                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-19-00019-CR

JUAN GABRIEL CERVANTES,
                                                           Appellant
v.

THE STATE OF TEXAS,
                                                           Appellee



                          From the 361st District Court
                              Brazos County, Texas
                        Trial Court No. 14-04555-CRF-361


                                    OPINION


      Juan Cervantes was indicted in Count 1 for the offense of indecency with a child

by contact and in Count 2 for the offense of indecency with a child by exposure. The jury

convicted Cervantes on both counts, and the trial court assessed punishment at twenty

years confinement in Count 1 and eight years confinement in Count 2. The trial court

ordered the sentences to run consecutively. We affirm.
                                  BACKGROUND FACTS

        Emily Johnson and Cervantes were married for a short time in 2006 and had a

daughter, I.C. After they divorced, Emily and I.C. lived in Louisiana, and I.C. would go

for visitation in Texas with Cervantes. In March 2011, I.C. told her aunt, Emily’s sister,

and her grandmother, Emily’s mother, some things about Cervantes that they found

concerning. I.C. told her grandmother that Cervantes made her sit on his lap and “do

this.” I.C. then made a hand gesture that her grandmother described as stroking a penis.

They called Emily, and she reported what I.C. said to Child Protective Services in

Louisiana. I.C. shut down and did not talk about the incident further at that time. I.C.

did not have any further visitation with Cervantes.

        In 2013, Cervantes left voice messages for Emily in which he acknowledged that

I.C. had seen him naked and that he did have an erection while lying on the couch with

I.C. After the voicemail messages, I.C. talked to Emily more about what happened with

Cervantes. I.C. told Emily that Cervantes would lay on the couch behind her and rub

himself in her “butt cheeks.” I.C. also said that Cervantes came out of the shower naked

with his “thing” up. I.C. further told Emily that Cervantes would sit on the couch with

his “thing” out and make her touch it. Emily again contacted Child Protective Services,

and eventually the Bryan Police Department.

        Detective Chris Loup with the Bryan Police Department talked to Cervantes about

the allegations. Cervantes told Detective Loup about other allegations against him made


Cervantes v. State                                                                  Page 2
by his first wife, Angela, and her daughter J.D. A warrant was issued for Cervantes’s

arrest.

          Cervantes’s sister testified at trial that after Cervantes and Angela split up,

Cervantes assumed that Angela left because she found out about him and J.D. Cervantes

told his sister that he had been “fruitful” with J.D. Cervantes then admitted to his sister

that he had touched his penis on J.D. and also indicated that he had oral sex with J.D. His

sister stated that it was known in their family that Cervantes had a problem with

molesting girls and that they did not leave him alone with the girls in their family.

          Angela testified at trial that she was married to Cervantes for 5 years and that her

daughter, J.D. was 2 years-old when she married him. Angela stated that after she left

Cervantes, he told her he had been “fruitful” with J.D. Angela said that when she asked

Cervantes what he meant by that, he responded with statements like “you know what I

mean and you know what I did.”

                                     WITNESS TESTIMONY

          In the second issue, Cervantes argues that he was deprived of his right of

confrontation as provided by the Sixth Amendment of the United States Constitution

when the trial court permitted D.W. to testify via Skype about an extraneous offense.

D.W. is the niece of Cervantes. She lives in Wichita, Kansas and is a single mother of five

children, including a breast-feeding newborn. Cervantes made a pre-trial objection to the

State’s request to allow D.W. to testify by Skype and moved for a continuance.


Cervantes v. State                                                                      Page 3
        At the hearing on the motion for continuance, the trial court noted that it had read

cases involving Skype and the appropriate way for people to testify without a violation

of the confrontation clause. The trial court denied the continuance. In ruling on the

admissibility of the testimony by Skype, the trial court found that system the court would

be using allowed contemporaneous transmission and cross-examination. The trial court

stated that the system allowed Cervantes to see the witness and the witness to see

Cervantes as well as counsel for the State and Cervantes. The trial court noted that the

jury would be able to observe the testimony on the large screen and observe the demeanor

of the witness. The trial court found that the State, “has established a need with a young

child being breastfed and a requirement of care for other children and that that is an

exceptional circumstance allowing her to testify by webcam without violating a Sixth

Amendment right to confrontation.”

