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Date: 06-24-2020
Case Style:
JOSE LUIS PONCE V. THE STATE OF TEXAS
Case Number: 01-18-00224-CR
Judge: Sarah Beth Landau
Court: Court of Appeals For The First District of Texas
Plaintiff's Attorney: Not Listed
Defendant's Attorney: Not Listed
Description:
 |
First Court of Appeals
Rachel testified about living with her stepfather, Ponce, between the ages of
four and fourteen. She discussed instances of him inappropriately touching her
when she was as young as five years old. Sometimes the physical contact was with
his fingers or hands, and other times it was with his penis. The indictment, though,
only charged Ponce based on sexual contact with Ponce’s “finger” and “hand.”
Therefore, our review of the record and sufficiency analysis are limited to evidence
of sexual abuse involving Ponce’s fingers and hands.
Rachel’s testimony about Ponce touching her genitals with his fingers and
hands centered on events during a two-year period the family lived on Barbosa
Street.3 Rachel testified she was in fifth and sixth grades while living in that house.
3 The family moved often. They lived on Barbosa Street from 2009 to 2011, when
Rachel was in fifth and sixth grades. In trying to describe what Ponce did when,
Rachel often had to refer to which house they were living in at the time to
3
During those two years, according to Rachel, Ponce would come into her bedroom
at night, unbutton or unzip her sleeping shorts, and sexually assault her: “I
remember his fingers going inside of my vagina, and him just rubbing me.”
One night, while Rachel’s mother was admitted to the maternity ward of a
hospital for the birth of Rachel’s younger brother, Ponce gave Rachel medicine and
said it would “calm [her] down.” The medicine made her feel very drowsy, and she
fell asleep. She testified that she awoke to find that Ponce had unbuttoned her
shorts and had “his hands” “in [her] vagina . . . rubbing . . . back and forth.” She
was unable to stay awake or find the strength to push against him. She fell back
asleep. She awakened twice more, and Ponce was doing the same thing as before.
When she awoke the next time, she pushed him and he stopped.
Rachel testified that, during those two years, she often awoke to find Ponce
above her, her shorts opened, and his fingers in her vagina. It would happen the
“same way” each time, and it would happen “almost every night” during those two
years.
Rachel testified she tried to avoid Ponce and make it more difficult for him
to touch her in her sleep. She would wear shorts that had a small buttonhole and
were difficult to open. She would lay items across her floor, making it harder to
determine what year the memories were from. For this reason, her testimony was
organized by house of residence and grade in school followed by a calculation of
what year it would have been.
4
reach her bed quietly. Despite these efforts, she repeatedly awoke to find Ponce
above her, inserting his fingers into her vagina. Rachel was asked if these incidents
happened “more than once in fifth grade,” and she confirmed they did, and she was
asked if they happened more than once in sixth grade, and, again, she confirmed
they did.
Thus, Rachel testified that Ponce inserted his fingers into her vagina during
the year she was in fifth grade and during the year she was in sixth grade, which,
by necessity, were more than 30 days apart.
Legal Sufficiency of the Evidence
In a single issue, Ponce challenges the legal sufficiency of the evidence on
the element of the offense that requires two acts of sexual abuse 30 or more days
apart.
A. Standard of review
We review sufficiency of the evidence using the standard enunciated in
Jackson v. Virginia, 443 U.S. 307, 318 (1979). See Brooks v. State, 323 S.W.3d
893, 898–912 (Tex. Crim. App. 2010). Under that standard, “the relevant question
is 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.” See Jackson, 443 U.S. at 319; Laster v. State,
275 S.W.3d 512, 517 (Tex. Crim. App. 2009). We consider all reasonable
5
inferences that may be drawn from the evidence in making our determination,
including all direct and circumstantial evidence. Clayton v. State, 235 S.W.3d 772,
778 (Tex. Crim. App. 2007).
Evidence is insufficient in four circumstances: (1) no evidence exists that is
probative of an element of the offense in the record; (2) only a “modicum” of
evidence exists that is probative of an element of the offense; (3) the evidence
conclusively establishes a reasonable doubt; and (4) the alleged acts do not
establish the criminal offense charged. See Jackson, 443 U.S. at 314, 320; Laster,
275 S.W.3d at 517; Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App.
2007).
The jury has the exclusive role of evaluating the facts, the credibility of the
witnesses, and the weight a witness’s testimony should be given. Penagraph v.
State, 623 S.W.2d 341, 343 (Tex. Crim. App. [Panel Op.] 1981); Jaggers v. State,
125 S.W.3d 661, 672 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d). The jury
may choose to believe all, some, or none of a witness’s testimony. See Davis v.
