### TEXA S C OU R T OF A PPEAL S, THIR D DIST R ICT , AT AU STIN

NO. 03- 07 -00 049 -CR

Ra ym ond Sa laz ar , A ppe lla nt

v. The State of Texas , Appellee

F ROM THE DISTRICT CO URT OF TRAVIS COUNTY , 390TH JUDICIAL DISTRICT NO. D-1- DC-20 05- 3004 13 , HO NORAB LE MI CHAEL J. M CCORM ICK , JUDGE PRESIDI NG

M E M O R

A N D U M O P I N I O N Appellant Ray

mond Salazar appe als his convictio n for indec ency with a child by sexual contact. See Tex. Penal C ode Ann. § 21.01 (West Supp. 2008), § 21.11(a)(1) , (2) (We st 2 003) . A ft e r a

pp e lla nt’ s p le a of no t g uil ty , th e jur

y fo un d h im guil ty

and a sse sse d h is punis hme nt at se ve n y e ars ’ i mpr iso nme nt.
P OIN T OF ER RO R Appellant adva

nces one point of err or. He challeng es the fa ctual su ff i ciency of t h e evide nce to sustain his conviction for indece ncy

with a child by

sexual contact. No c hallen ge is a dd re sse d to the l egal s uf

fi c ie nc y of the e vid e nc e to s up po rt

the c on vic tio n. On

dir e c t a pp e a l a
c ourt mus t be g in i ts f

a c tua l su ff

ic ie nc y re vie w w iththe a ssu

mpt ion that th e evi dence isJ ac k so n v . V irg ini a , 443 U.S. 307 (1979). 1 2 leg ally sufficie nt under Jack

son . W ats on v . S tate , 204 S.W .3d 404, 406 (Tex. Crim. App. 2006); 1 Cle wis v. Stat e , 9 22 S.W. 2d 12 6, 13 3 ( Te x. Cr im. Ap p. 19 96 ); Ke yv . S tat e , 88 S.W .3d 672, 677 (Tex. App.—Ty ler 2002, pe t. ref’ d).
BACK GR OUND

Anna Allen, a

direc tor of the “ Pebble Project,” testified t h at her or g anization
was e stablished to preve nt child abuse. On A pril 3, 20 0 0 , h er gro u p was pre senting a prog ram at the B urnet Middle School in Austin involvi ng skits on how to handle a bully , strang er da ng er, and per sonal issues (such a s sexual abuse). Af ter the skits, forms wer e passed out to the students that included a pla ce to c heck if the student wante d to talk to a volunteer of the “Pebble Proje ct.” R.S., t he complaina

nt in this case , was a l m ost twelve y ear s old at the time. She chec ked the f

orm hande d out and was inter viewed at the school by

Anna Allen. I n the conve rsation, R.S. bega n to “shake and cr

y ” ac cordingto Allen. R.S. re veale d to A llen that appellant Salazar was he r s te pf a the r, and he ha d be e n to uc hin g he r p ri vate pa rt s si nc e sh e wa s si x or s e ve n y e ars old . R. S. also repor ted that on t h e p re v i o u s Saturday , April 1, 2000, she wa s sleeping on the couc h in the living room whe n she aw akene d to find her shorts pulled down, and she “pushed something awa y .” R.S. t old Allen that she had never told a ny one bef ore be cause “it would ruin eve ry thing.” Allen filed
a re port with the Child P rotec tive Service s (her einaf ter CPS). Te ri Re y no lds F re e man, a

CPS in ve sti gator , test if ie d th a t sh e int e rv ie we d R. S.
a t sc ho ol o n Apr il 4 , 2 00 0, and me t w ithme mbe rs of R .S.’ s f a mil y . F re e man in sti tut e d a “ sa fe tySuz anne Sala zar later testified that on April 1, 2000, they had a first birthday party at a pa rk 2 for he r daug hter by

appellant. R.S. in her testimony acknow ledg ed that she onc e told her mother that appellant “ focuse d” on his own daug hter a nd that she fe lt unloved. Th is m a tte r w a s e xplor e d in de ta il at th e pe na lty