        D.W. testified via Skype that when she was nine years-old she lived with her

grandmother, Cervantes’s mother, and that Cervantes also lived in the home. D.W. said

that Cervantes asked her if he could see her naked and also asked her if she wanted to

see him naked. Cervantes also asked D.W. if he could “make love to her.” D.W. further

testified that one time Cervantes touched her private area over her clothes.

        The Sixth Amendment guarantees a defendant the right to be confronted with the

witnesses against him. The “central concern of the Confrontation Clause is to ensure the

reliability of the evidence against a criminal defendant by subjecting it to rigorous testing


Cervantes v. State                                                                     Page 4
in the context of an adversary proceeding before the trier of fact.” Maryland v. Craig, 497

U.S. 836, 845 (1990). The right of confrontation requires that the witness be placed under

oath, the defendant be given the opportunity for cross-examination, and the factfinder be

provided the opportunity to observe the witness's demeanor. Id. at 845-46. Although

face-to-face confrontation is preferred, it must occasionally give way to considerations of

public policy and the necessities of the case. Maryland v. Craig, 497 U.S. at 849; Rivera v.

State, 381 S.W.3d 710, 712 (Tex. App.—Beaumont 2012, pet. ref’d).

        This Court discussed increasing advancements in technology and its impact on

witness testimony in In re J.C., No. 10-18-00214-CV, 2018 LEXIS 8914 (Tex. App. —Waco

October 31, 2018, no pet.). In In re J.C., a witness was allowed to testify via Skype in a

jury trial on an involuntary commitment. In re J.C., 2018 LEXIS 8914 at * 9. This Court

noted that with increasing advancements in technology, trial courts are being asked to

use those advancements and appellate courts are asked to review those decisions. Id at

*12. We held that, under the facts of that case, the procedure utilized in allowing the

Skype testimony was not prohibited by any existing statute and that the trial court did

not abuse its discretion in allowing the witness to testify via real time tele-video

communication. Id. at *13.

        Appellate courts are also asked to review decisions in allowing testimony by video

communication in criminal trials. In Acevedo v. State, the trial court allowed a witness

with a high-risk pregnancy to testify by way of a video conference system. Acevedo v.


Cervantes v. State                                                                    Page 5
State, No. 05-08-00839-CR, 2009 Tex. App. LEXIS 8109, 2009 WL 3353625, at *23 (Tex.

App.—Dallas Oct. 20, 2009, pet. ref'd) (not designated for publication). The reviewing

court noted that although a doctor had not confirmed the high-risk pregnancy, the trial

court found the witness to be credible. Acevedo v. State at * 22.

        The Skype system used in this case allowed for contemporaneous transmission

and cross-examination. D.W. confirmed that she could see both counsel tables on the

screen and that she could see and in fact did identify Cervantes. Counsel for Cervantes

was able to cross-examine D.W. in the jury’s presence, and the jury was able to view D.W.

and her demeanor. The record established that D.W. was caring for a breast-feeding

newborn as well as four other children and that she resided in another state. As such, the

trial court utilized a system by which the witness could testify in an exceptional

circumstance without violating Cervantes’s Sixth Amendment right to cross-examine

D.W. We find that the necessities of the case allowed for the testimony by Skype. We

overrule the second issue.

                               SUFFICIENCY OF THE EVIDENCE

        In the first issue, Cervantes argues that the evidence is insufficient to support his

convictions in both counts for indecency with a child. The Court of Criminal Appeals

has expressed our standard of review of a sufficiency issue as follows:

