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Gonzalez v. State

Court of Appeals of Texas, First District

May 16, 2017


         On Appeal from the 177th District Court Harris County, Texas Trial Court Case No. 1325153 & 1325154

          Panel consists of Justices Keyes, Higley, and Lloyd.



         A jury found Appellant, Roel David Gonzalez, guilty of the offense of aggravated sexual assault of a child on the first offense and indecency with a child on the second.[1] Appellant elected for the jury to assess punishment, and it assessed his punishment at confinement for twenty years on the first offense and five years on the second offense, to run concurrently. Appellant raises the following five issues: "Evidence was insufficient as a matter of law to sustain Appellant's conviction for" (1) "the offense of aggravated sexual assault of a child [and (2)] for the offense of indecency with a child"; (3) "[t]he trial court erred in denying Appellant's motion [for] mistrial for the constitutional challenge to article 39.15 of the Texas Code of Criminal Procedure;" (4) "[t]he trial court erred when it overruled Appellant's objection to the improper argument of the prosecutor injecting evidence outside the record"; and (5) "[t]he trial court erred in denying Appellant's motion for mistrial based upon the prosecutor's improper jury argument."

         We affirm.


         Mother testified that she met Appellant through work, began dating him, and eventually they moved into a house along with Mother's three daughters in 2008. At the time, Alice was almost twelve, Belle was ten, and Cici, the complainant, was age eight.[2] Appellant became the family's primary supporter because, as Belle and Cici testified, Mother contracted multiple sclerosis. They lived together happily until one night when Appellant and Mother argued and threw beer containers at each other.

         According to Mother's testimony, Appellant was outside drinking with friends. After she asked them to come inside, she went outside where she and Appellant argued. Mother conceded that, after they argued, she threw a six-pack of beer at Appellant, and then he threw a twelve-pack of beer at her, cutting her forehead and cheek. Alice testified that she heard Mother go outside, and then she heard a loud boom. Alice went outside, smelled beer and blood, and saw her mother on the floor next to broken glass beer bottles with a bleeding gash on her forehead. Belle testified that, after Alice woke her, she ran outside to the garage and saw her mother bleeding and beating on Appellant's car window. Cici also saw her mother bleeding after the beer bottle incident.

         Following this incident, the relationship between the girls and Appellant was strained. Mother testified that, before the beer bottle incident, the girls would greet Appellant, but afterwards, they did not want to be home with him on the weekends. Priscilla Mango and Bryanna Gonzalez, Appellant's daughters, also observed the change in behavior. Mango testified that the girls initially called her father "Daddy, " but stopped after the beer bottle incident. Gonazalez testified that "[the girls] loved him like their own father, " but became cold and distant after the incident. Also, during cross-examination, an investigator for the Texas Department of Family and Protective Services (DFPS) testified that Alice told her that she wanted Appellant out of the house and that she wanted her Mother and her biological father to reconcile. According to the investigator, Alice's dislike for Appellant increased after the beer bottle incident. The investigator also confirmed that Mother knew her daughters did not like Appellant. Belle and Cici both conceded on the stand that they did not like Appellant.

         In 2009, on the night of the first incident, Belle testified that she, Cici, and Appellant were up late playing Monopoly, as they often were, and Mother had gone to sleep. Belle lost. While the game continued, she fell asleep. She testified that she woke up as Appellant tried to unzip her blue jean shorts to the light of a camouflage-colored flashlight, but she rolled over, dissuading him. She also testified that she saw Appellant move towards Cici with a flashlight, and then stand over her. Belle said that she thought Appellant did the same thing to Cici.[3]

         Cici testified that Appellant stood over her and pulled her nightgown up and underpants aside to put his mouth and tongue on her genitals. Cici defined her genitals as the part of her body she uses to go to the bathroom. Cici was scared and "didn't know what to do."

         Cici further testified that, after a while, Appellant stopped, retrieved a beer from the kitchen, and came back. Appellant re-opened her legs by grabbing her ankles, and returned to licking her genitals. Cici kept her eyes shut, so that Appellant would not know she was awake.

         Cici also testified that, on a second night, she awoke to Appellant unbuttoning her shorts and sticking two fingers into her vagina, which she demonstrated during trial using a Kleenex box. She was in the room where all three girls slept. Unlike the last time, Cici said it hurt her, so she opened her eyes, but she did not try to wake her sisters. Cici testified that Appellant stopped, went to the bathroom, and washed his hands.

         On a third night, Cici testified that she saw Appellant enter their room, but Cici shook Alice awake. Alice questioned Appellant's presence. Also, the noise woke Mother, who asked Appellant to turn off the light. Appellant left the room.