State, 177 S.W.3d 355, 358 (Tex. App.—Houston [1st Dist.] 2005, no pet.). And
the jury alone must reconcile any conflicts in the evidence. Wyatt v. State, 23
S.W.3d 18, 30 (Tex. Crim. App. 2000).
Under the Jackson standard, we defer to the factfinder “to resolve conflicts
in the testimony, to weigh the evidence, and to draw reasonable inferences from
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basic facts to ultimate facts.” Jackson, 443 U.S. at 319; Clayton, 235 S.W.3d at
778. If there are conflicts in the evidence, we must presume the factfinder resolved
the conflicts in favor of the verdict and defer to that determination, as long as it is
rational. See Jackson, 443 U.S. at 326; Penagraph, 623 S.W.2d at 343 (“A jury is
entitled to accept one version of the facts and reject another or reject any of a
witness’[s] testimony.”). Contradictory evidence will not diminish the legal
sufficiency of the evidence that supports the verdict. See McDonald v. State, 462
S.W.2d 40, 41 (Tex. Crim. App. 1970). If the evidence is insufficient, we must
reverse and enter an order of acquittal. See Tibbs v. Florida, 457 U.S. 31, 41
(1982).
B. Legally sufficient evidence of two or more qualifying acts 30 or more
days apart
A person commits the offense of continuous sexual abuse of a child if the
person engages in two or more acts of sexual abuse, as defined by the Penal Code,
during a period of 30 or more days, while the actor is 17 years of age or older and
the child is younger than 14 years of age. TEX. PENAL CODE § 21.02(b) (listing
elements of offense); § 21.02(c) (listing acts that statutorily qualify as “act of
sexual abuse”). One of the qualifying acts of sexual abuse is sexual assault, which
criminalizes intentionally or knowingly causing the penetration of the sexual organ
of a child by any means. Id. § 21.02(c)(3) (listing sexual assault as qualifying act
of sexual abuse); § 22.011(a)(2)(A) (criminalizing sexual abuse and listing
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elements of offense); see Gonzalez v. State, 337 S.W.3d 473, 482 (Tex. App.—
Houston [1st Dist.] 2011, pet. ref’d) (discussing elements of offense).
Rachel, herself, testified that Ponce penetrated her vagina with his fingers
more than once during her fifth-grade year and more than once during her sixthgrade year. Her testimony, without corroboration, provides legally sufficient
evidence of two qualifying acts of sexual assault that occurred 30 or more days
apart to support the jury’s verdict. See Garcia v. State, 563 S.W.2d 925, 928 (Tex.
Crim. App. 1978) (testimony of sexual-assault complainant, alone, is sufficient to
prove offense). Additional corroboration testimony or physical evidence was not
required to meet the legal-sufficiency threshold. See Pena v. State, 441 S.W.3d
635, 641 (Tex. App.—Houston [1st Dist.] 2014, pet. ref’d).
Ponce argues that Rachel’s testimony is vague and “incredible,” but neither
criticism diminishes the legal sufficiency of her testimony. See Smith v. State, 340
S.W.3d 41, 49 (Tex. App.—Houston [1st Dist.] 2011, no pet.) (in appeal of
conviction for continuous sexual abuse of child, holding that vagueness as to dates
are for the jury to reconcile and do not reduce the complainant’s testimony to legal
insufficiency); Mosley v. State, 355 S.W.3d 59, 70–71 (Tex. App.—Houston [1st
Dist.] 2010, pet. ref’d) (holding that jury is exclusive judge of facts and appellate
courts must defer to jury’s factual determinations because jury hears witness’s
testimony live and is in best position to judge witness’s credibility).
8
Ponce next notes that Rachel discussed one qualifying event in detail but
failed to describe any other specific event in the same detail. He challenges that
Rachel’s failure to testify with clarity about “two distinct and articulate facts”
causes her testimony to be legally insufficient. Again, we cannot agree. The jury
does not have to agree on the exact dates of abuse or on the specific acts
committed, only that there were two qualifying acts of sexual abuse during a
period of 30 or more days in duration. See Smith, 340 S.W.3d at 48. The jury
received testimony from Rachel that Ponce inserted his fingers into her vagina
multiple times while she was in fifth grade and multiple times the following year
when she was in sixth grade. This testimony meets the legal-sufficiency standard.
We overrule Ponce’s sole issue.
Outcome: We affirm.
Plaintiff's Experts:
Defendant's Experts:
Comments: