Alfredo Salinas v. State

NUMBER 13-99-226-CR COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI ____________________________________________________________________ ALFREDO SALINAS, SR., Appellant, v. THE STATE OF TEXAS, Appellee. ____________________________________________________________________ On appeal from the 105th District Court of Kleberg County, Texas. ____________________________________________________________________ O P I N I O N Before Justices Hinojosa, Chavez, and Rodriguez Opinion by Justice Hinojosa A jury found appellant, Alfredo Salinas, Sr., guilty of one count of aggravated sexual assault of a child. The victim was his five-year-old daughter. Appellant pleaded "true" to a repeat offender enhancement paragraph,(1) and the jury assessed appellant's punishment at 40 years imprisonment. Appellant presents two issues for our review: (1) that the evidence is insufficient to prove the allegations of penetration and that the victim was not his spouse and (2) that his 40-year sentence amounts to cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments to the federal constitution. We affirm. A. Sufficiency of the Evidence By his first issue, appellant contends the evidence is insufficient to prove the allegations of penetration and that the victim was not his spouse. Appellant has not specified whether he is complaining of legal or factual insufficiency of the evidence. Because he has prayed for a reversal of his conviction and a dismissal of the case against him, we will treat this issue as a challenge to the legal sufficiency of the evidence. When reviewing the legal sufficiency of the evidence, the appellate court shall look at all the evidence 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, 319 (1979); Johnson v. State, No. 1915-98, 2000 Tex. Crim. App. LEXIS 12, at *14-*15 (Tex. Crim. App. Feb. 9, 2000); Patrick v. State, 906 S.W.2d 481, 486 (Tex. Crim. App. 1995). This standard is applied to both direct and circumstantial cases. Earhart v. State, 823 S.W.2d 607, 616 (Tex. Crim. App. 1991); Sutherlin v. State, 682 S.W.2d 546, 548-49 (Tex. Crim. App. 1984); Rosillo v. State, 953 S.W.2d 808, 814 (Tex. App.--Corpus Christi 1997, pet. ref'd). Sufficiency of the evidence is measured by the hypothetically correct jury charge, which accurately sets out the law, is authorized by the indictment, and does not unnecessarily increase the State's burden of proof. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997); Cano v. State, 3 S.W.2d 99, 105 (Tex. App.--Corpus Christi 1999, pet. ref'd). The jury, as the sole judge of the credibility of the witnesses and the weight to be given their testimony, is free to accept or reject all or any part of the testimony of any witness. Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1981); Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986), cert. denied, 488 U.S. 872 (1988). Appellant was indicted for the offense of aggravated sexual assault of a child. The indictment charged that appellant: on or about June 11, 1998, in Kleberg County, Texas, did then and there by inserting his sexual organ intentionally and knowingly cause the penetration of the sexual organ of [J.A.S.], a female child younger than 14 years of age and not the spouse of the [appellant].(2) To prove a case of aggravated sexual assault of a child, the State must show that the defendant: (1) intentionally or knowingly (2) caused the penetration by any means (3) of the female sexual organ (4) of a child (5) younger than 14 years of age. Tex. Pen. Code Ann. § 22.021(a) (Vernon 1994 & Vernon Supp. 2000). A child is defined as a person younger than 17 years of age who is not the spouse of the actor. Tex. Pen Code Ann. § 22.011 (c)(1) (Vernon 1994 & Vernon Supp. 2000). 1. Evidence that Victim was not Appellant's Spouse The State is required to prove that the victim is not the defendant's spouse. However, direct evidence that the victim was not the spouse of the defendant is not required; it may be proved by circumstantial evidence. Martin v. State, 819 S.W.2d 552, 556 (Tex. App.--San Antonio 1991, no pet.)(evidence that victim was six to nine years of age when offenses occurred was sufficient evidence that she was not defendant's spouse); Meyers v. State, 737 S.W.2d 6, 8-9 (Tex. App.