         Alice testified that she learned of the abuse from Belle and Cici in the summer of 2010, and she started a rumor at school that Appellant had raped her. She testified that the point of the rumor was to remove Appellant from the house or to call attention to Appellant's wrongdoing. When confronted by a school counselor, Alice conceded that she lied when she said that Appellant raped her. The DFPS investigator testified that she received a report about suspected abuse in April of 2011, and that both Belle and Cici told her about the sexual abuse.

         All three girls were transported to, and participated in, forensic interviews at the Children's Assessment Center. Stephanie Jones, the forensic interviewer, testified that Cici was 10 years old at the time of the interview and made the comment "my stepfather raped me."

         The State provided Brady notices for the forensic interviews to Appellant. Prior to and during trial, Appellant moved for copies of the forensic interviews in order to fully prepare his defense. The trial court allowed access to the interviews, but did not allow Appellant to copy the interviews. Both Appellant's counsel and expert reviewed all three videos prior to trial. Appellant also asked for a mistrial on the basis that the lack of copies hindered his right to prepare and confront witnesses, and the trial court denied the mistrial request. During its rebuttal case, the State called the forensic interviewer, and, after Appellant waived his objections, all three interviews were admitted by the trial court and published to the jury.

         During his cross-examination of the girls, Appellant highlighted inconsistencies between their testimony on the stand and their forensic interviews. Belle conceded on the stand that in the forensic interview she did not mention the flashlight, did not remember telling Cici to go to her room, did not see Appellant get a beer after the initial abuse of Cici, and did not see Appellant go back and touch Cici again. Cici testified that she did not remember Appellant using a flashlight, and still did not remember the flashlight after reviewing her forensic interview testimony in which she said she woke up to a bright light. Cici did not tell the forensic interviewer about Appellant's massaging her feet before she fell asleep

         Appellant, on appeal, calls our attention to discrepancies between Belle and Cici's testimony: Cici did not remember falling asleep on the couch, nor did she remember anyone else being awake, even though Belle had testified to being awake. Also, Belle said the girls did not wear shorts around Appellant, but Cici said she was wearing shorts during the second assault.

         Concerning the third night, Appellant also points out on appeal that Cici testified in the forensic interview that her older sister, Alice, was at her grandmother's house, not at home, as she testified at trial.

         Dr. Reena Isaac, a child abuse pediatrician and the medical director of the forensic nurse team at Texas Children's Hospital, conducted the medical examinations for the DFPS investigation, and specifically of Cici. Isaac testified that Cici told her that Appellant touched "in my private parts" and pointed to her genitals. Isaac related that Cici said Appellant touched her genitals with his mouth and his fingers two times, but Cici never saw Appellant's private part. Isaac further testified that she found no damage in Cici's genital area, which was expected because any damage could have repaired itself within days. On cross-examination, Isaac conceded that, even though the exam itself is not dispositive, she did not see any physical signs of abuse.

         Dr. Gilbert Garcia, a pediatrician with Northeast Pediatric Associates of Humble, testified that Cici visited his office twice in 2011. The first was a normal visit, where everything "looked fine." On a second visit for an upper respiratory infection several months later, Mother and Cici met with one of Dr. Garcia's physician's assistants. Dr. Garcia read the assistant's notes to the jury, which indicated Mother was very concerned about child abuse dating back two years, and she asked for a referral to a psychiatrist:

Mom states that patient was sexually abused for over two years. She found out this April that her boyfriend was sexually abusing [Belle] and her sister. Mom had gone to the police and both girls had been examined by CPS physicians. The boyfriend is no longer in the picture. Mom is pressing charges. Mom is very concerned, crying in the office. She states that the girls do not talk about what happened and are very withdrawn. Mom would like for them to be seen by a psychiatrist.

         Dr. Garcia testified that his office did make a referral, but Mother never updated them about any treatment CiCi was receiving.

         Dr. Mathew Ferrara, a licensed psychologist and licensed sex offender treatment provider, suggested on the stand that about 42% of sexual abuse allegations are unfounded. He stated that false allegations most typically occur in older children who either have specific motives or who are coached for custody or divorce hearings by a parent. Motives may include lying to protect a parent from being hurt by another. Ultimately, he asserted that contradictions in the testimony of children are the key to identifying whether a statement is false. Dr. Ferrara suggested that if one child says she saw someone touching another's genitals with his fingers, but another child felt or saw the offender touching her genitals with his mouth, that would be a major contradiction.

         Dr. Ferrara also confirmed, on cross-examination, a few basic truths about child sexual abuse: victims and offenders usually know one another; offenders can have active sexual relationships with their spouses while committing sexual offenses with children; and intoxication could encourage an offender.

