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Cervantes v. State

Court of Appeals of Texas, Tenth District

December 4, 2019


          From the 361st District Court Brazos County, Texas Trial Court No. 14-04555-CRF-361

          Before Chief Justice Gray, Justice Davis, and Justice Neill



         Juan 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.

         Background Facts

         Emily 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.

         In 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 Police Department.

         Detective 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 Cervantes's arrest.

         Cervantes's 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.

         Angela 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."

         Witness Testimony

         In the 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.

         At the 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."

         D.W. 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. ...

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