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Gutierrez v. State

Court of Appeals of Texas, Fourteenth District

August 20, 2019


          On Appeal from the 177th District Court Harris County, Texas Trial Court Cause No. 1497729

          Panel consists of Justices Wise, Zimmerer, and Spain.



         A jury found appellant guilty of the continuous sexual abuse of a young child, and the trial court assessed punishment at forty years' imprisonment. See Tex. Penal Code § 21.02. In five issues, appellant contends that (1) the trial court erred by denying a motion to suppress the contents of his cell phone; (2) the trial court erred by admitting evidence from appellant's cell phone over appellant's Rule 403 objection; (3) the trial court erred by admitting evidence from appellant's cell phone under Article 38.37 of the Code of Criminal Procedure; (4) the trial court erred by admitting evidence from appellant's cell phone because the State's witnesses were unable to testify that the contents amounted to evidence of extraneous offenses; and (5) the evidence is insufficient to support his conviction.

         We affirm.

         I. Sufficiency of the Evidence

         We first address appellant's fifth issue concerning the sufficiency of the evidence. See, e.g., Price v. State, 502 S.W.3d 278, 281 (Tex. App.-Houston [14th Dist.] 2016, no pet.). Appellant contends that the evidence is insufficient because the State's evidence "consisted entirely of the complainant's testimony that the abuse occurred." Appellant focuses on (1) the lack of physical evidence of abuse; (2) the complainant's testimony conflicted with statements she had made to a Child Protective Services (CPS) investigator during an unrelated investigation several years earlier; (3) the failure of police to find vibrators in appellant's home, which the complainant described in an interview at the Children's Assessment Center ten days after appellant knew the abuse had been reported to the police; (4) the complainant allegedly gave different ending dates for the abuse when asked about it at trial, during the forensic interview, and during a medical exam; and (5) appellant's wife testified that appellant was impotent and therefore could not have abused the complainant in the manner described by the complainant.

         A. Standard of Review and Legal Principles

         In a sufficiency review, we consider all of the evidence in the light most favorable to the jury's verdict to determine whether, based on that evidence and reasonable inferences therefrom, any rational juror could have found the essential elements of the crime beyond a reasonable doubt. Balderas v. State, 517 S.W.3d 756, 765-66 (Tex. Crim. App. 2016). We defer to the jury's responsibility to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Id. at 766. The jury is the sole judge of the credibility and weight to be attached to witness testimony, and we must defer to the jury's resolution of conflicting inferences that are supported by the record. See id.

         B. Evidence

         The complainant was fifteen years old at the time of trial in 2018. Before she reported the abuse, she had been living with her grandmother and appellant, who was the complainant's step-grandfather. The grandmother and appellant had adopted the complainant in 2008. The complainant testified about sexual abuse that occurred between the time she was in second grade and the summer before she entered seventh grade-at age twelve-when she told her grandmother and others about the abuse.

         The complainant testified that appellant touched her privates[1] more than twenty times. She testified that appellant put his mouth on her private part a couple of times, and he would have her touch and tug his penis. Often, he tried to put his private inside her vagina. When he was unable to get his private part inside her vagina, he would "put it in [her] butt." He stuck his penis "up" her butt more than thirty times. She described feeling pressure, like she had to poop.

         The complainant testified about how appellant would bribe her with candy bars or playtime with her brother, or by returning her bike that had been taken away. He would specify which sex acts to perform and for how many minutes to perform. He would show her pornographic videos and ask her to do what the girls in the videos were doing. The complainant testified that appellant took some close- up pictures of her vagina a few days before the complainant told her grandmother about the abuse.

         The jury saw State's Exhibit 15-a compact disc containing an "extraction report" and the contents of appellant's cell phone. A detective with the City of Katy Police Department testified that he believed appellant's phone contained child pornography. Among the images of child pornography, he described images that he believed to be close-ups of a child's vagina. The jury saw State's Exhibits 16 and 17, which are full-page printouts of images that the detective testified were found in the "camera roll" of the phone-not from the Internet search history. Viewing the images on Exhibit 15, a rational juror could conclude that two images depict the unclothed vulva of a child.[2]

         State's Exhibit 15 also contains thousands of images of pornography and the "web history" from appellant's cell phone, showing the "topic," date, time, and link for websites that appellant visited. The detective testified about some websites that appellant visited, including those involving bestiality, rape, and incest. The investigator read aloud multiple topics involving sexual contact between daughters and fathers and stepfathers.

