AFFIRMED and Opinion Filed February 24, 2020




                                              S
                                  Court of Appeals
                                                  In The


                           Fifth District of Texas at Dallas
                                          No. 05-18-01448-CR

                           ERMITANO RODRIGUEZ, Appellant
                                        V.
                            THE STATE OF TEXAS, Appellee

                         On Appeal from the 366th Judicial District Court
                                      Collin County, Texas
                             Trial Court Cause No. 366-82911-2016

                             MEMORANDUM OPINION
                       Before Justices Whitehill, Osborne, and Nowell
                                Opinion by Justice Osborne

        Appellant, Ermitano Rodriguez, was convicted of aggravated sexual assault

of a child and sentenced to forty-five years’ imprisonment.1 On appeal, appellant

claims that (1) the evidence is legally insufficient to support his conviction and (2)

the trial court erred by allowing the complainant to be asked leading questions. We

affirm.




    1
      Appellant was charged in a five count indictment with various offenses of continuous sexual abuse of
a child, aggravated sexual assault of a child, and indecency with a child. A first trial ended with a jury
unable to reach a verdict. Following a second trial, the jury returned a guilty verdict on the lesser included
offense of aggravated sexual assault of a child under Count 1 of the indictment.
                                             Background

        The complainant in this case, N.S., was twenty-one at the time of trial. The

offenses with which appellant was charged occurred before she was fourteen years

of age.

        N.S. testified that, as a child, her family moved around quite a bit, particularly

in the Plano area. She, along with her mother and brothers,2 lived with appellant,

whom she referred to as her stepfather, for a time when she was in the fifth to the

seventh grades. The family lived for about a year in an apartment near a McDonald’s

where her mother worked; the family shared one bedroom. They later moved to an

apartment near a Braum’s where N.S. shared a second bedroom with her brother “J”

who was around five years old. It was during the school year3 when the family lived

near the McDonald’s that “everything started.”

        The first assault occurred when her mother was working and not at home. N.S.

was asleep in her bed when she felt something behind her. When she turned around

appellant came towards her and “did something.” N.S. testified that appellant “came

on top” of her, put his body against hers, and started “doing some things.” N.S. could

feel appellant’s chest and his “down part” which was touching her skin to skin on


    2
      N.S.’s brothers were “J” and “F;” no last name was given for either. Appellant was “F’s” biological
father; that child was not born yet when they lived in the apartment by the McDonald’s but was by the time
they lived near the Braum’s. By the time of trial she also had a third brother, “R;” again, no last name was
given, but he was not appellant’s biological child.
    3
     N.S. testified that when she was in the fourth or fifth grade she went to summer school. Her memory
of when this assault occurred was when she was “going to school normally.”

                                                   –2–
her “private part” on the top of the two lips on her private part.4 N.S. was screaming

and trying to push appellant away. Appellant put his hand on the top of her mouth.

        Eventually, appellant stopped, though N.S. could not recall how. N.S. grabbed

her night clothes and ran to the living room where her younger brother “J” was

watching television. She then went to the bathroom where she took a shower because

she “felt dirty.” Appellant told her not to tell her mother. N.S. testified that she did

not tell anyone about this incident because she was scared.

        The second assault happened when N.S. was living in the apartment by the

Braum’s. One morning she woke to find appellant on top of her. She described this

incident as follows:

        When he came into our bedroom, mine and my brother’s, he took my
        pants off and – same thing – got on my chest, turned me around, I
        believe, and he was on top of me. And I was pushing him away, because
        he was doing the same thing as the first time. And he put his hands on
        top of my mouth, and I guess I was moving kind of bad, and my brother
        woke up and saw me and him, and my brother was confused.

        N.S. testified that she could feel appellant’s “down part” on the same place,

the lips of her private part, but “this time it went a little bit inside.” It was not a good

feeling. Appellant left the bedroom when her brother woke. N.S. cried, then put her

pajama pants back on and went to bed.




