In th e sa m e trial, appellant wa s convicted of the agg rava ted sexual assa

ult o f his step-grandson . T hat convictio n has 1 been af f irm ed this sam e day

in Cause No. 11 -07 -00 38 2-CR. Opinion filed Jan uary21 , 2 010



### In The 

# Eleven th Court of Appeals

____________ 

### No. 1 1- 07 -0 03 81 -CR

____ ____ __ ISAB EL ES PIN OZ A, Ap pellant

V.
STA TE OF TEX AS , A ppellee

On App eal from the 106th Distric t Court
Dawson County, Texas
Trial Court Cause No. 06-6493

M E M O R

A N D U M O P I N I O N Th e jur y c on vic te d I sa

be l Es pin oza of ind e c e nc y wi th his g ra nd da ug hte r and a ss ess ed his punis hme nt at c on fi ne me nt f or te n y e ars
. We a ff

ir m. 1 Appellant conte nds that the evidenc e is both leg ally and fac tually insufficient to support the convic ti o n
. Sp e c if

ic a ll y , a p p e ll an t a r g u e s th a t t

h e r e “ is s im

p ly n o e v id e n c e f

r o m wh ic h th e jur

y could convict a

ppellant.”2

I n order to determine if the evidenc e is leg ally sufficie nt, the appellate court re views all of the evidenc e in the lig ht most favor able to the verdict and determines whether any rational trier of fac t could have fo u nd the essential e lements of the c rime beyond a re asonable doubt. Jack son v. Vi rg ini a , 4 43 U. S. 3 07 , 3 19 (1 97 9) ; Las te r v . S tate , 275 S.W .3d 512, 517-18 (Te x . C ri m
. Ap p. 20 09 ); J ac k so n v . S tate , 17 S.W .3d 664, 667 (Tex. Crim. App. 2000). To deter mine if the evide nce is factua lly

sufficie nt, the appellate court re views all of the e vidence in a neutra l light. Laster , 275 S.W .3d at 519; W

ats on v . S tate , 204 S.W. 3d 40 4, 41 4 (T e x. Cr im. Ap p. 20 06 ); J oh ns on v . S

tate , 23 S.W .3d 1, 10-11 (Tex

. Crim. App. 2000); Cai n v . S tate , 958 S.W .2d 404, 407-08 (Te x . Crim. App. 19 97 ); Cle wis v . S

tate , 922 S.W .2d 126, 129 (Tex. Crim. App. 1996). Then, the r ev i ew i n g court deter mines whether

the evidence supporting the verdic t is so weak that the ve rdict is clea rly wrong and manife stly

unjust or whether

the ver dict is ag ainst th e gre at weig ht and pre pondera nce of the conflictingevidenc e. W

atson , 2 04 S.W. 3d

a t 41 4- 15 ; Johnson , 23 S.W .3d at 10-11. The re cord r efle cts that Bonnie Acosta was a counselor for the L amesa I ndepende nt School D i s t r i c t

. A c o s t a

t e s t i f i e d t h a te a c h v i c t i m t o l d h e r a b o u t a p p e l l an t ’ s s e x u a l a dv an c e s an d a c t i v i t y. Appellant’s g randda

ug hter told her that appellant had touc hed her on her br easts and in he r cr otch

are a and showed her the “hickey s” appellant had given her when he kis sed her. The g randda ug hter stated that appe llant usually touched he r whe n her g randmother was at work. Acosta state d that she met with the vi ctim six times. Acosta testified that the vi ctim never

rec anted he r cla im of sexual contact. Afte r Ac osta filed her repo rt , the victim came to se e her beca use the victim was upse t that she would be plac ed in foster car e. Patricia Ann Sala zar, a sexual assault nurse examiner with the pediatric s unit at Texas Tech Phy sic ians , te sti fi e d th a t sh e pe rf or me d a se xua l a ssa

ult e xami nat io n on the v ic timin t his a pp e a l. The victim told Salazar that appellant ha d told her that he w as g oing to ha ve “f ull sex ” with both her and her fema le cousin whe n the g irls turned twe l ve. The victim told S alazar that appellant had touched her “private.” The victim did not mention any thing a bout hickey s to her. Salazar f ound a “skin tag ” at the ba se of the vic tim’s hy men. Whil e the skin tag was “ abnorma l” and a “suspicious finding ” in light of

the history , Salazar could not dete rmine if the skin tagwas fr om sex ual abuse

