                         NUMBER 13-17-00084-CR

                            COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG


FERNANDO MARTINEZ BALLADARES,                                             Appellant,

                                          v.

THE STATE OF TEXAS,                                                       Appellee.


                   On appeal from the 139th District Court
                         of Hidalgo County, Texas.


                         MEMORANDUM OPINION

 Before Chief Justice Valdez and Justices Rodriguez and Benavides
            Memorandum Opinion by Justice Rodriguez

      Appellant Fernando Martinez Balladares challenges his conviction for aggravated

sexual assault. See TEX. PENAL CODE ANN. § 22.021(2)(B) (West, Westlaw through 2017

1st C.S.). By two issues, Balladares argues that the evidence is legally insufficient to

support his conviction, and that because Texas criminal law no longer affords him the
ability to challenge the factual sufficiency of the evidence, he is deprived of his due

process right to meaningful review of his conviction. We affirm.

                                        I.       BACKGROUND

      In 2015, Balladares was indicted for continuous sexual abuse of a child, a felony

of the first degree. See id. § 21.02(h) (West, Westlaw through 2017 1st C.S.). The case

was tried before a Hidalgo County jury in 2017.

A.    L.M.’s Testimony1

      L.M. recalled that she was eight years old when Balladares, her stepfather, began

abusing her. According to L.M., during the most recent instance of abuse, Balladares

touched her private part with his hands, under her clothing, causing her pain. L.M.

testified that the abuse occurred in the living room of her house while her mother A.M.

was shopping, and her brothers were in another room. L.M. explained that she told

Balladares to stop, but he did not stop until A.M. returned home.

      That evening, L.M. told A.M. what happened, at which point A.M. got into a fight

with Balladares, and Balladares began choking her. L.M. testified that she fled the house

with A.M. and went to a friend’s house, where A.M. checked L.M. for injuries and found

blood in her underwear. L.M. further testified, in detail, about previous incidents of

sexual abuse in which Balladares inserted his sexual organ into hers, touched her

breasts, and abused her in other ways.

      L.M. explained that she then disclosed the abuse to her aunt, to an employee at

her elementary school, and to Eric Galvan, who was an investigator for Child Protective



      1   We use aliases to protect the minor’s identity. See TEX. R. APP. P. 9.8 cmt.
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Services (CPS). However, L.M. recanted her allegations during a May 3, 2013 interview

at the Children’s Advocacy Center (CAC).         According to L.M., she lied when she

recanted her allegations because her mother instructed her to do so and instilled her with

fear that if she told the truth about the abuse, CPS would take her and her siblings away

from their mother.

B.       Other Witnesses

         Galvan testified that he became aware of L.M. when she reported to an elementary

school teacher that she had been abused by Balladares. L.M. was nine years old at the

time. Galvan contacted L.M. and her family in April of 2013. According to Galvan, L.M.

reported that she had told A.M. about the abuse, but A.M. had done nothing to address

the situation. Galvan also interviewed Balladares and A.M., who both claimed that L.M.

was lying about the abuse. A.M. explained that L.M. lied often.

         Galvan testified that he observed an interview with L.M. at the CAC on May 3,

2013. During the interview, L.M. recanted her allegations of abuse and claimed that

Balladares had never touched her. L.M. explained that she had lied about the abuse to

a teacher because she did not like Balladares and did not want him to be with her mother.

         However, L.M. then expressed fear that if she confirmed the abuse, she and her

siblings would be taken away by CPS. L.M. began crying and changed course. L.M.

explained that the first time Balladares touched her was in a trailer in San Juan, Texas.

She explained that Balladares touched her under her clothes “in the middle,” sticking his

finger inside of her. She told the interviewer that Balladares touched her three other

times.

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       L.M. then asked if she and her siblings would be taken away from her mother or if

her mother would be put in jail. When the interviewer did not answer her question, L.M.

changed course once more and denied that any abuse had occurred, explaining that she

had just lied because she did not like Balladares. L.M. explained that her mother had

told her that authorities were “going to put me away because I’m sick in the head.”

       Based on L.M.’s interview, Galvan believed that someone made L.M. afraid that if

she disclosed the abuse, CPS would take her away from her mother or that she would be

locked away. However, Galvan testified that because L.M. recanted, CPS could not

determine whether Balladares abused L.M. CPS closed its initial investigation.