    4
      N.S. was uncomfortable using words other than “private part” or “down part” to discuss genitalia.
During the course of her testimony, N.S. never used the words “penis” or “vagina.” She testified that the
“down part” of a male is what men use to go to the restroom. As a female, N.S. had only one private part
in the front, down part of her body; this was different from her chest or her “butt.”
                                                  –3–
      N.S. recounted what she considered to be a third attempted assault in yet a

third apartment the family lived in. She was ironing her clothes and getting ready for

school when she heard appellant trying to break into her locked bedroom. He was

saying “Let me come in.” N.S. said “no” and told appellant if he got close to her that

she would burn herself with the iron. Appellant said “don’t do it.” N.S. told appellant

to go away and leave her alone. He left the apartment.

      After this third incident, N.S. went to school and told her counselor what had

happened. She later told her grandfather, who got mad. Her grandfather got an

apartment for N.S. to live in with her mother and brothers away from appellant. N.S.

testified that she last saw appellant when she was twelve or thirteen and in the

seventh grade. She had never been married to appellant.

      N.S. also testified that she tried to talk to her mother but her mother would not

pay any attention to her. Even after the school counselor came to her house and told

her mother what was going on, her mother “still didn’t care.”

      N.S. testified that she not like remembering these assaults or talking about

them. It affected her when she married because she had wanted to be a virgin and

“normal;” she did not want to feel “disgusted” with her body. Even though these

assaults had occurred a long time ago, she was not going to forget them. She wanted

to get counseling but had not been able to because she had to work every day to pay

for her expenses. She also feared that counselors would judge her. Her mother had



                                         –4–
said bad things to her, and she was afraid that others would say the same things to

her.

       The prosecution presented evidence that Child Protective Services began an

investigation on appellant in October of 2010. The family was contacted in Fort

Worth where they were living at the time. Both N.S. and her mother identified

appellant from photographic lineups.

       N.S. was interviewed at the Children’s Advocacy Center in Fort Worth; she

was thirteen years old at the time of her interview. N.S. was also referred to Cook

Children’s Hospital for a SANE exam.

       Investigating detectives obtained N.S.’s school records from which they were

able to determine what schools she attended in Plano and the home addresses shown

in those records. The addresses of the apartments obtained from these records were

all in the City of Plano in Collin County. After establishing that these assaults

occurred at two apartments in Plano, the investigator subsequently made a report to

the Plano Police Department. Based on the location of these apartments, and the time

frame in which the parties lived there, it was determined that N.S. was assaulted by

appellant between approximately the years 2006 and 2009 when she would have

been between the ages of nine and twelve.

       The detectives were also able to determine appellant’s date of birth –

December 20, 1983 – and that appellant was over the age of seventeen at the time

the assaults occurred. Appellant was already out of the home during this
                                        –5–
investigation. Investigators and detectives were unable to make contact with

appellant.

      A Plano detective was able to contact the original teacher from her middle

school to whom N.S. had made outcry. The detective learned N.S. kept a journal that

might be important to the investigation, but he was unable to obtain that journal or

collect any type of physical evidence.

      A grand jury referral was done on January 28, 2011. The police, however,

were unable to locate appellant and the case was dormant for several years before

appellant was arrested and finally brought to trial.

                           1. Sufficiency of the Evidence

      Appellant claims that the evidence is insufficient to support his conviction for

aggravated sexual assault of a child. Specifically, appellant claims that N.S. was not

credible because she gave “vague” testimony and admitted that her memory was

poor. Appellant further claims that, because there was no physical evidence or other

testimonial evidence to “bolster” her claims, no rational trier of fact could have

found the essential elements of the offense beyond a reasonable doubt. The State

responds that N.S. described two assaults in sufficient detail for the jury to believe

her testimony. The State further responds that N.S.’s testimony was corroborated by

the police investigation which showed the locations where she lived and who she

initially informed of the assaults. We agree with the State.



                                         –6–
Standard of Review

      In determining whether the evidence is sufficient to support a criminal

conviction, we apply well-established standards. See Jackson v. Virginia, 443 U.S.

307, 316 (1979); Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010). We

view the evidence in the light most favorable to the verdict and determine whether a

rational jury could have found all the elements of the offense beyond a reasonable

doubt. Jackson, 443 U.S. at 313; Brooks, 323 S.W.3d at 899. The jury, as the fact-

finder, may make reasonable inferences from the evidence presented at trial in

determining appellant’s guilt. Hooper v. State, 214 S.W.3d 9, 14–15 (Tex. Crim.

