                                       In The

                                 Court of Appeals
                     Ninth District of Texas at Beaumont
                              _________________
                               NO. 09-13-00223-CR
                              _________________

                      MIGUEL ANGEL CANO, Appellant

                                          V.

                       THE STATE OF TEXAS, Appellee
________________________________________________________________________

                    On Appeal from the 221st District Court
                         Montgomery County, Texas
                       Trial Cause No. 13-03-02650 CR
________________________________________________________________________

                           MEMORANDUM OPINION

      Miguel Angel Cano appeals his conviction for the offense of continuous

sexual abuse of a child. Cano argues his conviction is not supported by sufficient

evidence and that the trial court erred when, on its own motion, it dismissed a juror

at the opening of trial. We affirm the trial court’s judgment.

                                   I. Background

      Cano was charged by indictment with the felony offense of “continuous

sexual abuse of [a] child[,]” to which he pleaded “not guilty[.]” The jury found


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Cano guilty of continuous sexual abuse of a child and assessed punishment at

seventy-five years of confinement and a $10,000 fine. Cano filed a motion for new

trial on grounds that, among other things, the evidence is legally and factually

insufficient to support the verdict. Cano’s motion for new trial was denied by

operation of law.1 Cano now appeals his conviction.

                           II. Sufficiency of the Evidence

      In his first issue, Cano asserts the evidence was legally insufficient to

support his conviction for continuous sexual abuse of a child. In evaluating a

challenge to the sufficiency of the evidence supporting a criminal conviction, we

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

any rational factfinder could have found the essential elements of the offense

beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App.

2010) (citing Jackson v. Virginia, 443 U.S. 307 (1979)) (determining that Jackson

standard “is the only standard that a reviewing court should apply” when

examining sufficiency of evidence); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim.

App. 2007); Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). The

issue on appeal is not whether the appellate court believes the State’s evidence or

believes that appellant’s evidence outweighs the State’s evidence. Wicker v. State,

667 S.W.2d 137, 143 (Tex. Crim. App. 1984). Rather, the jury is the ultimate

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          Tex. R. App. P. 21.8(c).
                                         2
authority on the credibility of witnesses and the weight to be given their testimony.

Brooks, 323 S.W.3d at 894-95; Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Crim.

App. 1999); Penagraph v. State, 623 S.W.2d 341, 343 (Tex. Crim. App. [Panel

Op.] 1981). We give deference to the jury’s responsibility to “‘fairly resolve

conflicts in [the] testimony, to weigh the evidence, and to draw reasonable

inferences from basic facts to ultimate facts.’” Hooper, 214 S.W.3d at 13 (quoting

Jackson, 443 U.S. at 318-19). When faced with conflicting evidence, we presume

the trier of fact resolved conflicts in favor of the prosecution. Turro v. State, 867

S.W.2d 43, 47 (Tex. Crim. App. 1993). If any rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt, we must

affirm. See McDuff v. State, 939 S.W.2d 607, 614 (Tex. Crim. App. 1997). “Our

role on appeal is restricted to guarding against the rare occurrence when a

factfinder does not act rationally[;] . . . . we will uphold the verdict unless a

rational factfinder must have had reasonable doubt as to any essential element.”

Laster v. State, 275 S.W.3d 512, 517-18 (Tex. Crim. App. 2009) (footnotes

omitted).

      The indictment alleged that Cano committed the offense of continuous

sexual abuse of a child, L.L., who was younger than fourteen years of age. A

person commits the offense of continuous sexual abuse of a child if:



                                         3
      (1) during a period that is 30 or more days in duration, the person
      commits two or more acts of sexual abuse, regardless of whether the
      acts of sexual abuse are committed against one or more victims; and

      (2) at the time of the commission of each of the acts of sexual abuse,
      the actor is 17 years of age or older and the victim is a child younger
      than 14 years of age.

Tex. Penal Code Ann. § 21.02(b) (West Supp. 2014). An “act of sexual abuse” is

an act that violates one or more laws, including indecency with a child under

section 21.11(a)(1) and aggravated sexual assault under section 22.021. Id. §

21.02(c)(2), (4). A person commits the offense of indecency with a child if the

person engages in sexual contact with the child or causes the child to engage in

sexual contact, or with intent to arouse or gratify the sexual desire of any person,

exposes his anus or any part of his genitals knowing the child is present or causes

the child to expose the child’s anus or any part of her genitals. Id. § 21.11(a) (West

2011). 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 under the age of fourteen by any means. Id. § 22.021(a)(1)(B)(i), (a)(2)(B)

(West Supp. 2014).

      In this case, the indictment alleged that Cano committed two or more acts of

sexual abuse against L.L., including: aggravated sexual assault of a child by

penetrating the sexual organ of the child with his finger and indecency with a child

by contact, by touching the sexual organ of the child with his finger. The
                                          4
complaining witness, L.L., was ten years old at the time of trial. L.L. testified that

Cano touched her in the “middle part” of her body, which she described as the part

used for urination. L.L. provided detailed testimony regarding Cano’s

inappropriate touching and ultimately his digital penetration of her vagina. L.L.

testified that Cano inappropriately touched her approximately ten times. She

recalled that she was six or seven years old the first time he touched her

inappropriately. She testified that Cano first touched her inappropriately before

July of 2008 when Cano’s daughter was born. She recalled that he also

inappropriately touched her after Cano’s daughter had been born.