               When addressing a challenge to the sufficiency of the evidence, we
        consider whether, after viewing all of the evidence in the light most
        favorable to the verdict, any rational trier of fact could have found the
        essential elements of the crime beyond a reasonable doubt. Jackson v.
Cervantes v. State                                                                      Page 6
        Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); Villa v. State,
        514 S.W.3d 227, 232 (Tex. Crim. App. 2017). This standard requires the
        appellate court to defer "to the responsibility of the trier of fact fairly to
        resolve conflicts in the testimony, to weigh the evidence, and to draw
        reasonable inferences from basic facts to ultimate facts." Jackson, 443 U.S. at
        319. We may not re-weigh the evidence or substitute our judgment for that
        of the factfinder. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App.
        2007). The court conducting a sufficiency review must not engage in a
        "divide and conquer" strategy but must consider the cumulative force of all
        the evidence. Villa, 514 S.W.3d at 232. Although juries may not speculate
        about the meaning of facts or evidence, juries are permitted to draw any
        reasonable inferences from the facts so long as each inference is supported
        by the evidence presented at trial. Cary v. State, 507 S.W.3d 750, 757 (Tex.
        Crim. App. 2016) (citing Jackson, 443 U.S. at 319); see also Hooper v. State, 214
        S.W.3d 9, 16-17 (Tex. Crim. App. 2007). We presume that the factfinder
        resolved any conflicting inferences from the evidence in favor of the verdict,
        and we defer to that resolution. Merritt v. State, 368 S.W.3d 516, 525 (Tex.
        Crim. App. 2012). This is because the jurors are the exclusive judges of the
        facts, the credibility of the witnesses, and the weight to be given to the
        testimony. Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010).
        Direct evidence and circumstantial evidence are equally probative, and
        circumstantial evidence alone may be sufficient to uphold a conviction so
        long as the cumulative force of all the incriminating circumstances is
        sufficient to support the conviction. Ramsey v. State, 473 S.W.3d 805, 809
        (Tex. Crim. App. 2015); Hooper, 214 S.W.3d at 13.

               We measure whether the evidence presented at trial was sufficient
        to support a conviction by comparing it to "the elements of the offense as
        defined by the hypothetically correct jury charge for the case." Malik v.
        State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). The hypothetically
        correct jury charge is one that "accurately sets out the law, is authorized by
        the indictment, does not unnecessarily increase the State's burden of proof
        or unnecessarily restrict the State's theories of liability, and adequately
        describes the particular offense for which the defendant was tried." Id.; see
        also Daugherty v. State, 387 S.W.3d 654, 665 (Tex. Crim. App. 2013). The "law
        as authorized by the indictment" includes the statutory elements of the
        offense and those elements as modified by the indictment. Daugherty, 387
        S.W.3d at 665.

Zuniga v. State, 551 S.W.3d 729, 732-33 (Tex. Crim. App. 2018).
Cervantes v. State                                                                              Page 7
         Count 1 of the indictment alleges that on or about December 1, 2010, Cervantes

did:

         then and there, with the intent to arouse or gratify the sexual desire of said
         Defendant, intentionally or knowingly cause I.C., a child younger than 17
         years of age, to engage in sexual contact by causing the said I.C. to touch
         the genitals of the Defendant,

Count 2 alleges that on or about December 1, 2010 Cervantes did:

         then and there, with the intent to arouse or gratify the sexual desire of said
         Defendant, intentionally or knowingly expose the defendant's genitals,
         knowing that I.C., a child younger than 17 years of age, was present

         Cervantes first argues that the evidence is insufficient in Count 1 to show that he

caused I.C. to touch his genitals. Emily’s grandmother testified that in 2011, I.C. told her

Cervantes made her sit on his lap and perform a gesture that she described as stroking a

penis. Emily testified that in 2013, I.C. told her Cervantes made her touch his genitals

while sitting on the couch. A child victim's outcry statement alone can be sufficient to

sustain a conviction for a sexual offense. Rodriguez v. State, 819 S.W.2d 871, 873 (Tex.

Crim. App. 1991); Jimenez v. State, 507 S.W.3d 438, 442 (Tex. App.—Fort Worth 2016, no

pet.).

         Cervantes next argues that the evidence is insufficient in both counts to show that

he had the requisite intent to arouse or gratify his sexual desires. The intent to arouse or

gratify the defendant's sexual desire may be inferred from a defendant's conduct and all

surrounding circumstances. Ryder v. State, 514 S.W.3d 391, 397 (Tex. App. —Amarillo

2017, pet. ref’d); Jones v. State, 229 S.W.3d 489, 497 (Tex. App.—Texarkana 2007, no pet.).
Cervantes v. State                                                                        Page 8
An oral expression of intent is not required, and a defendant's conduct alone is sufficient

to infer intent. Abbott v. State, 196 S.W.3d 334, 341 (Tex. App.—Waco 2006, pet. ref'd).

