JOSE RAMIRO CABRERA v. THE STATE OF TEXAS (2010)

OPINION

Opinion By Justice Lang-Miers

A jury convicted Jose Ramiro Cabrera of indecency with a child and assessed punishment at twenty years in prison.   Appellant raises four issues on appeal.   He argues that the evidence is legally and factually insufficient and that the trial court erroneously admitted evidence and limited his cross-examination of a witness.   For the following reasons, we affirm.

Sufficiency of the Evidence

In his third and fourth issues, appellant contends that the evidence is legally and factually insufficient to support the conviction.

In reviewing a challenge to the legal sufficiency of the evidence, we examine the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt.  Jackson v. Virginia, 443 U.S. 307, 319 (1979);  Laster v. State, 275 S.W.3d 512, 517 (Tex.Crim.App.2009).   We do not re-weigh the evidence or substitute our judgment for that of the jury.   King v. State, 29 S.W.3d 556, 562 (Tex.Crim.App.2000).   The jury is the exclusive judge of the witnesses' credibility and the weight to be given to their testimony.  Harvey v. State, 135 S.W.3d 712, 717 (Tex.App.-Dallas 2003, no pet.).

In reviewing a challenge to the factual sufficiency of the evidence, we view the evidence in a neutral light, favoring neither party, to determine whether the verdict of guilt was rationally justified.   See Roberts v. State, 220 S.W.3d 521, 524 (Tex.Crim.App.2007);  Watson v. State, 204 S.W.3d 404, 415 (Tex.Crim.App.2006).   Evidence supporting the conviction is factually insufficient when it is so weak that the verdict seems clearly wrong and manifestly unjust, or when it is outweighed by the great weight and preponderance of the contrary evidence so as to render the verdict clearly wrong and manifestly unjust.  Roberts, 220 S.W.3d at 524.

We measure the sufficiency of the evidence by the elements of the offense as defined by a hypothetically correct jury charge.  Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App.1997).   A hypothetically correct jury charge “sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried.”  Id.

The State charged appellant with indecency with a child by contact.   It was required to prove that appellant intentionally or knowingly touched the breast of M.S., a child younger than seventeen years of age and not appellant's spouse, with his hand with the intent to arouse and gratify his sexual desire.   See Tex. Penal Code Ann. § 21.11(a)(1), (c)(1) (Vernon Supp.2009).

M.S. testified that she was ten years old at the time of trial.   She testified that on the day of the offense she was with her friend S.R. S.R.'s mom, Sylvia, took them to Sylvia's ex-husband's house where several people were gathered because of a death in the family.   M.S. and S.R. stayed outside to play on the trampoline.   M.S. did a flip on the trampoline and got a “carpet burn” on her elbow.   She went to the house to get a wet towel to stop the stinging.   She testified that she had to walk by appellant because he was standing by the stairs to the house talking to other men.   She testified that when she got to the stairs, appellant picked her up and threw her into the air about five or six times, put her back down on the ground, and started massaging her back.   She said he then touched her breast with one hand while shielding that hand with his other hand and arm so no one would see him touching her.   She said he made “kind of a pinching motion” with his left hand on her nipple through her clothing.   She said appellant was behind her “sort of like hugging [her] from behind.”   She looked back at S.R. and saw her putting on her shoes.   M.S. said appellant was holding her loosely, and she was able to run away.   Appellant said something to her in Spanish as she ran away, but she did not understand it because she does not speak Spanish.

M.S. went in the house, but because she did not know where the towels were, she stood there for a minute and went back outside.   She testified that when she went out the front door, she avoided going down the stairs so that she would not have to go by appellant.¹  When she got back to the trampoline, she told S.R. what happened.   M.S. and S.R. went in the house to tell Sylvia about what happened.   M.S. told Sylvia that a man in a blue shirt had touched her breast.   Sylvia sent her other daughter, M.I., with S.R. and M.S. so that M.S. could point out the man to M.I. M.I. reported to Sylvia that M.S. identified appellant as the man who touched her.   Appellant is Sylvia's ex-husband's stepfather.   When Sylvia and her ex-husband confronted appellant about the accusation, he denied that he had touched M.S. inappropriately.   He demonstrated how he hugged M.S. to show that he had hugged her “in a normal way” without touching her breast.

After M.S. had calmed down, she and S.R. went back to play on the trampoline, but M.S. stayed away from appellant.   Sylvia took the girls back to her house and told her husband, a police officer, about the incident.   They called M.S.'s parents and then the police.

M.S. testified that she had never met appellant and did not know his name.   She testified that she knew appellant touched her on purpose because of the way he did it.   She also testified that appellant's touching was different from the hugs and tickles she had received from her parents and grandparents.