. Ap pe lla nt t e sti fi e d in

his ow n be ha lf that he ha d ne ve r se xua lly a bu se d eithe r of

the vic tim s or any other c hild. Appellant st ated that both victims wer e angr y with him and had orig inally blamed3

his son (the fathe r of this victim in t his appea l and the stepfather of the victim in C ause N o. 11-07- 00381-CR). The victim in this appeal testified a s a witness for appellant. She stated she was ly ing w hen she ac cused a

ppellant of putt ing hic key s on her a nd touching her. She did not re member te lling Salazar that appe llant had touched her. She stated that she lied beca use she did not want her

fathe r (appe llant’s son) to marry the other vic tim’s mother. Th e a pp e llate c ourt re vie ws the fa c tf ind e r’ s w e ig hin g of

the e vid e nc e and

c ann ot s ub sti tut e its judgment for

that of t he factfinder

. Cai n , 9 58 S.W. 2d a t 40 7; Cle wis ; 922 S.W .2d at 133. Due d e f e r e n c e mu s t b e g iv e n to th e f a c tf in d e r ’ s d e te r

mi n a ti o n , p arti c u la

r ly c o n c e r n in g th e w e ig ht and

cre dibilit y

of the e vidence

. Johnson , 2 3 S. W.3 d a t 9; J on es v . S tate , 94 4 S.W. 2d

64 2 ( Te x. Cr im. App. 1996). The jury , as the finde r of f act, is the sole judg e of the weig ht and cr edibility of the witnesses’ testimony . T EX
. C ODE C R IM . P R OC . ANN . art. 36.13 (V ernon 2007) , art. 38.04 (V ernon 1979). This court ha s the authority to disag ree with the factfinder ’s determination “only when the

rec ord cle ar ly

in d ic a te s s u c h a

s te p is n e c e s s ar

y to ar r e s t t h e o c c u r r e n c e o f a ma n if e s t i n ju s tic e.” Johnson , 23 S.W .3d at 9. While the verdict is affo rd ed l es s defe renc e under a fa ctual suff

iciency revie w, the appe llate cour t is n o t free to over

ride the ve rdict simply

beca use the a ppellate c ourt disag ree s with it. Laster , 275 S.W .3d at 520. Acosta a nd Salazar both testified t hat t he victim repor ted inappropr iate sexual behavior by appellant towa

rd her . The ve ry

fac t alone that the victim, who wa s appellant’s g randda ug hter,

rec anted he r outcrie s at appe llant’s trial does not establish insufficie nt e vidence

. As stated above , the jury was the sole judg e of the witnesses’ testimony and could be lieve all, some, or none of any witness’s testimony

. This court may not substitut e its weig hing of the cr edibility

of the witnesse s fo r t he jur y ’s

. Whe n v ie we d in

a ne utr a l li g ht, we fi nd

that th e e vid e nce s uppo rt ingthe ve rd ic t is no t so
weak that the ver dict is clear ly wrongand m an i fe s t l y

unjust and that the verdic t is not aga inst the g re a t w e ig ht an d pre po nd e ra nc e of the c on fl ic tin g e vid e nc e . F ur the r, we fi nd

that, whe n v ie we d in the lig ht m os t f

a vo ra ble to t he ve rd ic t, a ra

tio na l trie r o f f

a c t c ou ld h a ve fo un d th e e sse nti a l e le me nts of the of fe ns e be y on d a

re a so na ble do ub t. T he e vid e nc e is b oth fa c tua lly and le g a lly su ff ic ie nt t o support the conviction. Appe llant’s second issue is over ruled.4

