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Prestiano v. State

Court of Appeals of Texas, First District

August 20, 2019

JOSEPH PRESTIANO, Appellant
v.
THE STATE OF TEXAS, Appellee

          On Appeal from the 119th District Court Tom Green County, Texas [*] Trial Court Case No. B-16-0472-SA

          Panel consists of Justices Keyes, Lloyd, and Goodman.

          OPINION ON REHEARING

          GORDON GOODMAN JUSTICE

         Joseph Prestiano has moved for rehearing of our March 26, 2019 opinion and judgment. We deny his motion for rehearing, withdraw our opinion and judgment of March 26, 2019, and substitute the following opinion and judgment in its place.

         Prestiano appeals from three judgments of conviction for aggravated sexual assault of a child younger than six years old. He contends that:

(1)as to the third count in the indictment only, the evidence is legally insufficient to sustain his conviction, in which the State alleged that he penetrated the child's mouth with his penis;
(2)the trial court erred in overruling his hearsay objections to a picture of sex toys drawn by the child during therapy and her counselor's testimony that the child drew the toys to explain what Prestiano did to her; and
(3)his trial lawyer rendered ineffective assistance by not lodging a hearsay objection to the therapist's testimony about the child's use of dolls and drawings to communicate the circumstances of her abuse.

         We reject Prestiano's evidentiary and ineffective-assistance claims. As to the third count, we agree that the evidence is legally insufficient to prove beyond a reasonable doubt that Prestiano penetrated the child's mouth with his penis. The evidence is sufficient, however, to sustain a conviction for the lesser-included offense of aggravated sexual assault by contact. We thus reform his judgment of conviction under the third count to reflect a conviction for the lesser-included offense, affirm his other two judgments of conviction, and remand to the trial court for a new punishment hearing as to the reformed conviction for the lesser-included offense.

         BACKGROUND

         Prestiano was indicted for three counts of aggravated sexual assault of a child younger than six years old. See Tex. Penal Code § 22.021(a)(1)(B), (a)(2)(B). All counts concerned a girl for whom he babysat. In the first count, the State alleged that Prestiano contacted the child's sexual organ with his mouth. See id. § 22.021(a)(1)(B)(iii). In the second count, the State alleged that he contacted the child's sexual organ with his penis. See id. In the third count, the State alleged that Prestiano penetrated the child's mouth with his penis. See id. § 22.021(a)(1)(B)(v).

         Prestiano pleaded not guilty, and the case was tried to the bench.

         The child was seven years old when she took the stand. She testified that Prestiano sexually abused her. Specifically, the child stated that he would touch her "private part and stuff." She clarified that by "private part" she meant her "pee-pee." Prestiano would touch her there with "weird toys and his hands" and sometimes his mouth. She said that he put the toys inside of her-that is, that Prestiano would put them in her "private part." She initially could not recall what the toys looked like but did remember drawing a picture of them in therapy. Subsequently, however, she recalled that one of the toys "was green and it vibrated when he pressed a button or something." When shown a photo of the green device and another vibrator, she recognized both. He kissed her on the mouth and on her "private part." She also said that he made her touch his "private part" sometimes, including with her finger and mouth. When she referred to his "private part" she meant the body part used to go "pee-pee." She stated that he would slide his private part "up and down on my private part." She also said that "gray stuff" came out of his "private part." She said that he abused her "a lot."

         The child's mother also testified. Her daughter made her outcry to her mother, disclosing Prestiano's abuse, several days after Christmas 2015, when she was five years old. The mother testified that her daughter was "a little fearful" and was "afraid she would get in trouble." The child indicated to her mother that Prestiano touched her genitals with his tongue. When the mother asked her daughter if "she wanted to see a policeman" about the abuse, the child "started crying and said that she didn't want to be arrested." Her mother contacted Child Protective Services so that a uniformed officer would not be directly involved. Her daughter was interviewed by a child advocate, while a police officer listened in from another room.

         The child subsequently began seeing a therapist, Vickie Purdy, who likewise testified. Purdy is a licensed professional counselor. She treated the child weekly from February through April 2016. Purdy stated that the child "had a lot of anxiety and fear, some feelings of guilt that she hadn't said anything for so long." The child "had nightmares and drew pictures." Because the child was so young, Purdy primarily used "non-directive, child-centered play therapy." Over defense counsel's objection, Purdy testified that the child demonstrated with dolls what had happened to her. Purdy also testified over objection about a drawing the child made of "some toys that had been used with her."