App. 2007). When there is conflicting evidence, we presume the fact-finder resolved

those conflicts in favor of the verdict and defer to that resolution so long as it is

supported by the evidence. Jackson, 443 U.S. at 326; Clayton v. State, 235 S.W.3d

772, 778 (Tex. Crim. App. 2007).

      We also defer to the trier of fact’s determinations of witness credibility and

the weight to be given their testimony. Jackson, 443 U.S. at 319; Brooks, 323

S.W.3d at 899. Our role as an intermediate appellate court is restricted to guarding

against the “rare occurrence when a factfinder does not act rationally.” Isassi v. State,

330 S.W.3d 633, 638 (Tex. Crim. App. 2010) (quoting Laster v. State, 275 S.W.3d

512, 518 (Tex. Crim. App. 2009)).




                                          –7–
Testimony of the Complainant

        In order to convict appellant of aggravated sexual assault of a child under the

indictment in this case, the jury was required to find that appellant intentionally or

knowingly caused his sexual organ to contact the female sexual organ of N.S., a

child under 14 years of age who was not then appellant’s spouse. See TEX. PENAL

CODE ANN. § 22.021(a)(1)(B)(iii).

        The testimony of a victim alone, even if that victim is a child, is sufficient to

support a conviction for sexual assault of a child. Revels v. State, 334 S.W.3d 46, 52

(Tex. App.—Dallas 2008, no pet.); Tear v. State, 74 S.W.3d 555, 560 (Tex. App.––

Dallas 2002, pet. ref’d); see also TEX. CODE CRIM. PROC. ANN. art. 38.07(a).

Corroboration of a child victim’s testimony by medical or physical evidence is

unnecessary. Turner v. State, 573 S.W.3d 455, 459 (Tex. App.—Amarillo 2019, no

pet.)

        Here, N.S. described two instances of sexual assault committed against her by

appellant when she was under the age of fourteen. The jury believed N.S., as it was

entitled to do. While her testimony was occasionally imprecise, particularly as to

times and dates, that is not sufficient for us to find that the jury’s verdict was

irrational or without evidentiary support. See Revels, 334 S.W.3d at 52–53 (holding

that the evidence was sufficient to sustain a conviction where the victim testified to

facts of offense that happened eight years prior to trial, even though she did not

remember certain details of other matters at the time and gave conflicting responses
                                           –8–
on other matters). This is especially true because N.S. testified that, while she did

not like remembering these assaults or talking about them, she was not going to

forget them.

Corroboration of Certain Facts

      While N.S.’s testimony did not require corroboration, the State presented

corroborating evidence from the C.P.S. and police investigation which showed the

locations where she lived, the schools she attended, and who she initially informed

of the assaults. From this evidence the police were able to determine the time frame

of the assaults, i.e., between approximately the years 2006 and 2009. The police

were also able to determine that N.S. was under the age of thirteen and appellant was

over the age of seventeen at the time the assaults occurred.

      We conclude that a rational trier of fact could have found the essential

elements of the offense beyond a reasonable doubt. Therefore, the evidence is

sufficient to uphold appellant’s conviction for aggravated sexual assault of a child.

We overrule appellant’s first issue.

                               2. Leading Questions

      Appellant claims that the trial court improperly allowed the prosecutor to ask

N.S. leading questions on multiple occasions throughout her testimony on direct

examination. The State responds that the trial court did not abuse its discretion by

allowing the prosecutor to ask the complained-of questions because, when viewed



                                         –9–
in context, those questions helped develop N.S.’s testimony. We agree with the

State.

Standard of Review for Leading Questions

         The Rules of Evidence generally prohibit leading questions on direct

examination except where such questions may be necessary to develop the witness’s

testimony. TEX. R. EVID. 611(c). Leading questions are questions that suggest the

desired answer, instruct the witness how to answer, or put words into the witness’s

mouth to be echoed back to the prosecutor. Wheeler v. State, 433 S.W.3d 650, 655

(Tex. App.—Houston [1st Dist.] 2014, pet. ref’d); Newsome v. State, 829 S.W.2d

260, 269 (Tex. App.—Dallas 1992, no pet.). The mere fact that a question may be

answered by a simple “yes” or “no” does not render it an impermissibly leading

question. Newsome, 829 S.W.2d at 269. It is only when the question suggests which

answer is desired, “yes” or “no,” that it becomes a leading question. Id.

