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Jeremy Alexander BAUTISTA, Appellant v. The STATE of Texas, Appellee
This case presents a unique procedural history. Appellant Jeremy Alexander Bautista was convicted of aggravated sexual assault of a child. See Tex. Penal Code Ann. § 22.021. Appellant appealed and he raised three issues challenging his conviction. In addition to arguing that the evidence was legally insufficient to support his conviction, appellant also argued the trial court abused its discretion when it failed to conduct an informal inquiry into appellant's competency to stand trial, and when it excluded a demonstrative exhibit. In an unpublished abatement order, we first determined that the evidence was legally sufficient to support appellant's conviction. See McFarland v. State, 930 S.W.2d 99, 100 (Tex. Crim. App. 1996) (holding that “an appellate court must examine and decide a sufficiency challenge even if the conviction must be reversed on other grounds”). We next sustained appellant's issue asserting that the trial court abused its discretion when it did not conduct an informal inquiry into appellant's competency.1 We then abated appellant's appeal and remanded to the trial court with instructions to determine the feasibility of a retrospective competency inquiry and if such an inquiry was possible, to conduct an informal inquiry into appellant's competency to stand trial. We further ordered that if the informal inquiry established that there is some evidence of incompetency, the trial court should then conduct a formal competency trial. On remand, the State and appellant agreed appellant was not competent at the time of his trial. The trial court filed a supplemental clerk's record with this court that included an agreed order to that effect. We reinstated appellant's appeal and requested supplemental briefing. Appellant filed a supplemental brief raising a supplemental issue asserting that because he was incompetent at the time of his trial, his conviction must be reversed for a new trial pursuant to chapter 46B of the Code of Criminal Procedure. The State filed a responsive brief in which it agreed with appellant. We now turn to a final resolution of appellant's remaining issues on appeal.
Having provided an in-depth summary of the facts in the unpublished abatement order, we provide only a brief summary here. This summary is presented through the standard of legal-sufficiency review, “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Johnson v. State, 364 S.W.3d 292, 293–294 (Tex. Crim. App. 2012) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). The jury is the sole judge of the credibility of witnesses and the weight to afford their testimony. Montgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012). The jury may reasonably infer facts from the evidence presented, credit the witnesses it chooses, disbelieve any or all of the evidence or testimony proffered, and weigh the evidence as it sees fit. See Canfield v. State, 429 S.W.3d 54, 65 (Tex. App.—Houston [1st Dist.] 2014, pet. ref'd). When the record supports conflicting inferences, the reviewing court presumes the trier of fact resolved the conflicts in favor of the State and defers to that determination. See Marshall v. State, 479 S.W.3d 840, 845 (Tex. Crim. App. 2016) (“We defer to the jury's finding when the record provides a conflict in the evidence.”); Jackson v. State, 495 S.W.3d 398, 405 (Tex. App.—Houston [14th Dist.] 2016, pet. ref'd). We do not become a thirteenth juror by re-evaluating the weight and credibility of the evidence or substituting our judgment for that of the fact-finder. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007); Reed v. State, 158 S.W.3d 44, 46 (Tex. App.—Houston [14th Dist.] 2005, pet. ref'd). Our duty as a reviewing court is to ensure that the evidence presented can actually support a conclusion that the defendant committed the crime. See Williams, 235 S.W.3d at 750. We will uphold the verdict unless we determine any rational factfinder would have a reasonable doubt as to any essential element. Laster v. State, 275 S.W.3d 512, 518 (Tex. Crim. App. 2009).
The complainant, S.W., was ten years old when she testified during appellant's trial. The complainant's biological mother is M.B. The complainant testified that, when she was four or five years old, she lived with her mother, her brother, and appellant. Appellant is M.B.'s boyfriend. The complainant testified that she left her mother's apartment when she was seven or eight years old and now lives with her aunt and uncle.
The complainant testified that her mother worked every day. According to the complainant, appellant watched her and her brother while their mother worked. The complainant testified that appellant did horrible things to her. According to the complainant, appellant put his private part in her mouth, made her touch his private, and he touched her “[i]n my front private and my back private” with his private. The complainant continued that when appellant touched her front private with his private, it went into her front private. According to the complainant, when appellant put his private in her back private and in her mouth, it hurt sometimes. The complainant testified that the abuse started in kindergarten and ended when she left the house. According to the complainant, the assaults happened when her mother was not home and there were no other grown-ups in the house. The complainant said that appellant did it more than twenty times.
Appellant was charged with continuous sexual abuse of a child. See Tex. Penal Code Ann. § 21.02. The jury charge included the lesser-included offense of aggravated sexual assault of a child for penetrating the child's sexual organ, mouth, or anus. See id. at § 22.021. The jury found appellant guilty of the lesser-included offense of aggravated sexual assault of a child. After hearing the punishment evidence, the trial court assessed punishment at 35 years imprisonment.
I. The evidence is legally sufficient to support appellant's conviction of aggravated sexual assault of a child.
Appellant argues in his third issue that the evidence is legally insufficient to support his conviction. Appellant makes this argument even though he recognizes the well-established principle that a child sexual abuse victim's uncorroborated testimony is sufficient to support a conviction for aggravated sexual assault.