sta g e of the tr ia l. 3 3 plan” r equiring appellant to leave the home, a nd have no unsupe rvised co n t ac t with the children—R.S., her young er br other, a nd appellant’ s own child. Austin police detec tive J ohnny McMiller contacted R.S .’s m other, S uzanne Salazar, on April 11 and 12, 2000. Mrs. Salazar expressed he r conc ern ove r the fa mily ’s financ ial situation wi th h e r h

us ba nd liv inge lse wh e re . M rs . Sa la zar inf or me d th e off

ice r that R. S. h a d b e e n r e c e ntl y disciplined over a

n incident and wa s ang ry with appellant, and that if the all ege d touching
occur red o n Ap ri l 1, 2000, it could not have happe ned bec ause R.S. spent that nig ht at her 2 g randmother ’s house. She fur ther told Dete ctive McMiller that R.S . had ch ang ed her mind. Detec tive McMiller fe lt that Suz anne w as “i n d en i al ” and c oncer ned that the situation was
un de rm ini nghe r m arr ia g e to a pp e lla nt. On April 17, 2000, R.S. was taken to the Child Advoca cy Center i n Au s t i n for a videotaped inter

view. In t hat interview , R.S. st ated that she thought that she only drea med about the sexual contact. Af

ter the inter

view, Detec tive McMiller met with an assistant district attorney who dec lined under the circ umstances to prose cute ap p el l ant. Teri Fre eman c onfer red w ith her supervisor, a

nd appellant wa s allowed to re turn home. The c ase w as closed. Ove r f o u r a n d a h al f y ea rs l at er , o nNo v em b er 2 9 , 2 0 0 6 , J en n i fe r P en a, an i n v es t i gator wi th C PS f

or on e y e ar, wa s a ssi g ne d a

c a se inv olv ingM. , R. S.’ s th e n f ourt e e n- y e ar- old

br oth e r. Th is i n qu i r y a p p a r e n t l y c o n c e r n e d a p h y s i c a l a s s a

u l tb y a p p e l l an tu p o nM. During this investigation,

34

Pena dec ided to interview R.S. about her ear lier alleg ations in 2000. Pena testified that R.S., now six teen y ear s old, be came nervous but admitted that her e arlier alleg ations were true. R.S. reporte d that her mother

had ea rlier told her t o l i e. R
. S. later g ave a videotaped inter

view at the Child’s Advoca cy Center relating her alleg ations. The case wa s reope ned. An indictment wa s returne d on Marc h 17, 2005. On J uly

28, 2006, R.S. filed an aff idavit of non-prose cution. Nonethele ss the trial
was c onducted on Oc tober 16, 17, 18, a nd 19, 2006. At trial, the now eig hteen- y ear -old R.S. testi fied that she w as in hig h school and lived with her mother and the mother’s boy friend, her brother, and her half-sister
. She did not know wher e her ow n biologica l father

was, that he had “be en in and out of jail f or not pay ing c hild support.” She acknow ledg ed that appe llant came into her life when she was two or t hree y ear s old and later marrie d h e r m o t h e r . T h e “ t o u c h i n g ” o f h e r p r i v a t e p art s b e g anw h e ns h e w a s s i x o r s e v e ny e ar s o l d
. “ It didn’t happen of

ten. J ust every

once in a while.” R.S. stated t hat i t occur red a bout ten times, and stopped afte r she r eporte d it at school to the Pebble Project when she was almost twe lve y ear s old. R.S. di d not remembe r the fir st touching but re lated thre e i n ci d ents that she could r eca ll. I n one inc ide nt, date un kn ow n, R.S. te sti fi e d tha t sh e he ard a no ise and wo ke up , a

nd tha t a pp e lla nt g ot i nto a twin bed with her next to the wall while s he face d the ot her way
. R.S. related that appe llant put his arm aro un d h e r a

nd tou c he d th e low e r a

re a —th e pr iva

te pa rt of he r b od y . T he re c or d r e fl e c ts: Q. What do y ou use that private are a for ? A
. Se x. Q. Okay , is it also called a va g ina? A. Ye s.5 R.S. re me mbe re d th a t she was we ari ngpa nti e s and pa jama s. She c ou ld n ot r e c a ll whether appellant touche d her unde r her clothing or

on the outside of such clothing. She stated that he “just rubbe d it. There w as no inserting .” She thoug ht it lasted ten minutes but was not sure.

