Jeremy Alexander Bautista v. The State of Texas

Houston, TX - Criminal defense attorney represented Jeremy Alexander Bautista with an Aggravated Sexual Assault charge.

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 In an unpublished abatement 2

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.

BACKGROUND

Having provided an in-depth summary of the facts in the unpublished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

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. 47.1.3

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 (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 reevaluating 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 4

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 lesserincluded offense of aggravated sexual assault of a child. After hearing the

punishment evidence, the trial court assessed punishment at 35 years

imprisonment.

ANALYSIS

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 5

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 6

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 7

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.