--Corpus Christi 1987, no pet.)(evidence sufficient to support inference that child victim was not defendant's spouse). In the instant case, the evidence established the victim was five years of age when the sexual assault occurred; furthermore, appellant himself testified that he was the father of J.A.S. Therefore, it is legally impossible that J.A.S. could be appellant's spouse. See Tex. Fam. Code Ann. § 6.201(1) (Vernon 1998) (a marriage between parent and child is void). We hold the evidence is legally sufficient for a rational finder of fact to conclude J.A.S. was not appellant's spouse. This sub-issue is overruled. 2. Evidence of Penetration Although the child victim broke down and began to cry on the stand before the prosecutor was able to elicit anything more from her than her father, Fred, "did something" to her, there was other evidence admitted to show appellant penetrated the victim's vagina with his penis. The victim made her initial outcry to Nellie Flores, the wife of appellant's nephew, who testified that she saw J.A.S. french-kissing her seven-year-old brother in the swimming pool. While questioning J.A.S. about this inappropriate behavior, Mrs. Flores asked her: if anybody was doing anything to her like that. You know, like anything that would make her feel bad, like touching her. J.A.S. began to cry and replied that Fred would "suck her down there" and pointed to her private parts. Mrs. Flores further testified that J.A.S. always referred to her father as "Fred." The victim's brother testified that he had seen appellant do "something bad" to his sister: (1) touching her in their home in Riviera; (2) that bad touching is touching in the privates; and (3) that it is wrong for a father to touch his kids like that. Sonja Eddleman, director of the Sexual Assault Nurse Examiner's Program at Driscoll Children's Hospital, testified concerning the sexual assault examination performed upon the victim, which included an examination with a colposcope, an instrument similar to a microscope that allows a detailed examination of the genital area. It magnifies the area up to thirty times without touching the victim. The colposcope exam revealed two tears in the victim's hymen: an oozing tear in the 11:00 o'clock position, and a well-healed scar at the 6:00 o'clock position. It takes at least 72 hours, or three days, for such an injury to heal. The more recent injury could be consistent with a child touching herself; the older wound, however, was consistent with penetration. J.A.S.'s medical records from the exam, which were admitted into evidence, include her statement to the nurse examiner: When my mom's asleep, my dad, Fred, puts his private in my butt & in my private (indicating vaginal area by pointing). His private has hair & its brown & pee comes out. He kisses me on my chick. I'm scared cause my mom said not to tell or she would spank me. We hold the evidence is legally sufficient for a rational trier of fact to conclude appellant penetrated the victim's vagina with his penis. We overrule this sub-issue. Viewing the evidence in the light most favorable to the verdict, we hold the evidence is legally sufficient to support appellant's conviction. Appellant's first issue is overruled. B. Punishment By his second issue, appellant contends the 40-year sentence imposed on him by the jury violates the Eighth Amendment to the federal constitution, which was made applicable to state criminal prosecutions by the Fourteenth Amendment, because the length of the sentence is disproportionate to the offense. Punishment falling within the applicable range prescribed by the legislature is not excessive, cruel or unusual. Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984); Harris v. State, 656 S.W.2d 481, 486 (Tex. Crim. App. 1983); Morales v. State, 897 S.W.2d 424, 427 (Tex. App.