewer that he had touched K.S. both over and under her clothes and he had rubbed her vagina. Taken in the light most favorable to the verdict, the evidence is legally sufficient to sustain Appellant=s conviction. Factual Sufficiency It was the jury=s task to weigh the evidence and evaluate the credibility of all the witnesses. There is no requirement that the State corroborate the child victim=s testimony with medical or physical evidence. Appellant=s own confession supported K.S.=s accusations against him and his brother. We find the evidence factually sufficient to prove that Appellant engaged in sexual contact with K.S. by touching her genitals. Points of Error Two through Five are overruled. We affirm the judgment of the trial court. August 18, 2005 DAVID WELLINGTON CHEW, Justice Before Barajas, C.J., McClure, and Chew, JJ. (Do Not Publish) [1] Criminal charges were also filed against Tony Borrego and his father, Martin Borrego. Tony Borrego entered a plea of guilty, but Martin Borrego died prior to his trial.