Abel Garcia Orona v. State

Garcia Orona v. State

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN

NO. 3-91-308-CR

ABEL GARCIA ORONA,

APPELLANT

vs.

THE STATE OF TEXAS,

APPELLEE

FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 26TH JUDICIAL DISTRICT,

NO. 89-311-K, HONORABLE WILLIAM S. LOTT, JUDGE

PER CURIAM

Appellant was convicted of indecency with a child and aggravated sexual assault,

and sentenced to twenty years imprisonment and life imprisonment, respectively. Tex. Penal

Code Ann. §§ 22.021 (a)(1)(B)(i), (2)(B), 21.11(a) (1989). In four points of error, appellant

alleges that the district court erred in rendering judgment because: (1) the evidence is legally

insufficient to support a verdict that appellant was guilty of aggravated sexual assault; (2) the

evidence is legally insufficient to support a verdict that appellant was guilty of indecency with a

child; (3) the evidence is factually insufficient to support a verdict that appellant was guilty of

aggravated sexual assault; and (4) the evidence is factually insufficient to support a verdict that

appellant was guilty of indecency with a child. (1) We will affirm.

Appellant's stepdaughter testified that appellant came into her room at night and

penetrated her anus with his penis. The victim said that her stepsister was in bed when the

incident occurred and that she held her stepsister's hand while appellant penetrated her. The

stepsister testified that appellant came into the room on the night in question, but the stepsister

denied seeing her father molest the victim. The victim also testified that this incident was not the

only time appellant had sex with her. A pediatrician testified that the victim had fissures on her

rectum consistent with penetration by a penis. Finally, a child-protective-service specialist

testified that the victim initially denied being sexually abused, but later said that appellant

penetrated her.

The critical inquiry on review of the legal sufficiency of the evidence to support

a criminal conviction is whether the record evidence could reasonably support a finding of guilt

beyond a reasonable doubt. The appellate court does not ask whether it believes that the evidence

at trial established guilt beyond a reasonable doubt. Instead, 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. Jackson v.

Virginia , 443 U.S. 307, 318-19 (1979); Griffin v. State , 614 S.W.2d 155, 159 (Tex. Crim. App.

1981).

When the court of appeals conducts a factual-sufficiency review, the court views

all the evidence equally, including the testimony of defense witnesses and the existence of

alternative hypotheses. The court does not view the evidence in the light most favorable to the

prosecution as it does in legal-sufficiency review. The court should set aside the verdict only if

it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.

Stone v. State , 823 S.W.2d 375, 381 (Tex. App. 1992, State's pet. ref'd, untimely filed, and

State's mot. for discretionary review without pet. denied); see Cain v. Bain , 709 S.W.2d 175, 176

(1986); In re King's Estate , 244 S.W.2d 660, 661 (Tex. 1951).

When both factual- and legal-sufficiency points of error are raised, the court of

appeals must first examine the legal sufficiency of the evidence. Glover v. Texas Gen. Indem.

Co. , 619 S.W.2d 400, 401 (Tex. 1981). When a court sustains a defendant's legal-sufficiency

point of error, the court reverses and reforms the judgment of the trial court to reflect an acquittal.

When a court sustains a defendant's factual-sufficiency point of error, the court reverses the

judgment of the trial court and remands the cause for a new trial, a result that apparently does not

offend the Double Jeopardy Clause of the Fifth Amendment. See Tibbs v. Florida , 457 U.S. 31,

32 (1982); Stone , 823 S.W.2d at 381 n.9. Obviously a defendant is entitled to an acquittal if one

is warranted under the record.

The State initially requests that we reconsider our opinion in Stone . Although not

cited by the State, the only express criticism of Stone has been the Fourteenth Court's opinion in

Mukes v. State , 828 S.W.2d 571 (Tex. App. 1992, no pet.). Mukes states, in contrast to our

opinion in Stone , that the Fourteenth Court has not limited the ability of the appellate court to

review the factual sufficiency of the evidence in criminal cases; rather, Mukes implies that it is

the court of criminal appeals' opinion in Meraz v. State that limits factual-sufficiency review.

Meraz , 785 S.W.2d 146 (Tex. Crim. App. 1990); Mukes , 828 S.W.2d at 573-74 .

We respectfully continue to disagree with the Fourteenth Court of Appeals that

Meraz limited factual-sufficiency review to issues on which the defendant had the burden of proof,

or that the legal-sufficiency test enunciated in Jackson v. Virginia prohibits factual-sufficiency

review of the evidence relative to the state's proof of the elements of the offense. See Jackson ,

443 U.S. at 319 n.13 ( Jackson test for constitutional adequacy of evidence does not refer to

appellate court's potential factfinding power); Meraz , 785 S.W.2d at 156 (expressly stating that

court of criminal appeals was expressing no opinion on role of courts of appeals in reviewing

factual sufficiency of evidence relative to proof of elements of offense).