The elements of aggravated sexual assault of a child are found in Penal Code section 22.021. A person commits the offense if the person intentionally or knowingly “causes the penetration of the anus or sexual organ of a child by any means;” or “causes the penetration of the mouth of a child by the sexual organ of the actor;” and “the victim is younger than 14 years of age.” Tex. Penal Code § 22.021(a)(1)(B), (a)(2)(B). Physical evidence is not necessary to affirm a sexual assault conviction. See Bargas v. State, 252 S.W.3d 876, 888 (Tex. App.—Houston [14th Dist.] 2008, no pet.) (stating physical evidence is not required to affirm a sexual assault conviction when the child victim provides ample testimony to establish that a sexual assault occurred). Instead, the uncorroborated testimony of a child seventeen years of age or younger is sufficient to support a conviction for aggravated sexual assault of a child. Tex. Code. Crim. Proc. art. 38.07; Ryder v. State, 581 S.W.3d 439, 449 (Tex. App.—Houston [14th Dist.] 2019, no pet.). Courts liberally construe the testimony of child sexual abuse victims. Lee v. State, 176 S.W.3d 452, 457 (Tex. App.—Houston [1st Dist.] 2004), aff'd, 206 S.W.3d 620 (Tex. Crim. App. 2006).
Appellant challenges the sufficiency of the evidence on four grounds. First, while recognizing that the complainant's testimony alone is sufficient to support his conviction, appellant emphasizes the fact that complainant “is the only witness to the alleged conduct.” Second, appellant points out the lack of “physical evidence, forensic evidence, or medical evidence” to corroborate the complainant's allegations. Third, appellant points out possible motivations for the complainant to lie about appellant sexually assaulting her. This includes S.W.'s grandmother's alleged desire to gain custody of her grandchildren, the testimony that appellant was the disciplinarian in the apartment, and the complainant's exposure to pornographic images. Fourth, appellant points out that the jury failed to convict him of continuous sexual abuse of a child which he asserts casts doubt on the evidence supporting his conviction of the lesser included offense of aggravated sexual assault of a child. We conclude none of appellant's arguments establishes that, when viewed under the appropriate standard of review, the evidence was legally insufficient to support his conviction.
We turn first to appellant's fourth contention arguing that the jury declining to convict him of continuous sexual assault indicates that the evidence supporting his conviction of the lesser-included offense of aggravated sexual assault of a child is legally insufficient. We disagree that the jury's decision to not convict appellant of the greater charge factors into our analysis of the sufficiency of the evidence supporting the lesser included offense conviction. We instead measure the legal sufficiency of the evidence by the elements as defined by a hypothetically correct jury charge for the lesser included offense. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997); See Castillo v. State, 7 S.W.3d 253, 261 (Tex. App.—Austin 1999, pet. ref'd) (conducting legal sufficiency review of lesser included offense conviction by examining evidence through prism of hypothetically correct charge for lesser included offense).
In his remaining contentions, appellant asks this court to re-weigh the evidence in the case. This we cannot do. Montgomery, 369 S.W.3d at 192. The jury, as the trier of fact, is the ultimate authority to determine the credibility of the witnesses and to weigh the evidence offered during the trial. See Canfield, 429 S.W.3d at 65. Here, the jury heard the complainant provide a detailed account of appellant sexually assaulting her. It also was informed there was no physical or medical evidence corroborating the complainant's account, as well as explanations why that does not eliminate the possibility that a sexual assault occurred. The jury also heard appellant's efforts to create doubt about the complainant's credibility by pointing out possible motivations to lie. The jury still found appellant guilty of aggravated sexual assault. We conclude that, viewing the evidence in the light most favorable to the prosecution, the evidence provided by the complainant is legally sufficiency to support appellant's conviction. See Bargas, 252 S.W.3d at 888 (holding evidence sufficient to sustain conviction for sexual assault despite lack of physical evidence, where child victim provided detailed testimony to establish sexual assault occurred). We overrule appellant's third issue on appeal.
II. Appellant's conviction must be reversed and remanded for a new trial pursuant to Chapter 46B of the Code of Criminal Procedure.
Appellant's supplemental issue asserts that because the trial court has determined he was incompetent at the time of his trial, his conviction must be reversed and his case remanded to the trial court for a new trial pursuant to Chapter 46B of the Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 46B.001 et seq (providing procedures for trial courts to address allegations that a criminal defendant is incompetent). The State agrees with appellant. Because it has been determined that appellant was incompetent at the time of his trial, his “trial is rendered invalid on due-process grounds.” Turner v. State, 570 S.W.3d 250, 262 (Tex. Crim. App. 2018). We sustain appellant's supplemental issue on appeal.
Having sustained appellant's supplemental issue on appeal, we reverse the trial court's judgment and remand the case to the trial court for a new trial pursuant to Chapter 46B of the Code of Criminal Procedure.
1. We did not reach appellant's evidentiary issue at that point in time. Because the trial court has determined that appellant was not competent at the time of his trial, we conclude we need not address appellant's evidentiary issue. See Tex. R. App. P. 47.1.
Jerry Zimmerer, Justice
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Docket No: NO. 14-18-00042-CR
Decided: March 02, 2021
Court: Court of Appeals of Texas, Houston (14th Dist.).
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