the 361st District Court Brazos County, Texas Trial Court No.
Chief Justice Gray, Justice Davis, and Justice Neill
E. NEILL, JUSTICE
Cervantes was indicted in Count 1 for the offense of
indecency with a child by contact and in Count 2 for the
offense of indecency with a child by exposure. The jury
convicted Cervantes on both counts, and the trial court
assessed punishment at twenty years confinement in Count 1
and eight years confinement in Count 2. The trial court
ordered the sentences to run consecutively. We affirm.
Johnson and Cervantes were married for a short time in 2006
and had a daughter, I.C. After they divorced, Emily and I.C.
lived in Louisiana, and I.C. would go for visitation in Texas
with Cervantes. In March 2011, I.C. told her aunt,
Emily's sister, and her grandmother, Emily's mother,
some things about Cervantes that they found concerning. I.C.
told her grandmother that Cervantes made her sit on his lap
and "do this." I.C. then made a hand gesture that
her grandmother described as stroking a penis. They called
Emily, and she reported what I.C. said to Child Protective
Services in Louisiana. I.C. shut down and did not talk about
the incident further at that time. I.C. did not have any
further visitation with Cervantes.
2013, Cervantes left voice messages for Emily in which he
acknowledged that I.C. had seen him naked and that he did
have an erection while lying on the couch with I.C. After the
voicemail messages, I.C. talked to Emily more about what
happened with Cervantes. I.C. told Emily that Cervantes would
lay on the couch behind her and rub himself in her "butt
cheeks." I.C. also said that Cervantes came out of the
shower naked with his "thing" up. I.C. further told
Emily that Cervantes would sit on the couch with his
"thing" out and make her touch it. Emily again
contacted Child Protective Services, and eventually the Bryan
Chris Loup with the Bryan Police Department talked to
Cervantes about the allegations. Cervantes told Detective
Loup about other allegations against him made by his first
wife, Angela, and her daughter J.D. A warrant was issued for
sister testified at trial that after Cervantes and Angela
split up, Cervantes assumed that Angela left because she
found out about him and J.D. Cervantes told his sister that
he had been "fruitful" with J.D. Cervantes then
admitted to his sister that he had touched his penis on J.D.
and also indicated that he had oral sex with J.D. His sister
stated that it was known in their family that Cervantes had a
problem with molesting girls and that they did not leave him
alone with the girls in their family.
testified at trial that she was married to Cervantes for 5
years and that her daughter, J.D. was 2 years-old when she
married him. Angela stated that after she left Cervantes, he
told her he had been "fruitful" with J.D. Angela
said that when she asked Cervantes what he meant by that, he
responded with statements like "you know what I mean and
you know what I did."
second issue, Cervantes argues that he was deprived of his
right of confrontation as provided by the Sixth Amendment of
the United States Constitution when the trial court permitted
D.W. to testify via Skype about an extraneous offense. D.W.
is the niece of Cervantes. She lives in Wichita, Kansas and
is a single mother of five children, including a
breast-feeding newborn. Cervantes made a pre-trial objection
to the State's request to allow D.W. to testify by Skype
and moved for a continuance.
hearing on the motion for continuance, the trial court noted
that it had read cases involving Skype and the appropriate
way for people to testify without a violation of the
confrontation clause. The trial court denied the continuance.
In ruling on the admissibility of the testimony by Skype, the
trial court found that system the court would be using
allowed contemporaneous transmission and cross-examination.
The trial court stated that the system allowed Cervantes to
see the witness and the witness to see Cervantes as well as
counsel for the State and Cervantes. The trial court noted
that the jury would be able to observe the testimony on the
large screen and observe the demeanor of the witness. The
trial court found that the State, "has established a
need with a young child being breastfed and a requirement of
care for other children and that that is an exceptional
circumstance allowing her to testify by webcam without
violating a Sixth Amendment right to confrontation."
testified via Skype that when she was nine years-old she
lived with her grandmother, Cervantes's mother, and that
Cervantes also lived in the home. D.W. said that Cervantes
asked her if he could see her naked and also asked her if she
wanted to see him naked. Cervantes also asked D.W. if he
could "make love to her." D.W. ...