Mata v. State

         On appeal from the 389th District Court of Hidalgo County, Texas.

          Before Justices Rodriguez, Contreras, and Longoria.

          MEMORANDUM OPINION

          NELDA V. RODRIGUEZ Justice.

         A jury found appellant Erasmo Mata Jr. guilty of one count of sexual assault of a child, a second-degree felony, and assessed punishment at four years' imprisonment and a $5, 000 fine.^[1] See Tex. Penal Code Ann. § 22.011(a)(2)(C), (f) (West, Westlaw through 2015 R.S.); id. § 22.011(c)(1) (defining "child" as "a person younger than 17 years of age"). The trial court rendered a judgment of conviction and sentence in accordance with the jury's verdict. By four issues, which we have reorganized, Mata first contends that the evidence is insufficient to support a finding of guilt. He also asserts that the trial court erred when it denied the admission of text messages purportedly exchanged between complainant N.G.^[2] and others; denied Mata's motion for new trial that alleged juror misconduct during deliberations; and refused to allow the completion of Mata's offer of proof. We affirm.

         I. Sufficiency of the Evidence and Verdicts

         By his first issue, Mata contends the evidence is insufficient to support his conviction. See id. § 22.011(2)(C). Mata also complains that the jury's verdicts of guilty of sexual assault by contact and not guilty of sexual assault by penetration are conflicting and "cannot be logically sustained." In response, the State argues that "[t]he verdicts are readily explained: while the jury did not find beyond a reasonable doubt that penetration was achieved while [N.G.] was a child, the jury did determine that the evidence was adequate to establish that sexual organ to sexual organ contact had occurred" between N.G. and Mata while N.G. was a child. See id.

         A. Standard of Review and Applicable Law

         When reviewing the sufficiency of the evidence, a court will examine the evidence in the light most favorable to the verdict. Jackson v. Virginia, 443 U.S. 307, 319 (1979); see Brooks v. State, 323 S.W.3d 893, 902 (Tex. Crim. App. 2011). The critical inquiry is whether the evidence would support a rational fact-finder determining that the defendant is guilty beyond a reasonable doubt. Jackson, 443 U.S. at 319. This standard accounts for the factfinder's duty to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Id.; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We must not re-evaluate the weight and credibility of the evidence and substitute our judgment for that of the factfinder. See Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999) (en banc). We must presume that the factfinder resolved any conflicting inferences in favor of the prosecution and defer to that resolution. Jackson, 443 U.S. at 326; Clayton, 235 S.W.3d at 778.

         The reviewing court measures the sufficiency of the evidence by the elements of the offense as defined by a hypothetically correct jury charge. Villarreal v. State, 286 S.W.3d 321, 327 (Tex. Crim. App. 2009). A hypothetically correct jury charge is authorized by the indictment, accurately sets out the law, does not unnecessarily increase the State's burden of proof or restrict the State's theories of liability, and adequately describes the particular offense in question. Malik v. State, 953 S.W.2d 234, 239 (Tex. Crim. App. 1997) (en banc). In this case, to support a conviction for sexual assault by contact, the evidence must show that on or about July 15, 2013, Mata knowingly or intentionally caused the sexual organ of N.G., a child who was younger than seventeen years of age, to contact his sexual organ. See Tex. Penal Code Ann. § 22.011(a)(2)(C). On appeal, Mata specifically challenges the sufficiency of the evidence to establish the contact element of the offense. See id.

         B. Testimony

         According to trial testimony, Mata met N.G. in May of 2013. At that time, Mata was a police officer with the Pharr Police Department. He was patrolling the area near N.G.'s apartment complex, and N.G. was outside her home. Mata stopped his vehicle and asked N.G. for her name and telephone number. They subsequently communicated by phone and Yahoo messenger and saw each other on occasion.

         At trial, N.G. testified that in June or July 2013, when she was sixteen years old, she and Mata were alone at night in an empty apartment. Mata had removed N.G.'s clothes and his pants, with his underwear down to his knees, and was on top of her. According to N.G., although Mata told her that he wanted to have sex with her, she did not because "it was [her] first time." In response to her saying "no, " Mata told her that nothing would happen, although, as N.G. recounted, Mata tried to "put his penis inside [her] vagina" "more than four times." N.G. testified that she felt "the front of his penis, " "[t]he front of the-the head, " "just a little bit." According to N.G., she told Mata to stop and agreed that she felt pain.

         N.G. also testified about a second incident that occurred when she was sixteen. N.G. explained that she and Mata were in a lot behind her apartment, and Mata "was trying again to put his penis inside [her] vagina." She agreed, however, that nothing happened.

         Finally, N.G. testified that the first time she had sex with Mata was when she "lost [her] virginity with him" in the back of a truck on October 20, 2013, after her seventeenth birthday. In the following testimony, N.G. compared the October 20 incident with the incident that occurred at the empty apartment when she was sixteen years old:

Q. Can you-why is that time on October 20th different from what happened in the apartment?

A. Then he tried to put it inside and then I kept telling him it hurt, it hurt a lot. And then he would just put it all the way in.

Q. Okay. He put it all the way in?

A. Yes.

Q. What did he do with his body?

A. He was going back and forth.

Q. Okay. Now, I want you to think back to what happened in the apartment. How is what happened in the apartment different?

A. [After removing their clothes, ] then he tried to put his penis again in my vagina.

Q. And can you tell the jury-when you say, he tried to put his penis in, what do you mean?

A. Like, the front of the penis and I told him to stop because it was hurting.

         The following exchange occurred when counsel asked N.G. to visually illustrate with her hand and finger what happened at the apartment and what happened in the truck.

Q. . . . [C]an you show the jury by holding your hands up to them, where the defendant put his penis?

A. Like right here.

Q. Okay. How is that different from what happened in the truck?

THE COURT: Could the record reflect that she has actually made a circle with her left hand and her finger, index finger on the right hand and put it-describe ...