Contrary to the Fourteenth Court's assertion in Mukes , factual-sufficiency review

of the evidence relative to the state's proof of the elements of the offense does not result in unfair

relief for a defendant from the state's burden of proof beyond a reasonable doubt. See Mukes , 828

S.W.2d at 574 . By the time the court of appeals reaches the factual-sufficiency point of error,

the court must already have presumed that the evidence supporting the jury's verdict is

constitutionally sufficient for purposes of the Due Process Clause of the Fourteenth Amendment.

Stone , 823 S.W.2d at 381 . A factually-insufficient-evidence point of error does not import the

preponderance-of-the-evidence burden of proof into a factual-sufficiency review. Id . Such a point

of error asks only that the court of appeals, after considering all the evidence without the prism

of "in the light most favorable to the prosecution," set aside a verdict that is so contrary to the

overwhelming weight of the evidence as to be clearly wrong and unjust. If factual-sufficiency

review is "fair" in civil cases, how can it be "unfair" to afford criminal defendants the protection

mandated under our state constitution when a constitutionally sufficient verdict nonetheless

appears to be clearly wrong and unjust?

The State also questions the continuing validity of our opinion in Stone in light of

the opinion of the court of criminal appeals in Geesa v. State , in which that court abolished the

"reasonable hypothesis analytical construct." Geesa , 820 S.W.2d 154 (Tex. Crim. App. 1991).

Geesa rightfully abolished the logically inconsistent requirement in a circumstantial-evidence case

that a legal-sufficiency review, in which the appellate court must view the evidence in the light

most favorable to the prosecution, must also negate the existence of any alternate reasonable

hypothesis inconsistent with the defendant's guilt. The old test impermissibly placed the appellate

court in the posture of a "thirteenth juror." The State erroneously assumes, however, that a

proper application of the Jackson legal-sufficiency review results in an affirmation that the jury

properly found the defendant guilty beyond a reasonable doubt. A proper application of the

Jackson legal-sufficiency review results only in the appellate court's conclusion that Fourteenth

Amendment due process was not violated, i.e., that any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt. The jury's verdict might pass federal

constitutional muster and still be suspect due to the existence of an alternate reasonable

hypothesis. Factual-sufficiency review is the proper method to raise such concerns. (2)

In points of error 1 and 2, appellant alleges that the district court erred in rendering

judgment because the evidence is legally insufficient to support a verdict that he was guilty of

indecency with a child and aggravated sexual assault. After reviewing the record, we conclude

that legally sufficient evidence exists, when viewed in the light most favorable to the prosecution,

from which a rational trier of fact could have found the essential elements of the crime beyond

a reasonable doubt. The child victim testified that appellant penetrated her anus with his penis,

and a pediatrician testified that the victim exhibited a fissure on her rectum that was consistent

with such penetration. While some of the evidence was conflicting, it is legally sufficient to

uphold the conviction. Points of error 1 and 2 are overruled.

In points of error 3 and 4, appellant alleges that the district court erred in rendering

judgment because the evidence is factually insufficient to support a verdict that appellant was

guilty of indecency with a child and aggravated sexual assault. Even when we view the evidence

without the prism of "in the light most favorable to the prosecution," we hold that the verdict is

not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.

Points of error 3 and 4 are overruled.

The judgment of conviction is affirmed.

[Before Justices Powers, Jones and Kidd]

Affirmed

Filed: August 12, 1992

[Publish]

1. Because a motion for new trial is not a prerequisite for a factual-sufficiency point of

error in a criminal appeal, the specific assertion of error in a factual-sufficiency point of error

is that the trial court erred in rendering judgment, not that the trial court erred in refusing to

grant a new trial. Compare Tex. R. Civ. P. Ann. 324(b) (Supp. 1992) with Tex. R. App. P.

Ann. 30(a) (Pamph. 1992).

2. The test for factual sufficiency when an alternate reasonable hypothesis exists is not the

now-rejected test in Carlsen : a conviction based on circumstantial evidence must exclude every

other reasonable hypothesis except the guilt of the accused. See Carlsen v. State , 654 S.W.2d

444, 447 (Tex. Crim. App. 1983), overruled by Geesa v. State , 820 S.W.2d 154 (Tex. Crim.

App. 1991). Instead, the test for factual sufficiency when an alternate reasonable hypothesis

exists is that the verdict should be set aside only if it is so contrary to the overwhelming

weight of the evidence, i.e., the alternate reasonable hypothesis, as to be clearly wrong and

unjust. Factual-sufficiency review does not, as the State suggests, resurrect the

alternate-reasonable-hypothesis monster slain in Geesa .