        I.C. told Emily that Cervantes made her touch his “thing” and that his “thing” was

up when she saw him naked. I.C. said that Cervantes would rub himself between her

“butt cheeks.” Cervantes admitted in the voicemails that he had an erection while lying

with I.C. The jury also heard testimony that Cervantes’s family knew he had a problem

molesting girls and that he made inappropriate sexual comments about female family

members. Thus, the jury could infer from Cervantes’s exposing his genitals to I.C. and

having her touch his genitals that it was done with the intent to arouse or gratify his

sexual desire. See Abbott v. State, 196 S.W.3d at 341. We overrule the first issue.

                                    OUTCRY WITNESSES

        In the third issue, Cervantes argues that the trial court erred in allowing multiple

witnesses to testify as outcry witnesses. We review the trial court's designation of an

outcry witness under an abuse-of-discretion standard. Polk v. State, 367 S.W.3d 449, 452

(Tex. App.—Houston [14th Dist.] 2012, pet. ref’d). A trial court's designation of an outcry

witness will be upheld when supported by the evidence. Id. A trial court abuses its

discretion when its ruling is outside the zone of reasonable disagreement. Id. Absent a

clear abuse of discretion, a reviewing court will not disturb the trial court's ruling. Id.

        Texas Code of Criminal Procedure Article 38.072 provides that some hearsay

statements of a child under the age of 14 or person with a disability are admissible in


Cervantes v. State                                                                      Page 9
prosecuting certain offenses, including indecency with a child, as in this case. TEX. CODE

CRIM. PROC. ANN. ART. 38.072 (West Supp. 2018). The statute applies to "statements that

describe the alleged offense" and that (1) were made by the child against whom the

offense allegedly was committed and (2) were made to the first person, eighteen years of

age or older, other than the defendant, to whom the child made a statement about the

offense. TEX. CODE CRIM. PROC. ANN. ART. 38.072 (West Supp. 2018); Polk v. State, 367

S.W.3d at 453. The statute has been construed to apply to the first adult to whom the

complainant makes a statement that in "some discernible manner describes the alleged

offense." Id. Outcry testimony is specific to an event instead of "person-specific." Id.

More than one outcry witness may testify when the outcry statements are about differing

events and not a repetition of the same events. Id.

        Cervantes argues that Emily, her mother, and her sister all testify about the same

Count 1 allegation. In a pre-trial hearing, the trial court heard testimony from all three

of the potential witnesses. The trial court ruled that Emily’s mother would be able to

testify about the gesture I.C. made when telling her about Cervantes and that Emily

would be able to testify about Cervantes exposing himself and having I.C. touch his

private area as these were two separate events. Cervantes did not object to the trial

court’s ruling and did not object to the testimony presented at trial. In her initial

testimony, Emily’s sister did not describe the gesture by I.C. and only stated that I.C. told




Cervantes v. State                                                                    Page 10
her something that alarmed her. She was recalled and testified that she saw I.C. make

the gesture when talking to Emily’s mother.

        The trial court did not abuse its discretion in allowing Emily and her mother to

testify as outcry witnesses. Emily’s mother’s testimony was limited to describing a

gesture made by I.C. when describing her interaction with Cervantes. Emily testified as

to the statements I.C. made that Cervantes made her touch his “thing” while sitting on

the couch. Although the testimony of both Emily and her mother describe sexual contact,

the trial court did not abuse its discretion in finding that these were different events.

When she was recalled, Emily’s sister testified as to the same gesture described by Emily’s

mother; however, the testimony was a prior consistent statement under TEX. R. EVID. 801

(e) (1) (B) after cross-examination suggested fabrication by Emily, her mother, and her

sister. The trial court did not abuse its discretion in allowing the testimony of Emily, her

mother, and her sister. We overrule the third issue.

                                       CONCLUSION

        We affirm the trial court’s judgment.




                                                 JOHN E. NEILL
                                                 Justice




Cervantes v. State                                                                   Page 11
Before Chief Justice Gray,
       Justice Davis, and
       Justice Neill
Affirmed
Opinion delivered and filed December 4, 2019
Publish
[CR25]




Cervantes v. State                             Page 12