--Corpus Christi 1995, pet. ref'd). Aggravated sexual assault of a child is a first-degree felony. Tex. Pen. Code Ann. § 22.021(e)(Vernon 1994 & Vernon Supp. 2000). If it is shown at the trial of a first degree felony that the defendant has been once before convicted of a felony, on conviction he shall be punished by imprisonment for life or a term of not more than 99 years or less than fifteen years. Tex. Pen. Code Ann. § 12.42(c)(1) (Vernon 1977). Therefore, appellant's sentence was well within the permissible range for a repeat offender convicted of aggravated sexual assault of a child. Appellant argues, however, that the sentence is disproportionate to the offense committed, and is, thus, prohibited by the Eighth Amendment: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted." U.S. Const. amend. VIII. Appellant urges us to apply the three-prong test for proportionality set forth in Solem v. Helm, 463 U.S. 277, 292 (1983): The proportionality of a sentence should be analyzed by looking at: (1) the gravity of the offense and the harshness of the penalty, (2) the sentences imposed on other criminals in the same jurisdiction, and (3) the sentences imposed for commission of the same crime in other jurisdictions. Id; see Francis v. State, 877 S.W.2d 441, 444 (Tex. App.--Austin 1994, pet. ref'd) (assuming the Texas Constitution requires proportionality and applying the Solem test). Appellant urges his sentence is disproportionate under the first prong. Appellant acknowledges, however, that the Solem test was re-examined by the Supreme Court in Harmelin v. Michigan, 501 U.S. 957 (1991), and that the court held that punishment will be grossly disproportionate to a crime only when an objective comparison of the gravity of the offense against the severity of the sentence reveals the sentence to be extreme. Id. at 994-96. Justice Scalia, joined by Chief Justice Rehnquist, wrote in a plurality opinion that a mandatory life sentence without possibility of parole (for, in Harmelin, possession of more than 650 grams of cocaine) does not constitute cruel and unusual punishment under the Eighth Amendment. Those two justices believe the Eighth Amendment contains no guarantee of proportionality. Justices Kennedy, O'Connor and Souter concurred in the result, but believe Solem is correct to the extent that the Eighth Amendment prohibits "grossly disproportionate" sentences. Id. at 1001. It is unclear the extent to which the Solem disproportionality test survives after the Harmelin decision. See Sullivan v. State, 975 S.W.2d 755, 757 (Tex. App.--Corpus Christi 1998, no pet.). The Fifth Circuit has analyzed Harmelin and concluded: we will initially make a threshold comparison of the gravity of [the appellant's offense] against the severity of his sentence. Only if we infer that the sentence is grossly disproportionate to the offense will we then consider the remaining factors of the Solem test and compare the sentence received to (1) sentences for similar crimes in the same jurisdiction and (2) sentences for the same crime in other jurisdictions. McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir.), cert. denied, 506 U.S. 849 (1992). At least four Texas courts of appeals have applied the McGruder test in addressing claims of disproportionate sentences. See Dunn v. State, 997 S.W.2d 885, 892 (Tex. App.--Waco 1999, pet. ref'd); Mathews v. State, 918 S.W.2d 666, 669 (Tex. App.--Beaumont 1996, pet. ref'd); Puga v. State, 916 S.W.2d 547, 549-50 (Tex. App.--San Antonio 1996, no pet.); Lackey v. State, 881 S.W.2d 418, 421 (Tex. App.--Dallas 1994, pet. ref'd). This Court has not explicitly decided whether to follow the McGruder test or to retain the old Solem test in cases raising the issue of disproportionality of the sentence imposed. However, regardless which test is utilized, there is no evidence in the record before this Court as to the sentences imposed in Texas and other jurisdictions for the commission of similar crimes. Therefore, we are unable to make a comparative evaluation. See Sullivan, 975 S.W.2d at 757; Simmons v. State, 944 S.W.2d 11, 15 (Tex. App.--Tyler 1996, no pet.). We, therefore, overrule appellant's second issue. The judgment of the trial court is affirmed. FEDERICO G. HINOJOSA Justice Do not publish. Tex. R. App. P. 47.3. Opinion delivered and filed this the 31st day of August, 2000. 1. The prior offense was a federal felony conviction for conspiracy to transport undocumented persons. 2. Appellant was also charged with a second count of aggravated sexual assault of a child by intentionally and knowingly causing his sexual organ to penetrate the mouth of the victim, but this count was dismissed by the trial court at the close of the evidence.