I n his first issue on appea l, appellant conte nds that the trial cour t erre d in admitting the testimony of his ne phew who stated that a ppellant had se x ually

assaulted him. Appellant a rg ues that evidenc e of this extraneous off ense w as not rele vant to the present case and was too remote and that the issues of his identity

and intent wer e not in issue. Be caus e ap p el l an t testified that he neve r
se xua lly a ssa ult e d th e vic timand

be c a us e hi s defe nse at tr ia l w a s th a t th e vic timha d a mot ive to fab ri cate the assault, appe llant argues that the trial c ourt abused its discre tion in admitt ing the testimony

. When appellant testified in his own beha lf, he stated that he “used to drink a lot” a nd that he ha d a “ fe w” DW I s fro m whe n h e wa s y oung e r. Ap pe lla nt f ur the r s tate d th a t, at le a st t o h is knowledg e, he did not think he had be en co n v i ct ed of a f elony . He e x plained that he ha d turned him se lf in b e c a us e he ha d h e ard

that a po lic e man w a s lo ok ingfo r h im. On c ro ss- e xami natio n, the State qu e sti on e d a pp e lla nt a bo ut h is p ri or

DWI s a nd a sk e d h im if he re membere d “smac king a round Joe Salas with a lug w renc h, wounding him.” When appellant state d that he did n ot k

no w Joe , th e State sh ow e d a pp e lla nt a c op y of the 19 66 Da

ws on County judgme nt convicting him in C ause N o. 7930 o f t h e aggr avate d assault of Joe Salas with a lug

wre nch. Appe llant expl ained that, while he wa s the same pe rson convicte d of the off ense in the 1966 judgme nt, he never hit the man and that he was not guilty even thoug h he had e ntere d a guilty plea. Ap pe lla nt s tate d that, in 196 6, he ha d tur ne d hims e lf in be c a

us e the a uth or iti e s we re loo kin g fo r h im. He a lso stated that he did not know if he ha d been c onvicted of the crime. The State then questioned appellant conce rning the offe nses that appellant wa s prese ntly on trial for a

n d asked if he re membere d threateningor touchingeither vic tim. W hen appe llant continually denied touching or threatening either victim, the State asked if he reme m b er ed an
oc c a sio n b a c k in

19 74 wh e n he ha d sexua lly a ssa ult e d h is n e ph e w. Ap pe lla nt’ s c ouns e l im me diate ly

o b j e c t e d , an d

t h e t r i a l c o u rtc o n d

u c t e d a h e ar i n g o u t s i d e t h e p r e s e n c e o f t h e j u r y. At the he ari ng , th e ne ph e w t e sti fi e d c on c e rn ing ina pp ro pr iate se xua l touc hin g by a pp e lla nt. Counsel for appe llant cross-e x amined him. The trial c ourt explained its balancing of the probative

va lue wi th t

he pr e jud ic ia l e ff

e c t of the te sti mony

and c on c lud e d th a t th e e viden ce wa s a dmi ssi ble to rebut appe llant’s defe n s i v e t h eory that both victims had fabric ated their acc usations and was rele vant and pr obative to a material issue other than appellant’ s char acte r. The tr ial court noted that5

defe nse counse l had questioned the voir dir e pane l ext ensively conce rning children f

abric ating stories. The tria l court limited the admission of the testimony to the State’s rebuttal evidenc e and stated that a limiting instruction would be g iven. When cross-e x amination of appellant c ontinued in the prese nce of

the jury , appellant de nied sexually assaulting any

child. On re direc t, appellant testified that he had not bee n arr ested or a ccuse d of “a ny crime” since 19 90 and that he did

no t r e me mbe r a

ny arr e sts or a c c us a tio ns fr om t

he 19 80 s. On

re c ro ss, the State asked a ppellant if he r emember ed his 1986 and 1988 c onvictions. He also state d that he did not

reme mber be ing placed in jail two y ear s prior to this trial and that he wa s having a “little bit of a ba d time rec ollecting ” si nce he had had a stroke while he was in the jail in Brownfield. His trial counse l then had a ppellant explain his various medical problems, including impotence, hig h blood pressure , and a hiatal hernia