Sylvia confirmed M.S.'s testimony about what happened.   She testified that M.S. ran up to her in the house and told her that a man in a blue shirt had touched her “boob,” meaning her breast, and demonstrated what he had done.   Sylvia said she immediately asked S.R. if the man had touched her, too;  S.R. said he had not.   Sylvia said M.S. looked like she had been crying, was shaking, and looked scared.   Sylvia asked M.I. and S.R. to go outside with M.S. to see if M.S. could identify the man that she said had done this to her.   M.I. told Sylvia, “[S]he said it's Ramiro.”   Sylvia testified that when she and her ex-husband confronted appellant about the incident, he said, “No, say.”   Sylvia said that meant “I don't understand.   I don't know.”   So Sylvia talked to him in Spanish about the accusation.   Appellant replied in Spanish, “No I only did this” and put his arm around M.S. to demonstrate, squeezing her shoulder area.   Sylvia testified that appellant was stuttering and looked nervous and that she did not believe him.

M.I. also confirmed M.S.'s testimony.   M.I. testified that M.S. came in the house crying and said a man had touched her.   M.S. pointed out the man to her.   M.I. knew him as Ramiro, her father's stepfather.

Appellant did not call any witnesses.   On appeal, he argues that the evidence is legally and factually insufficient because “there was no medical evidence, no DNA, no witness to the contact.   There were many other adults living in the home with Appellant, to which not one of them testified as to noticing inappropriate conduct.”

M.S. testified that appellant touched her breast through her clothing.   She told two people almost immediately, and both of those witnesses confirmed M.S.'s account of the incident.   Sylvia testified that appellant was nervous and stuttered when she confronted him about the incident.   M.S. testified that she felt pain and discomfort when appellant touched her breast and pulled on her nipple, but she was not injured in a way that required medical attention.   She also testified that appellant shielded his hand with his other arm and hand so that no one could see what he was doing.   A child's testimony alone is sufficient to support a conviction for indecency with a child.   See Karnes v. State, 873 S.W.2d 92, 96 (Tex.App.-Dallas 1994, no pet.) (citing Villalon v. State, 791 S.W.2d 130, 134 (Tex.Crim.App.1990)).   Viewing the evidence under the appropriate legal standards, we conclude that the evidence is legally and factually sufficient to support the jury's verdict.   We resolve appellant's third and fourth issues against him.

Evidentiary Rulings

In his first and second issues, appellant complains about the trial court's evidentiary rulings.

In his first issue, appellant contends that the trial court admitted impermissible testimony about M.S.'s propensity to tell the truth, hearsay testimony, and testimony that was “clearly inflammatory and prejudicial” regarding his citizenship status.   The State contends that appellant's first issue is multifarious and inadequately briefed.   We agree with the State.

A multifarious issue is one that embraces more than one specific ground or that attacks several distinct and separate rulings of the court.  Stults v. State, 23 S.W.3d 198, 205 (Tex.App.-Houston [14th Dist.] 2000, pet. ref'd.).   By combining more than one contention in a single issue, an appellant risks rejection on the ground that nothing is presented for review.  Id.

Issue one is divided into three subparts.   One subpart complains about the admission of testimony from two expert witnesses and four lay witnesses during the guilt phase of trial;  a second subpart complains about the admission of hearsay testimony from two witnesses during the guilt phase of trial;  and the third subpart complains about the admission of testimony from a different witness during the punishment phase of trial.   As far as we can discern, issue one complains about a total of 19 different statements from both phases of trial, but it does not separately argue why each of appellant's objections should have been sustained, how he was harmed by the court's failure to sustain those objections, or contain record cites to all of the complained-of testimony.   We conclude that issue one is multifarious, inadequately briefed, and presents nothing for our review.   See Tex.R.App. P. 38.1(i);  Stults, 23 S.W.3d at 205.

In his second issue, appellant contends that he was denied his constitutional right to confront a witness.   The State recalled M.I. during the punishment phase of trial.   During cross-examination, appellant elicited testimony from M.I. that S.R.'s father (M.I.'s stepfather) had touched her inappropriately while she was asleep many years earlier.   In a hearing outside the presence of the jury, defense counsel explained that she wanted to cross-examine M.I. on this incident to show “her state of mind, into how sensitive she is.”   The State argued that it was not relevant, and its prejudicial effect would outweigh any probative value under rule 403.   The trial court ruled that the evidence was not relevant.

On appeal, appellant argues that the exclusion of the testimony was error because it prevented him from presenting evidence of “alternative explanations for M.I.'s behavior and current allegation” and denied his right to confront the witness.   But when appellant proffered the evidence, he argued only that it went to her “state of mind, into how sensitive she is.”   He did not assert the grounds that he now raises on appeal.   See Tex.R.App. P. 33.1(a);  Reyna v. State, 168 S.W.3d 173, 179 (Tex.Crim.App.2005).   We conclude that appellant did not preserve this issue for our review.   We resolve issue two against appellant.

Conclusion

We affirm the trial court's judgment.

FOOTNOTES

FN1. The record indicates that the house had a porch or deck on the front and that M.S. was able to get off the porch or deck by going through the railing instead of the stairs..  FN1. The record indicates that the house had a porch or deck on the front and that M.S. was able to get off the porch or deck by going through the railing instead of the stairs.

ELIZABETH LANG-MIERS JUSTICE