       Separately, police began investigating possible abuse by Balladares.        Ruben

Pequeno, Jr., a juvenile investigator with the Pharr Police Department, testified that he

was assigned to the case on May 2, 2013. Investigator Pequeno explained that after

L.M. recanted her allegations, the police department closed the investigation, citing

insufficient evidence.

       Galvan testified that in June of 2013, CPS reopened its investigation when L.M.

again reported abuse. L.M. and her siblings were removed from A.M.’s house. CPS

placed the children with relatives and, later, with a foster family.

       Sonja Eddleman, a director at a local hospital, testified that she oversaw a sexual

assault nurse examiner (SANE) who met with L.M. in June of 2013, shortly after L.M.

renewed her allegations of abuse. According to Eddleman, L.M. reported that Balladares

spit on his fingers and inserted them inside her sexual organ. As Eddleman read from

L.M.’s records, she recounted a quote from L.M.: “I would tell my mom and she would

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say yes. My mom would tell me not to tell cause she was sad and scared to start with

another person, but I told my grandma anyway.” L.M. displayed no genital trauma, but

Eddleman testified that this was common of sexual abuse cases, particularly months after

the abuse occurred. Eddleman also believed it was common for children to recant

allegations of abuse because disclosing abuse can change a child’s world drastically.

Eddleman confirmed that L.M. had not reported any other forms of sexual abuse aside

from the insertion of his fingers during her October 2013 SANE exam, though according

to the medical records, Balladares had touched her four times in all. However, the State

offered medical records of a second SANE exam conducted in January 2014, during

which L.M. described, in graphic detail, multiple instances of abuse by Balladares.

       Laura Salazar, a “conservator specialist” with CPS, testified that following L.M.’s

removal from A.M.’s home, she oversaw visits between L.M. and A.M. Salazar recalled

an incident where L.M. saw A.M. arriving for visitation in Balladares’s vehicle. When

L.M. saw her driving Balladares’s vehicle, she became panicked and upset. From that

point on, L.M. would not visit with A.M.

       A.M. testified that L.M. had disclosed the abuse over dinner in 2013. According

to A.M., L.M. reported that Balladares had inserted his fingers into her. A.M. explained

that she began to cry and took all of the children to a friend’s house for the night. While

there, she checked L.M.’s genitals for signs of bleeding or abuse, but she found none.

A.M. testified that she came up with the plan whereby L.M. would disclose the abuse to

her elementary school teacher the following day. A.M. denied that L.M. had cut off

contact with her because she was still in a relationship with Balladares.

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      Sofia Arizpe, the attorney ad litem for L.M. and her siblings, testified that in

September of 2013 she asked the Pharr police department to reopen the investigation

because the “details that were provided by the child to CPS were too descriptive to not

pay attention to them.”    According to Arizpe, it is common for children to recant

allegations against family members due to feelings of guilt, and she believed that L.M.

had recanted because she felt responsible for her siblings being put into foster care.

      Investigator Pequeno explained that after receiving Arizpe’s request, Pharr police

began to compile evidence once more, including an affidavit in which L.M. renewed her

allegations against Balladares. Investigator Pequeno reviewed the recording of L.M.’s

interview at the CAC. In Investigator Pequeno’s view, L.M. had been coached, and she

recanted her allegations out of fear that CPS would take her away from her mother.

      Investigator Pequeno testified that he next contacted A.M., who confirmed that

L.M. “had told [her] what had happened.” A.M. explained to Investigator Pequeno that

after she learned of the abuse, she confronted Balladares, and Balladares beat her.

Investigator Pequeno then contacted L.M.’s younger brother, E.M., who confirmed that

he had seen Balladares touching L.M.’s private parts on one occasion. Based on this

evidence, Investigator Pequeno pursued and obtained a warrant for Balladares’s arrest

in November of 2013.

C.    Conclusion of Trial

      At the conclusion of the evidence, the jury found Balladares guilty of the lesser

included offense of aggravated sexual assault of a child. See id. § 22.021. The trial

court pronounced punishment at eighteen years’ confinement. Balladares appeals.

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                                II.    LEGAL SUFFICIENCY

       By his first issue, Balladares contends that the evidence is legally insufficient to

support his conviction.