When reminded, R.S
. also rec alled anothe r incident, some time close r to her outc ry at school. S h e s t at ed that one nig ht she and he r brother wer e slee ping on dif

fer ent couc hes in the living room whe n she suddenly awa kened, a nd found appe llant standing r ight in fr ont of her. She was “ shocked,” but appellant turne d and lef t the room. When directly asked, R.S. said appe llant was actua lly kneelingat the couc h, and whe n he lef t, she then found he r shorts wer e unbuttoned. Upon beingreminded a g ain, R.S. tol d of anothe r incident whe n she and he r brother
wer e play ing vide o g ames in the liv i n g room and he r mother wa s in the kitchen. She desc ribed
a pp e lla nt a s b e ing“ un de r t

he c ov e rs .” She re la te d th a t sh e g ot c old and a pp e lla nt c ov e re d h e r w ith bla nk e ts an d in the pr oc e ss tou c he d he r pr ivate pa rt s. Whe n a sk e d if

sh e tol d h e r m oth e r a

bo ut t he se incidents, R.S. st ated “ sometimes,” but she re trac ted that, and then she denied informing her mother beca use she would not have believed he r.

R. S. te s ti f

ie d th a t a f te r h e r 2 0 0 0 o u tc r

y a t s c h o o l, h e r r e lati o n s h ip w it h her mother did not go we ll. W hen R.S. insis ted that she wa s being truthful, her mother told her to lie. She kn e w t h a t h e r m o t h e r h a d t h r e e c h i l dr e n an d b e l i e v e d h e r m o t h e r d i d n o t w an t t o b r e a k u p t h e f a m i l y. R.S. di d not want to alienate her mother and stated on the 2000 videotape that she drea med the
se xua l c on ta c t. A

pp e lla nt r e tur ne d to the ho me and

no fu rt he r i nc ide nts oc c ur

re d. Ov e r the y e a rs , R.S. bega n to reg ard a

ppellant as a

fathe r fig ure. In November 2004, R
. S
. b ec am e ang ry about6

appellant be ating her br other, a nd when a sked, she acknow ledg ed that her orig inal acc usations
wer e true . At this ti me, she fe lt that her mother ha d more c onfi d ence in her to tell the truth about the past incidents.

When asked at trial why she had signe d the af fidavit of non-pr osecution which he r mot he r h a d o bta ine d f

ro m de fe ns e c ouns e l, R .S. respo nd ed, “ it’ s b e e n tw o y e ars havin g CPS, the law, the ra

py , I jus t c an’ t ta

ke it any mor e .” R.S. a g re e d, ho we ve r, that he r a c c us a tio ns we re sti ll tr uth fu l. Wh e n a sk e d if

sh e ha d b een re g re tti ngthe tr ia l, R .S. re pli e d, “ Idid n’ t w ant my

sis te r t o g row up like me w ithout a dad.”

Suz anne Salazar, R.S.’s mother, wa s called by the State as a

witness. She testified that she loved he r daug hter a nd appe l l an t , h er husband, and w as shocke d and conf used whe n the alleg ations surfac ed in April 2000. She related that R.S. made no outcry to her a nd would not give he r a ny de ta ils of wh a t ha d o c c ur

re d. She ha d in qu ir e d o f R .S. if it c ou ld have be e n so me on e e lse or if R.S. had drea

med something happene d, but she had g otten no answe rs. She had not intended to influence R.S. S he ac knowledg ed that she later told Dete ctive McMiller that R.S. had c hang ed her mi n d
. T h is w a s b e f

o r e th e f ir s t v id e o ta

p e w a s ma d e in

w h ic h R. S. r e late d

a dr e a m s e qu e n c e. Mrs. Salazar re ported that a ppellant left their home ag ain in N ovember 2004 when the case was re opened. She was still leg ally marrie d to appellant bec ause of the hig h cost of divorc e. She, howe ver, did no t so c ia lize wi th h im.

