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Date: 03-23-2017

Case Style:

John Christopher Cortes v. The State of Texas

Case Number: 05-15-01404-CR

Judge: Ada Brown

Court: In The Court of Appeals Fifth District of Texas at Dallas

Plaintiff's Attorney:

John R. Rolater
Emily Johnson-Liu

Defendant's Attorney:

William L. Schultz

Description: Following a jury trial, appellant John Christopher Cortes appeals his conviction for
indecency with a child. In a single issue, appellant contends the evidence is legally insufficient
to prove he was the person who committed the offense because the complainant could not
identify him in court. Because there was other evidence sufficient to prove appellant committed
the crime, we affirm the trial court’s judgment.
Appellant was charged under section 21.11 of the penal code with indecency with a child
by sexual contact. See TEX. PENAL CODE ANN. § 21.11 (West 2011). The indictment alleged
appellant intentionally and knowingly, with the intent to arouse and gratify the sexual desire of
any person, engaged in sexual contact by touching the genitals of A.J.S., a child younger than
seventeen years of age, with appellant’s hand. A.J.S. was the son of appellant’s fiancée.
At trial, A.J.S.’s maternal grandmother testified that her daughter was A.J.S.’s mother.
The grandmother testified that around September 2012, her daughter moved in with a man
named John Cortes. A.J.S. lived with them too. A.J.S.’s grandmother identified appellant in
court as John Cortes. On December 1, 2012, the grandmother received a frantic call from her
daughter asking her to pick up A.J.S. at her apartment. A.J.S.’s mother indicated that A.J.S. was
not safe there. When A.J.S.’s grandmother went to her daughter’s apartment to pick up A.J.S.,
he was there with appellant.
A.J.S.’s mother testified that in October 2012, she moved into an apartment in McKinney
with John Cortes. She identified appellant in court as John Cortes. A.J.S. also lived with them;
he was six years old at the time. A.J.S.’s mother and appellant soon got engaged. On December
1, 2012, the mother went to a friend’s house in Dallas, and A.J.S. stayed home with appellant.
While she was in Dallas, A.J.S.’s mother learned things that made her concerned for her son’s
safety and called her mother to have her pick A.J.S. up. A.J.S.’s mother returned to McKinney
on the morning of December 3. She met A.J.S. at the apartment to talk to him about what had
happened. A.J.S. initially told her he could not tell her the secret. His mother asked him more
questions, and A.J.S. told her that “John had touched him on his pee-pee” with his hand. The
mother, “angry and yelling,” confronted appellant, who was also in the apartment, and told him
to leave. A.J.S. said he did not want John to leave and tried to say the incident had not
happened. After things calmed down, A.J.S.’s mother spoke to her son again. The prosecutor
asked her at trial, “[D]id he tell you again that the Defendant had touched him on his pee-pee?”
A.J.S.’s mother responded affirmatively.
At the time of trial, A.J.S. was nine years old and in the third grade. He testified that a
couple of years earlier, someone touched his body in a way they should not have. A.J.S. said
that the name of the person who did it was John, and that John touched him on his “private,”
which A.J.S. described as what he uses to go to the restroom. John touched A.J.S. with his hand
and moved his hand. A.J.S. indicated that the touching happened more than once and happened
“a lot.” No one else was ever home when it happened. John told him never to tell anyone about
the touching. A.J.S. testified that he did not remember what town he was living in when this
happened, but it did happen when he was living in the apartment with his mom and John. No
one else was living in the apartment at the time.
The prosecutor asked A.J.S. if he saw John in the courtroom. The record reflects that
A.J.S. shrugged. The prosecutor said he needed A.J.S. to answer truthfully and asked him again
if he saw John in the courtroom. A.J.S. replied, “I don’t know.” The prosecutor then pointed out
five chairs in the courtroom and asked A.J.S. if John was in any of the chairs. Again A.J.S.
answered, “I don’t know.” A.J.S. then said it was kind of scary to talk about what had happened.
Appellant testified in his defense. He stated that he was involved with A.J.S.’s mother
and A.J.S. from September to the beginning of December in 2012. Appellant denied the
allegations that he touched A.J.S. inappropriately.
In his sole issue, appellant maintains that the evidence is insufficient to support his
conviction because A.J.S. could not identify him in the courtroom. When reviewing the
sufficiency of the evidence, we consider all of the evidence in the light most favorable to the
verdict to determine whether, based on that evidence and the reasonable inferences therefrom, a
factfinder was rationally justified in finding guilt beyond a reasonable doubt. Temple v. State,
390 S.W.3d 341, 360 (Tex. Crim. App. 2013); see Jackson v. Virginia, 443 U.S. 307, 318–19
(1979). The testimony of child victim alone is sufficient to support a conviction for indecency
with a child. TEX. CODE CRIM. PROC. ANN. art. 38.07 (West Supp. 2016). In addition, the
testimony of an outcry witness alone is sufficient to support a conviction. Rodriguez v. State,
819 S.W.2d 871, 873–74 (Tex. Crim. App. 1991).
An uncertain in-court identification of an accused as the perpetrator of a crime, standing
alone, will not support a guilty verdict. Anderson v. State, 813 S.W.2d 177, 179 (Tex. App.—
Dallas 1991, no pet.). However, if other evidence corroborates an equivocal identification, the
evidence will not be considered insufficient. Id.; see also Purkey v. State, 656 S.W.2d 519, 520
(Tex. App.—Beaumont 1983, pet. ref’d) (although no witness identified defendant in court
beyond reference to his name, there could be no doubt in juror’s minds who witnesses were
referring to). In such a case, the complainant’s failure to identify the defendant in court goes
only to the weight and credibility of the witness’s testimony, of which the jury is the sole judge.
Meeks v. State, 897 S.W.2d 950, 955 (Tex. App.—Fort Worth 1995, no pet.); Anderson, 813
S.W.2d at 179.
Although A.J.S. was unable or unwilling to identify appellant in court as the person
named “John” he testified about, the evidence is sufficient to prove appellant’s identity as the
person who committed indecency with a child. The record reflects that both A.J.S.’s mother and
grandmother identified appellant in court as John Cortes. A.J.S. testified that John touched him
on his pee-pee. Appellant was not a stranger to A.J.S. Appellant was engaged to A.J.S.’s
mother, and the three of them lived together for a time. A.J.S. testified that the incident
happened when he was living with his mom and John. A.J.S.’s failure to identify appellant in
court went only to the child’s credibility, and we defer to the jury’s credibility determinations.
Further, the outcry testimony of A.J.S.’s mother alone is sufficient to support the conviction.
A.J.S.’s mother testified that A.J.S. told her that “the Defendant” had touched him on his pee-pee
with his hand. We overrule appellant’s sole issue.

Outcome:

< We affirm the trial court’s judgment. >

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