         Law enforcement officers seized two vibrators-one lime green and the other black with multihued rhinestones-from Prestiano's home during a search. A forensic analyst with the Texas Department of Public Safety analyzed the sex toys for DNA. Two samples taken from the green vibrator showed that DNA from two people were present, and the child could not be excluded as a "possible contributor" to this mixture of DNA. Two samples from the other vibrator showed mixtures of DNA from two and three people respectively. The child could not be excluded from these samples, either.

         Prestiano took the stand in his own defense. He testified that he babysat the child "quite a bit" at her parents' home. He denied touching her inappropriately, kissing her "anywhere that would have seemed inappropriate," or using a vibrator on her. He acknowledged that the green and black vibrators were his. As an explanation for the DNA evidence, Prestiano stated that the child discovered the green vibrator after going through his backpack, which he usually carried with him. He was not certain if she also had come across the black vibrator, or how she did so if she did, but indicated that it also was in his backpack. He testified that he had not realized that the vibrators were in the backpack, explaining that he thought that he "had thrown those out more than once" but that they kept turning up. He said that the vibrators "may have been in there for years" and that he had "thought they were long gone." When the child found the green vibrator and showed it to him, Prestiano told her that it was a "toy lipstick" but she nonetheless asked: "'Is it for,' and motioned down." Prestiano explained that that he had seen the child use her own toys "on her genitals." According to him, the child asked him questions of an adult or sexual nature that made him uncomfortable "quite frequently." He further testified that the child was generally naked at home, saying that it "was rare that she ever had clothes on."

         The trial court found Prestiano guilty of the three counts, and it entered separate judgments of conviction for each one. It assessed his punishment at 50 years of confinement on each count and ordered that the sentences run concurrently.

         DISCUSSION

         I. Legal Sufficiency

         Prestiano contends that there is insufficient evidence to sustain his conviction for the third count of aggravated sexual assault of a child, in which the State alleged that he penetrated the child's mouth with his penis. The State disagrees but further responds that if the court agrees with Prestiano, it should reform his conviction to one for aggravated sexual assault of a child by contact. Prestiano contends that the court cannot do so because aggravated sexual assault of a child by contact is not a lesser-included offense of aggravated sexual assault of a child by penetration.

         A. Standard of review and applicable law

         In a legal-sufficiency review, we view the evidence in the light most favorable to the judgment to determine whether a rational factfinder could have found the essential elements of the crime beyond a reasonable doubt. Gear v. State, 340 S.W.3d 743, 746 (Tex. Crim. App. 2011) (relying on Jackson v. Virginia, 443 U.S. 307 (1979)). In a bench trial, when the trial court sits as the sole factfinder, it alone assesses the credibility of the witnesses and decides how much weight to give each witness's testimony, which it may choose to believe or disbelieve in whole or part. Joseph v. State, 897 S.W.2d 374, 376 (Tex. Crim. App. 1995); Hernandez v. State, 538 S.W.2d 127, 131 (Tex. Crim. App. 1972). We defer to the trial court's resolution of conflicts in the evidence. Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010).

         The statute criminalizing aggravated sexual assault of a child sets forth several distinct offenses. Vick v. State, 991 S.W.2d 830, 833 (Tex. Crim. App. 1999). A person may commit an aggravated sexual assault of a child in several ways, including by intentionally or knowingly causing:

• the child's mouth to contact his penis, or
• the penetration of the child's mouth by his penis,

if the child is younger than 14 years of age, regardless of whether the person knew the child's age. See Tex. Penal Code § 22.021(a)(1)(B), (a)(2)(B); Smith v. State, 340 S.W.3d 41, 48 (Tex. App.-Houston [1st Dist.] 2011, no pet.). The uncorroborated testimony of the child is sufficient, standing alone, to support a conviction. Gonzalez v. State, 522 S.W.3d 48, 57 (Tex. App.-Houston [1st Dist.] 2017, no pet.). The child need not directly and explicitly testify as to contact or penetration with the same clarity and ability of an adult witness to prove these facts beyond a reasonable doubt. See Villalon v. State, 791 S.W.2d 130, 133-35 (Tex. Crim. App. 1990).

         B. Analysis

         In the third count of the indictment, the State alleged that Prestiano intentionally penetrated the child's mouth with his penis. The child's testimony was the supporting evidence on this subject. In response to questions posed by the State, the child testified as follows:

Q. Did any part of you ever touch his private part?
A. I think my finger and my mouth, but he forced me to do it.
Q. You're not in trouble, babe.
A. I know.
Q. Okay. So, did his private part touch your mouth? Did it ever go inside of your mouth?
A. I think it just touched it a little bit.
* * *
Q. His private part touched your ...

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