         The complainant acknowledged on cross-examination that over a year before she disclosed the abuse, there was an "incident" with her brother that resulted in her talking to a CPS investigator. She acknowledged telling the investigator that no one had touched her private parts, she had not seen the private parts of any adult or child, no one had shown her inappropriate pictures, and she had not seen anyone touching anyone on their private parts. The complainant testified, "I was lying when I talked to the CPS person because I was scared I was going to lose my family and everything."

         When the complainant reported appellant's conduct to her grandmother, they went to a police station to report the allegation on the same day in July 2015. Ten days later, the complainant was interviewed and examined at the Children's Assessment Center.

         The forensic interviewer testified that at the time of the interview, the complainant had just finished the sixth grade and was going into the seventh grade. The interviewer testified about several specific instances of abuse that the complainant reported to the interviewer. The interviewer testified that the complainant reported that appellant placed his private in her vagina and anus. The complainant reported that appellant also licked her vagina, and he made her put her mouth on his private. The interviewer testified about the complainant's statements regarding appellant's use of two vibrators on the complainant's private parts. The complainant told the interviewer that appellant kept the vibrators in the pocket of a coat in a hall closet. When police officers searched the home after this disclosure, they did not find the vibrators.

         A physician who examined the complainant testified that the complainant reported that the abuse started when the complainant was in the second grade, and the last time it occurred was a few weeks before the exam. During the exam, the physician asked the complainant where and with what appellant touched her. In addition to telling the physician about a vibrator, the complainant responded that appellant touched her "in [her] butt" with his "private part." The physician asked the complainant to clarify whether "in your butt" meant "in the crack of your butt or inside the hole where the poop comes out." The complainant responded, "In the hole."

         The complainant's grandmother and appellant's son testified that they did not believe the complainant's allegations. The grandmother testified that appellant was impotent and unable to achieve an erection. The last time she and appellant had sexual intercourse was in November 2009. She testified on cross-examination that appellant did not have access to juvenile females other than the complainant. The grandmother reviewed State's Exhibit 17. She was angry and sad that pictures of a juvenile female's genitalia were found on appellant's phone "[b]ecause it's- it's someone else. . . . It's not his wife."

         C. Analysis

         In this case, the State had to prove that (1) appellant was seventeen years of age or older; (2) the complainant was younger than fourteen years of age; and (3) during a period of time of thirty or more days, appellant committed at least two acts of "sexual abuse"-here, aggravated sexual assault of a child as pleaded in the indictment-against the complainant. See Tex. Penal Code § 21.02(b), (c)(4). To prove aggravated sexual assault of a child, as an element of the offense of continuous sexual abuse of a young child, the State could meet its burden by proving, among other possible statutory bases, that appellant caused the complainant's anus to contact appellant's sexual organ. See id. § 22.021(a)(1)(B)(iv), (2)(B).[3]

         The complainant's testimony, standing alone, is sufficient to support appellant's conviction for continuous sexual abuse of a young child. See Garner v. State, 523 S.W.3d 266, 271 (Tex. App.-Dallas 2017, no pet.); see also, e.g., Torres v. State, 424 S.W.3d 245, 253 (Tex. App.-Houston [14th Dist.] 2014, pet. ref'd) (aggravated sexual assault of a child). Neither physical nor medical evidence was required to corroborate the child complainant's testimony, which is otherwise sufficient to support a conviction. See Bargas v. State, 252 S.W.3d 876, 888-89 (Tex. App.-Houston [14th Dist.] 2008, no pet.). And, it was solely the jury's duty to judge the complainant's credibility and to resolve any conflicts in the evidence. See Balderas, 517 S.W.3d at 765-66. Thus, the jury could have found the complainant credible despite her earlier statements to a CPS investigator, the failure of police to find instrumentalities of the crime in appellant's home ten days after the crime was reported, and the grandmother's claim that appellant was impotent.[4]

         Moreover, the complainant's testimony that appellant took pictures of her vagina was corroborated by the detective's discovery of two images in the camera roll of appellant's phone, which depicted an unclothed vulva. The grandmother testified that the pictures were not of her, and appellant did not have access to any young girls other than the complainant. Based on the physical appearance of the vulva depicted in the images and the testimony of the witnesses, a rational jury could have inferred that the images were of the complainant's vulva. See id. (jury may draw reasonable inferences); see also Wilson v. State, 419 S.W.3d 582, 593 (Tex. App.-San Antonio 2013, no pet.) (sufficient evidence that images depicted children based on court's review of the evidence and testimony from a detective that the images depicted children); cf. Porath v. State, 148 S.W.3d 402, 417 (Tex. App.-Houston [14th Dist.] 2004, no pet.) (trial court, when determining admissibility, may review images without the benefit of expert testimony to determine whether the State met its burden to show that the images depicted real children).