. After appellant rested his c ase, the State called thr ee r ebuttal witnesses, includingappellant’ s nephew

. A p p e ll an t’ s n e p h e w te s ti f ie d th a t, w h e nh e w a s a

c h il d , h e w o u ld

p la y w it h a p p e ll an t’ s
c hil dr e n at ap pe lla

nt’ s home

. Whe n he wa s ar ound te n y e ars old , a

pp e lla nt b e g an to uc hin g him . H is

ne ph e w s ta te d th a t he wo ke up wh e n a pp e llant was rubbin g his pe nis . App e lla nt w ou ld e xpos e h i m s el f a n d

m ak e h i s n ep h ew t o u ch h i m
. Hi s n ep h ew s t at edt h at h e w as s ca re d wh en t h es e t h i n gs happene d. The fir st tim e, his nephe w cr ied , an d appellant told him to be quiet and not wake up
a pp e lla nt’ s w if e . T he se c on d ti me , a

pp e lla nt c ov e re d h is n e ph e w’ s mouth an d thr e a te ne d to hu rt his

n ep h ew ’s p ar en t s
. T h e t h i rdt i m e, ap p el l an to ff er edh i s n ep h ew m o n ey

n o tt o s ay

an y t h i n g. Appellant’s ne phew testified that he did not go ba ck to appe llant’s home after the third time and that he blo c ke d o ut a

ny me mor y of the inc ide nc e s f

or y e ars
. T EX
. R. E V ID . 404(b) pr ovides that evidenc e of extraneous offe nses are admissible only for purposes other than to pr ove that a person acte d in conformity to his chara cter

. Mo se

s v . S tate , 105 S.W. 3d 62 2, 62 6 (T e x. Cr im. App . 2 003) ; Mo ntgom e ry v . S tate , 8 1 0 S. W. 2 d

3 7 2 , 3 8 7

- 8 8 ( T e x. Cr im. Ap p
. 1 9 9 1 )

. U n d e r R u l e 4 0 4 ( b ) , s u c h p u r

p o s e s i n c l u d e m o t i v e , o p p o rtu n i t y , i n t e n t, prepa ration, plan, knowle dg e, identity , or abse nce of mistake or ac cident. The T ex as Court of Criminal Appeals has found that extraneous offe nses are admissible to r ebut a de fensive the ory of fabr ication or re taliation. Moses , 1 05 S.W. 3d a t 62 7; W he e le r v . S

tate , 6 7 S. W. 3 d

8 7 9 , 8 8 7

- 8 8 ( T e x. Crim. App. 2002).6

The trial c ourt’s dec ision to admit e vidence of an e x trane ous offe nse will not be disturbed on appea l absent an a

buse of discr etion. Moses , 1 05 S.W. 3d a t 62 7; M

o n t g o m e ry , 8 1 0 S.W .2d at 39 1. Th e a

pp e llate c ourt

is p ro hib ite d f

ro m c on du c tin g a de no vo re vie w o f t he re c or d to make its own i ndepende nt determination of the a dmissibi lity of the e vidence

. Id . There fore , as long as the trial court’ s ruling is within the zone of re asonable ness, the appe llate cour t will affirm. Id. We disag ree with appellant that the trial cour t abused its discretion. We ca nnot say that the

ru lin g to a llo w the ne ph e w’ s te sti mony wa s ou tsi de the zon e of re a so na ble ne ss. Ap pe lla

nt’ s d e fe ns e was that b o th vic tims were f abric ating their ac cusations. We also disag ree with appellant’s a rg ument that any remotene ss of the extraneous off ense a utomatically

makes the testimony

irrele vant under T EX
. R. E V ID . 401. The fir st issue is overruled. The judg ment of the trial c ourt is affir med.

PER

CU RI AM

J anuar y 21, 2010 Do not publish. See T EX
. R. A PP
. P. 47.2(b). Panel consists of: Wright, C.J ., M c C a l l , J. , an d

S t r an g e , J.