       A person commits the offense of aggravated sexual assault if the person

intentionally or knowingly causes the penetration of the anus or sexual organ of a child

by any means and the victim is younger than fourteen years of age. Id. § 22.021(1)(B)(i)

& (2)(B).   In assessing the legal sufficiency of the evidence, we consider all of the

evidence in the light most favorable to the verdict and determine whether, based on that

evidence and reasonable inferences therefrom, any rational juror could have found the

essential elements of the crime beyond a reasonable doubt.         Jenkins v. State, 493

S.W.3d 583, 599 (Tex. Crim. App. 2016). We give deference to the responsibility of the

trier of fact to fairly resolve conflicts in testimony, to weigh the evidence, and to draw

reasonable inferences from basic facts to ultimate facts. Id. Each fact need not point

directly and independently to the appellant’s guilt, as long as the cumulative force of all

the incriminating circumstances is sufficient to support the conviction. Id. “Under this

standard, evidence may be legally insufficient when the record contains either no

evidence of an essential element, merely a modicum of evidence of one element, or if it

conclusively establishes a reasonable doubt.” Queeman v. State, 520 S.W.3d 616, 622

(Tex. Crim. App. 2017).

       Balladares argues that the evidence is insufficient to show that he assaulted L.M.

because of inconsistencies in the trial evidence and L.M.’s recantation. However, the

jury could have believed L.M.’s explanation that she was coached into recanting her

                                            7
allegations by her mother—testimony that was corroborated by witnesses who reviewed

video of the interview, including the CPS investigator Galvan and Investigator Pequeno.

See Jenkins, 493 S.W.3d at 599. The jury could have assigned greater weight to:

      •   L.M.’s graphic description of the manner and setting in which Balladares

          abused her;

      •   Her brother E.M.’s confirmation that he witnessed a sexual assault;

      •   A.M.’s admission that she engaged in a violent confrontation with Balladares

          after hearing of the abuse, as well as L.M.’s testimony that her mother and aunt

          discovered blood in her underwear that evening;

      •   Similar reports of abuse in the days and weeks after L.M. disclosed the abuse,

          which were heard by A.M., the SANE, Galvan, and possibly others;

      •   The testimony by Laura Salazar that, months after the alleged abuse, L.M. was

          panicked by even the sight of Balladares’s vehicle;

      •   The testimony that L.M. no longer had contact with her mother due to A.M.’s

          continuing relationship with Balladares.

See id. The cumulative force of this incriminating evidence would enable a rational juror

to find the essential elements of the offense of aggravated assault beyond a reasonable

doubt. See TEX. PENAL CODE ANN. § 22.021; Jenkins, 493 S.W.3d at 599. Accordingly,

we conclude the evidence is legally sufficient to support Balladares’s conviction. See

Jenkins, 493 S.W.3d at 599.

      We overrule Balladares’s first issue.



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                                 III.    VIOLATION OF DUE PROCESS

       By his second issue, Balladares protests the Texas Court of Criminal Appeals’

decision to do away with factual sufficiency review. Balladares contends that without

factual sufficiency review, his due process rights are violated because there is no

meaningful review of his case.

       The Texas Court of Criminal Appeals has directed intermediate courts to apply the

Jackson v. Virginia2 standard of review to all sufficiency challenges in criminal cases.

Brooks v. State, 323 S.W.3d 893, 894–95 (Tex. Crim. App. 2010) (plurality op.); see

Martinez v. State, 327 S.W.3d 727, 730 (Tex. Crim. App. 2010) (adopting the Brooks

plurality as a unanimous majority view). As our state’s final voice on the meaning of the

Due Process Clause in criminal cases, the Texas Court of Criminal Appeals was not

unaware of that clause when it issued its rulings in Brooks and Martinez. We therefore

presume that our state’s highest criminal court has satisfied itself that a single standard

of review does justice under the Due Process Clause.

       This Court has previously rejected a similar invitation to second-guess Brooks on

the basis that it violated the Texas Constitution. See Perez v. State, No. 13-11-00060-

CR, 2013 WL 6055252, at *3 (Tex. App.—Corpus Christi Nov. 14, 2013, pet. ref’d) (mem.

op., not designated for publication). We wrote, simply, “We decline appellant’s invitation;

‘we are duty bound to follow precedent issued by the Texas Court of Criminal Appeals in

this matter.’” Id. (quoting Kiffe v. State, 361 S.W.3d 104, 109 (Tex. App.—Houston [1st

Dist.] 2011, pet. ref’d)). We repeat those sentiments today.


       2   Jackson v. Virginia, 443 U.S. 307, 319 (1979).
                                                     9
       We overrule Balladares’s second issue.

                                  IV.    CONCLUSION

       We affirm the judgment of conviction.



                                                      NELDA V. RODRIGUEZ
                                                      Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
30th day of August, 2018.




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