Dr . Wil liam Ca

rt e r, of W aco, esta

bli sh e d h is q

ua lif ic a tio ns a s an e xpe rt

in c hil d sexual abuse ca ses. I n essenc e, Dr . Carter testified that R.S.’s actions including r eca ntation were ty pical of c hildren who have bee n victims of sex ual abuse
.7 Monica Ga

rcia , appellant’ s sister, testified for the defe nse that appellant was a loving
and c ari ng fathe r to R.S. , R.S. ’s br oth e r, and his ow n d a

ug hte r. She de sc ri be d a

pp e lla nt c omi ngto her house and cr

y ing ove r R .S.’s alleg ations. Suz anne Salazar was called as de fense witness without any announce ment that the defense was seeking further cross-e x amination. Much of he r testimony
cover ed g round alre ady

explored. Mrs. Salazar testified that s h e h ad t o believe “ what she [R.S.] say s.” She also believed appellant who had denied the offe nse. I t was a “50-50” situation with her. Whe n a sk e d if

R.S. ha d p re vio us ly

lie d to he r, Mr s. Sa la zar re sp on de d, “we’r e ta lki nga bo ut a teena g er.”
F ACTUAL SUF F ICIENCY

The de termin at i o n o f t he leg al and f actua l sufficienc y

of evide nce r equire s implementation of separ ate a nd distinct standards. Las ite r v . S tat e , 2 75 S.W. 3d

51 2, 5 19 (T e x. Cr im. Ap p. 20 09 ). “ Court s and lit ig ants should not

combine their le g al an d fa ct u al analy sis.” Id. (empha sis added).

A ver dict [j udg ment] m ust be supported by fac tually sufficie nt evidence as we ll as le g a lly su ff ic ie nt e vid e nc e . “ B ut u

nli ke a le g a l su ff

ic ie nc y re view , w hic h is a

fe de ra l du e pr oc e ss
re qu ir e me nt, a

fa c tua l su ff

ic ie nc y re vie w i s a

c re a tur e of

state law. On

dir e c t a pp e a l, a c ourt mus t beg in its factual suff

iciency revie w with the assumption that the evidenc e is leg ally sufficie nt under Jack son [ v. Vi rg ini a , 443 U.S. 307 (1979)].” Id.

He re , a pp e lla nt c ha lle ng e s on ly the fa c tua l su ff ic ie nc y of the e vid e nc e to su st ain his conviction, so we assume that t h ere is leg ally sufficie nt evidence to support his conviction. Ev ide nc e that is le g a lly

su ff ic ie nt, ho we ve r, c an b e de e me d f a c tua lly ins uf fi c ie nt i n tw o w a y s:The “ two way s” in which e vidence ca n be fa ctually insufficient is fre quently descr ibed 4 using the word “verdict,” which is corr ect only if there has bee n a jury

trial. “A ‘ verdic t’ is a written decla ration by a jury

of its decision of the issue submitted to it in t he ca se.” Te x . Code Crim. Proc. Ann. ar t. 37.01 (West 2006). I n a non-jury or benc h trial, the trial cour t’s decision is ref

err ed to as a “judg ment.” 8 (1) wh en t h e evidenc e supporting the ver dict is so weak that the ve rdict see ms clear ly wrongand manifestly

unjust, and (2) whe n the supporting evidenc e is out weig hed by the g reat weight and pr e po nd e ra

nc e of c on tr ary e vid e nc e so a s to re nd e r the ve rd ic t cle arl y wr on g and manif e stl y un jus t. Gr ott i v . S tat e , 2 73 S.W. 3d

27 3, 28 3 ( Te x. Cr im. Ap p. 20 08 ); Ro be rts v . S tat e , 220 S.W .3d 521, 524 (T e x. Cr im. Ap p. 20 07 ); W atson , 204 S.W .3d at 414-15. 4 A c o u rt o f ap p ea l s o n d i re ct ap p ea l m u s t co n s i d er i n a fa ct u al s u ff i ci en cy ch al l en ge
a ll o f t he e vid e nc e in a

ne utr a l li g ht r a the r t

ha n ( a s in a le g a l su ff

ic ie nc y review ) in the lig ht m os t favor able to the verdic t or judgme nt. Ro be rts , 220 S.W. 3d a t 52 4; W

atson , 204 S.W .3d at 414-15. Al tho ug h a

n a pp e llate c ourt

ha s the a bil ity to se c on d- g ue ss the jur y to a lim ite d d e g re e , th e fa c tua lsufficie ncy

revie w should still be def ere ntial, with a high le vel of skepticism about the jury ’s ver dict require d befor e a r ever sal ca n occur . Gr ott i , 2 73 S.W. 3d a t 28 3; Ma rsh all v . S

tat e , 210 S.W .3d 618, 62 5 ( Te x. Cr im. Ap p. 20 06 ); W atson , 2 04 S .W .3 d at 417; Cai n v . S tat e , 958 S.W .2d 407, 410 (Tex. Crim. App. 1997).