         We review a trial court’s decision to allow a prosecutor to lead a State’s

witnesses for abuse of discretion. Hernandez v. State, 643 S.W.2d 397, 400 (Tex.

Crim. App. 1982); see also Wyatt v. State, 23 S.W.3d 18, 28 (Tex. Crim. App. 2000)

(noting that while the rules generally prohibit leading questions “some leading

questions are acceptable at the trial court’s discretion”). Abuse of discretion cannot

usually be shown unless a defendant can demonstrate that he was unduly prejudiced

by virtue of such questions. Wyatt, 23 S.W.3d at 28; Hernandez, 643 S.W.2d at 400).



                                        –10–
Questions, Answers and the Trial Court’s Ruling

         The record reflects that appellant objected multiple times on grounds that the

prosecutor was leading N.S. Five of these objections were sustained and the others

were overruled. On appeal, appellant complains of only two instances5 during N.S.’s

testimony where the trial court overruled appellant’s objections that the prosecutor

was leading the witness. Neither instance requires us to reverse this conviction.

                                   1. Clarification of Body Parts

         Appellant complains of the following question, answer and the trial court’s

ruling:

                 Q. [BY THE PROSECUTOR] Where was his down part on your
         body?

                 A. I guess just top of it.

                 Q. Top of what?

                 A. My private part.

                 Q. When you say the top of it, tell me what you mean.
   5
       The State addresses a third instance where appellant’s leading objection to testimony was overruled:

                Q. [BY THE PROSECUTOR] So if you were born July 23, 1997, when you turned
         one, would you agree that that year would have been July 23rd of 1998?

                 A. Yes.

                 Q. All right.

                 [DEFENSE COUNSEL] Your Honor, I am going to object to the leading nature of
         these questions.

                 THE COURT: Overruled.

         In his brief to this Court, however, appellant does not complain of this question, answer or ruling.

                                                    –11–
              A. Like, you can say, it was touching skin to skin.

            Q. Do you know how, down there on the private part of a girl,
       how you have two lips?

              A. Yeah.

              Q. And then you have some hair above that?

              A. Um-hmm.

              Q. Is that a “yes”?

              A. Yes.

             [BY DEFENSE COUNSEL] Objection as to leading, Your
       Honor. She’s been asked a question, and we’re having an absolutely
       leading question about the specificity.

              THE COURT: Overruled.

After the objection was overruled, the prosecutor asked N.S. where on her private

part appellant’s “down part” touched her. N.S. replied, without objection: “It was,

like, the top of the lips.”

       The first count of the multi-count indictment against appellant alleged the

offense of continuous sexual abuse of a child; one of the acts of sexual abuse alleged

in this count included aggravated sexual assault by causing N.S.’s female sexual

organ to contact appellant’s male sexual organ. This part of the indictment required

the State to prove that N.S.’s female sexual organ was contacted by appellant’s male

sexual organ.




                                         –12–
      As noted above, N.S. was very uncomfortable discussing both the male and

female genitalia and never used the words “penis” or “vagina” during her testimony.

The prosecutor’s question was obviously designed to establish that appellant’s male

sexual organ contacted N.S.’s female sexual organ. See Rodriguez v. State, 997

S.W.2d 640, 642–43 (Tex. App.—Corpus Christi–Edinburg 1999, no pet) (holding

there was no abuse of discretion where the trial court allowed leading questions

regarding body parts and penetration); Timlin v. State, 983 S.W.2d 65, 70 (Tex.

App.—Fort Worth 1998, pet. ref’d) (holding there was no abuse of discretion where

the trial court allowed leading questions as to which particular part of the

complainant’s anatomy was licked by the defendant). Given the nature of N.S.’s

testimony, the trial court did not abuse its discretion by allowing the prosecutor to

clarify the body parts involved in the sexual assault.

                      2. The Complainant’s Fear of Appellant

      Appellant complains of the following question, answer, and the trial court’s

ruling:

              Q. [BY THE PROSECUTOR] Why didn’t you tell your mom?

              A. I was scared.

              Q. What were you scared of?

              A. Of me, my mom, my brother, of, like, where we’re going to
      live.

              Q. Why were you scared of that?

                                         –13–
            A. I didn’t want me and my brother to be separated with my mom
      or something.