         Appellant provided three character witnesses: his ex-wife, a relative, and a neighbor. Appellant's ex-wife testified that she had known him for 30 years, and he was a good person, despite her having filed a protective order against him in the past. His ex-wife testified she filed the protective order after three death threats. First, Appellant threatened to kill his ex-wife when he caught her alone. Second, he followed his ex-wife into a neighbor's house, and told everyone that they could neither leave nor use a phone. He, then, shoved her into a wall, while grabbing and squeezing her wrists, saying that if he hit her, she would not get up. Third, he grabbed her arm while she was leaving work and threatened to kill her because he said that she was having a relationship with another man.

         Enedelia Pina, who identified Appellant as her husband's nephew, testified that she knew Appellant, and knew he was a peaceful and law abiding citizen. Michael Santos, Appellant's neighbor since 1977 and a sergeant with the Harris County Sheriff's Office, testified that Appellant was a peaceful, law-abiding citizen and a good neighbor. Both Pina and Santos were aware of the beer bottle incident, but it did not change their opinion of Appellant.

         In June 2012, the State indicted Appellant for the offenses of aggravated sexual assault of and indecency with Cici, a child under the age of fourteen. The indictments for aggravated sexual assault and indecency with a child alleged, respectively:

The duly organized Grand Jury of Harris County, Texas, presents in the District Court of Harris County, Texas, that in Harris County, Texas, ROEL DAVID GONZALEZ, hereafter styled the Defendant, heretofore on or about JANUARY 1, 2009, did then and there unlawfully, intentionally and knowingly cause the sexual organ of [Cici], a person younger than fourteen years of age, to contact the MOUTH of THE DEFENDANT.
The duly organized Grand Jury of Harris County, Texas, presents in the District Court of Harris County, Texas, that in Harris County, Texas, ROEL DAVID GONZALEZ, hereafter styled the Defendant, heretofore on or about JANUARY 30, 2009, did then and there unlawfully, intentionally and knowingly cause the penetration of the SEXUAL ORGAN of [Cici], hereinafter called the Complainant, a person younger than fourteen years of age, by placing HIS FINGER in the SEXUAL ORGAN of the Complainant.

         Later, in closing argument, both Appellant and the State revisited the night when Appellant struck Mother on the head with a beer bottle. In his closing argument in the guilt phase, Appellant suggested that the girls had lied about the sexual abuse in order to protect their Mother from Appellant. During the punishment phase, after recounting Appellant's mistreatment of his ex-wife, the State suggested he continued the same pattern of behavior with Mother because Appellant "bash[ed] her head in with a beer bottle." Appellant objected that the State's statement was outside the evidence because the bottle was "thrown." The trial court overruled the objection and instructed the jury to rely on testimony as evidence.

         Also in closing argument for the punishment phase, Appellant and the State also discussed what impact the length of jury deliberation should have on Appellant's punishment. Appellant suggested that the jurors could use any residual doubts they had when they considered Appellant's punishment. The State responded in their argument "Don't let anyone tell you or make you feel bad about your verdict. That's not right." Appellant objected. The trial court sustained the objection and instructed the jury to disregard the last comment. Appellant then asked for, but the trial court denied, a request for mistrial.

         The jury found Appellant guilty of aggravated sexual assault of and indecency with a child and assessed punishment at twenty years' confinement on the first offense and five years' confinement on the second offense. The trial court entered judgment on the jury's verdict and punishment sentence. Appellant now brings this appeal.

         Sufficiency of the Evidence

         In his first and second issues, Appellant argues that the evidence is insufficient to support the offense of aggravated sexual assault of a child or of indecency with a child because enough factual inconsistencies proliferate the record to prevent a rationale juror from finding Appellant guilty beyond a reasonable doubt. Appellant contends that the children were motivated by anger, after Appellant bloodied their mother with a beer bottle. The State asserts that Appellant is asking this Court to re-weigh the evidence, which is the jury's responsibility. Instead, the State argues that the children's testimony combined with the forensic interview videos and medical records was sufficient for the jury to find Appellant placed his mouth on Cici's sexual organ and two fingers into Cici's sexual organ while she was younger than fourteen years of age.

         In evaluating the sufficiency of the evidence, we review all the evidence in the light most favorable to the trial court's judgment to determine whether any rational jury could have found the essential elements of the offense beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010) (citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789 (1979)); Hartsfield v. State, 305 S.W.3d 859, 863 (Tex. App.-Texarkana 2010, pet. ref'd); but see Johnson v. State, 419 S.W.3d 665, 671 n.2 (Tex.App.-Houston [1st Dist.] 2013, pet. ref'd) (suggesting the Court of Criminal appeals should revisit whether legal and factual sufficiency standards of review are indistinguishable). Evidence is legally insufficient when the "only proper verdict" is acquittal. Tibbs v. Florida, 457 U.S. 31, 41-42, 102 S.Ct. 2211, 2218 (1982). We examine sufficiency under the direction of Brooks, while giving deference to the responsibility of the jury "to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Hooper v. ...

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