I n a fac tual sufficie ncy analy sis, it must be reme mbere d that the jury is the trier of f act and judge of the credibility of witnesses. See Tex. Code Crim. P roc. A nn. art. 36.13 (West 2007),
art . 3 8. 04 (We st 1 97 9) ; Sa nte lla n v . S tat e , 939 S.W. 2d

15 5, 16 4 ( Te x. Cr im. Ap p. 19 97 ). Ap pe llate courts should be on guard not to su b m i t t h ei r own judg ment in these matters f or that of the9

trier of fac t. Se e id
. An appe llate cour t is not free to ove rride a

verdic t simpl y

beca use it disag ree s with it. Lasit er , 2 75 S.W. 3d a t 51 8; Cai n , 958 S.W .2d at 407. An a pp e llate c ourt

mus t f ir st b e a ble to s ay , w ithso me ob je c tiv e bas is i n the re cord, that the g reat weig ht and prepondera nce of evidenc e contradicts the jury ’s ver dict befor e it is j ustified in ex ercising its appe llate fa ct jurisdiction to order a new tria l. Gr ott i , 273 S.W .3d at 2 8 3 (c i t i n g W

atson , 204 S.W .3d at 417). A r ever sal for f actua l insufficienc y

cannot oc cur when the g re at er weig ht and pre pondera nce of evidenc e ac tually

favor s the conviction. Ro be rts , 220 S.W .3d at 524.

Her e, appe llant does not point to any sharply diverse o r ev en conflicting e vidence that un de rm ine s the jur

y ’s ve rd ic t. Ap pe lla

nt c a lle d h is s ist e r a

nd his wi fe , R. S.’ s mo the r, a s d e fe ns e witnes ses. Their te stimony did not present a de fense or in eff ect c ontradict the State’ s case . Appellant’s f

actua l insufficienc y

claim must rest primarily upon the State’s evide nce be ing so w eak that the jury ’s ver dict was c lear ly wrongand manife stly

unjust
. Appellant’s only attack upon the evidenc e being fac tually insufficient is to question the cre dibilit y of R.S. The jury

knew that R.S.’s first outcry

was at school and not to a family member, that her r eca ntation came a fter a

ppellant left the home and her mot her talked to her, that her reasse rtion of t he charg es came over four y ear s later when a C.P.S . assault investig ation involved appellant a nd her br other, a

nd that she had sig ned an aff idavit of non-prose cution. Throug hout the trial R.S. maintained that she wa s being truthful about the sexua l abuse she had endur ed. The jury was the judg e of the cre dibilit y of the witnesse s and the weig ht to be g iven to thei r t es timony . The jury was fr ee to a cce pt or reje ct all or a ny part of a witness’s testimony . I t is obvious t hat the jury acc epted R.S.’s ve rsion of events. More over, the10

uncorr oborate d testimony of a c hild victim of a sexual a ssault is sufficient to sustain a conviction. See Tex. Code Crim. P roc. A nn. art. 38.07 (West 2005).

Viewingall of the e vidence in a neutra l light, we f ind the jury

was rationally

justified in f ind inga pp e lla nt guil ty of se xua l ass a

ult
. Th e ve rd ic t w a s n ot c le arl y wr on g or manif e stl y un jus t. See W atson , 204 S.W .3d at 417. Appellant’ s sole point of err or is overr uled. The judg ment of convic tion is affirmed.

______________________ _ _ _ _ _ _ _ ______________ J ohn F. Onion, Jr., J ustice Be fore J ustices Patterson, Pember ton and Onion* Affir med Filed: September

10, 2009 Do No t Pu

bli sh

* Be fore J ohn F. Onion, J r., Presiding J udg e (re tired), Texas Court of Criminal Appeals, sitting by assig nment. See Tex. Gov’t Code Ann. § 74.003(b) ( West 2005).