             Q. Were you scared of anything else if you told your mom?

           [BY DEFENSE COUNSEL] Objection to leading again, Your
      Honor.

             THE COURT: Overruled.

           THE WITNESS: I was scared that if he was going to do me
      something wrong.

             Q. (BY THE PROSECUTOR) What do you mean?

             A. As in killing me or my brother or my mom.

      The prosecutor’s question did not suggest an answer or attempt to put words

in N.S.’s mouth to be “echoed back.” The question merely focused N.S.’s testimony

on a new subject, i.e., that she was scared of something else bad happening. As a

result, the question was not a leading question.

      Additionally, even if the question could be considered leading, N.S. had

already testified, over a hearsay objection, that appellant told her not to tell her

mother. She had also already testified that she was too scared to tell anyone what

happened. Because the evidence of N.S.’s fear of appellant and of telling someone

what happened was already before the jury, there is no error. See Newsome, 829

S.W.2d at 270 (citing Hernandez, 643 S.W.2d at 400–01) (holding that no prejudice

was shown when the testimony elicited by the complained-of leading questions had

already been presented to the jury without recourse to leading questions); Myers v.

                                        –14–
State, 781 S.W.2d 730, 733 (Tex. App.—Fort Worth 1989, pet. ref’d) (holding that

leading questions were not prejudicial because, to the extent they elicited any

information for the first time, they merely clarified prior testimony).

No Harm is Shown

       Even if we were to find that the trial court erred by overruling either of these

objections, we would not find reversible error because appellant has not shown that

he was unduly prejudiced by these questions. Appellant avers only that the questions

were “intentionally prejudicial” and prevented him from receiving a fair trial; he

fails to provide any specifics as to precisely how he was harmed.

       Further, we fail to perceive that the prosecutor was asking these questions in

an effort to suggest answers to N.S. or put words in her mouth. On cross-

examination, N.S. was questioned by defense counsel about whether the prosecutor

had helped her in her testimony:

              [BY DEFENSE COUNSEL] And I noticed that you had some
       difficulty answering some of the District Attorney’s questions?

              A. Yes.

              Q. Is it true that she was helping you answer those questions?

              A. No. I was answering that I remember. She never – she was
       just there, you know, to help me out.

              Q. Right, to help you out.

On re-direct examination, the prosecutor established that she had not told N.S. how

to testify:
                                           –15–
             Q. [BY THE PROSECUTOR] You mentioned – or you were
      asked some questions about me being here to help you and things such
      as that. What have I told you that your only job is?

             A. To tell the truth.

             Q. Have I ever told you what to say?

             A. No, ma’am.

It is clear from this testimony that the prosecutor was not suggesting answers to any

questions and that N.S. was testifying from her own memory, in her own words, and

of her own accord.

      Further, the trial court was actively engaged in the process to ensure that the

testimony was the witness’s rather than her adoption of the prosecutor’s questions.

This is reflected in the fact that the trial court sustained five of appellant’s leading

objections. The trial court was, in fact, carefully exercising its discretion.

      We conclude that the trial court did not abuse its discretion by overruling the

complained-of objections to the prosecutor’s questions. We overrule appellant’s

second issue.

                                      Conclusion

      The trial court’s judgment is affirmed.

                                              /Leslie Osborne/
                                              LESLIE OSBORNE
                                              JUSTICE
DO NOT PUBLISH
TEX. R. APP. P. 47.2(b)
181448F.U05

                                          –16–
                                   S
                            Court of Appeals
                     Fifth District of Texas at Dallas
                                 JUDGMENT

ERMITANO RODRIGUEZ,                           On Appeal from the 366th Judicial
Appellant                                     District Court, Collin County, Texas
                                              Trial Court Cause No. 366-82911-
No. 05-18-01448-CR          V.                2016.
                                              Opinion delivered by Justice
THE STATE OF TEXAS, Appellee                  Osborne. Justices Whitehill and
                                              Nowell participating.

    Based on the Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.


Judgment entered February 24, 2020.




                                       –17–