         Considering all of the evidence in the light most favorable to the jury's verdict, including reasonable inferences therefrom, a rational juror could have found the essential elements of the crime beyond a reasonable doubt. Thus, the evidence is sufficient to affirm appellant's conviction for continuous sexual abuse of a young child.

         II. Motion to Suppress

         In his first issue, appellant contends that the trial court erred by denying his motion to suppress all evidence related to the warrantless seizure of his cell phone. He contends that (1) the seizure was not consensual, and (2) the police officer lacked exigent circumstances and probable cause. We hold that the trial court did not err by denying the motion because the totality of the circumstances show the existence of exigent circumstances and probable cause.

         A. Standard of Review and Legal Principles

         When reviewing a trial court's ruling on a motion to suppress, we give almost complete deference to the trial court's determination of historical facts. Lerma v. State, 543 S.W.3d 184, 190 (Tex. Crim. App. 2018). We view the evidence in the light most favorable to the trial court's ruling. Wiede v. State, 214 S.W.3d 17, 24 (Tex. Crim. App. 2007). But, we review de novo mixed questions of law and fact that do not turn on an evaluation of credibility and demeanor, such as whether an officer had probable cause to effect a seizure. See Guzman v. State, 955 S.W.2d 85, 87-89 (Tex. Crim. App. 1997). We will sustain a trial court's ruling on a motion to suppress if it is correct under any applicable theory of law. Lerma, 543 S.W.3d at 190.

         The Fourth Amendment prohibits unreasonable searches and seizures. Id. Generally, the seizure of personal property is per se unreasonable within the meaning of the Fourth Amendment unless the seizure is accomplished pursuant to a judicial warrant issued upon probable cause and particularly describing the items to be seized. United States v. Place, 462 U.S. 696, 701 (1983); see also Pine v. State, 921 S.W.2d 866, 872 (Tex. App.-Houston [14th Dist.] 1996, writ dism'd w.o.j.) ("A warrantless seizure is presumptively unreasonable."). But there are exceptions to the warrant requirement. Missouri v. McNeely, 569 U.S. 141, 148 (2013). One well-recognized exception applies when the exigencies of the situation make the needs of law enforcement so compelling that a warrantless search or seizure is objectively reasonable under the Fourth Amendment. See id. at 148-49. "Where law enforcement authorities have probable cause to believe that a container holds contraband or evidence of a crime, but have not secured a warrant, the Court has interpreted the Amendment to permit seizure of the property, pending issuance of a warrant to examine its contents, if the exigencies of the circumstances demand it or some other recognized exception to the warrant requirement is present." Place, 462 U.S. at 701.

         Once a defendant establishes that a search or seizure was conducted without a warrant, as here, the burden shifts to the State to prove that the search or seizure was reasonable. See Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005). The State can meet this burden by showing the existence of exigent circumstances and that the officer had probable cause for the seizure. See Crayton v. State, 485 S.W.3d 488, 501 (Tex. App.-Texarkana 2016, no pet.) ("If either probable cause or exigent circumstances are not established, a warrantless search or seizure will not pass muster under the Fourth Amendment." (citing Parker v. State, 206 S.W.3d 593, 597 (Tex. Crim. App. 2006) (regarding warrantless entry into home)); see also Place, 462 U.S. at 701.

         Exigent circumstances are met if the risk of the item's disappearance before a warrant may be obtained outweighs the suspect's interest in possession. See Place, 462 U.S. at 701-02; see also McNeely, 569 U.S. at 149 (noting that officers may conduct a search without a warrant to prevent the imminent destruction of evidence; and a warrantless search is reasonable under these circumstances because there is a compelling need for official action and no time to secure a warrant). For example, an exigency could be shown if a suspect has control over easily disposable evidence. See McNeely, 569 U.S. at 153 (citing Georgia v. Randolph, 547 U.S. 103, 116 ...

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