      L.L. testified in detail about a specific incident where Cano had sexually

abused her at L.L.’s birthday party, which was held at Cano’s house. According to

L.L.’s mother, the party was for L.L.’s eighth birthday and was held in May 2010.

L.L. described in detail another time when Cano digitally penetrated her vagina

while she was attending a birthday party at Cano’s house for Cano’s daughter.

Cano testified that his daughter’s birthday party was in July 2010. L.L. testified

that because her vaginal area started hurting, she eventually told her mother what

Cano had been doing to her.

      Mother testified that on May 2, 2011, L.L. came into her bedroom at two

o’clock in the morning and told her that her private parts were hurting. Mother

testified that L.L. was crying when she entered the room. Mother testified that she
                                          5
examined L.L.’s private parts and discovered they were “terribly inflamed.”

Mother recalled that L.L. told her that night that Cano had been touching her.

      Karen Trevino was employed by Children’s Safe Harbor as a Sexual Assault

Nurse Examiner (SANE) when she examined L.L. on May 2, 2011. L.L. was eight

years old at the time of the examination. According to Trevino, L.L. described

what had happened to her and L.L.’s description caused Trevino to believe that

L.L. had been digitally penetrated. L.L. told Trevino substantial details and told her

that the touching had hurt her. Trevino testified that the findings of her

examination were consistent with the types of sexual acts described by L.L. given

the time lapse since the last reported incident of abuse.

      Susana Martinez, a staff counselor at Children’s Safe Harbor testified that

L.L. told her that she had come to see Martinez because “her “baby-sitter’s

husband had touched her; had done inappropriate things to her in a sexual

manner.” Martinez testified that L.L. described psychological issues abnormal for a

nine-year-old child, including: difficulty falling asleep and staying asleep,

nightmares, fears of being alone, worry, poor concentration, fear of the alleged

perpetrator, loss of interest in activities she once liked doing, irritability, increased

anger, and enuresis. According to Martinez, these symptoms are consistent with

sexual abuse trauma such as the type of abuse L.L. described to Martinez.



                                           6
      Elias Perez, an investigator at the Conroe Police Department, testified that

he observed L.L.’s interview at Safe Harbor and after observing the interview, he

believed an offense had occurred. Perez testified that he contacted Cano and asked

if he would come to the police station to speak to him about a report that a child

had been harmed at Cano’s home and that Cano was a suspect. Perez testified that

Cano initially denied touching L.L. inappropriately, but as the interview continued

Cano’s story changed. Perez testified:

      From the beginning, of course, it was flat out denial, to ‘I did touch
      the head or the chest.’ And then he would go on to, ‘Okay, I may have
      pulled on the pants.’ And then the -- at one point, it was he does recall
      when she was in the bathroom. It was more disciplinary purposes and
      not sexual reasons that he touched the vagina.

            ....

             [Cano] said he was going to go to the restroom and [L.L.] was
      in the -- she had just got through using the restroom and the door was
      left open. And it was at that point that [Cano] said, ‘Well’ -- he yelled
      at her and said, ‘Why did you leave that door open? For that reason, I
      am going to’ -- you know, ‘I have to discipline you.’

             And at first, [Cano] said he patted her on the stomach. And --
      but -- and then I advised him, ‘She didn’t say you touched her. She
      said you touched her on the vagina.’

            [Cano] said, ‘Well, you are right. I did pat her and hit her on the
      vagina several times and only for disciplinary reasons and not for
      sexual reasons.’




                                         7
Perez testified that Cano’s body language during the interview suggested that Cano

started to accept responsibility for his actions. Perez testified that Cano said, “‘Yes,

I know where I erred.’”

       Perez videotaped his interview of Cano. The videotape was admitted into

evidence and played for the jury. On the videotape, Cano described the incident in

the bathroom. Cano stated that L.L. was in the bathroom sitting on the toilet and he

went inside the bathroom and closed the door. Cano stated,

       It’s because I haven’t touched her but only that time that I tell you, the
       time in the bathroom when I told her to pull up her pants, it’s the only
       time and from that time I have not touched her more, no, no and I tell
       you with all my heart that no.

When asked where he touched L.L., Cano stated, that he “told her put your panties

on, shame on you and [he] touched her there.” When Cano was asked if “there”

indicated L.L.’s “private area[,]” Cano responded, “Yes, yes so she would feel

ashamed, yes, yes.” In Cano’s written statement, he indicates that the bathroom

door was closed and he had to open it. But later in the same statement, Cano

questions why L.L. would not close the bathroom door when she went to use the

facilities.

       During the interview, Cano also stated that one day while he was playing

with his daughter and L.L., his daughter pulled L.L.’s pants down, so he pulled

L.L.’s pants back up. He also described another incident where the two girls were

                                           8
running and he put his hand out to stop L.L. During the interview, Cano stated that

he touched L.L. “over the pants,” but indicated he did not know if he touched her

on the stomach or lower. Perez testified that Cano’s story was not consistent.

      Cano testified on his own behalf and denied ever sexually assaulting L.L.

Cano specifically denied touching L.L.’s vagina and denied admitting to Officer

Perez that he had touched L.L.’s vagina. After being presented with his written

statement, Cano again denied touching L.L.’s “private part” but admitted to hitting

her, but not on her “private part”.

      Cano testified that L.L. had celebrated her birthday at his house and it was

on that day that L.L. told Cano’s wife that Cano had been touching L.L.

inappropriately. Cano testified that L.L. told his wife about the abuse after the

bathroom incident he referenced in his statement. Cano testified that the door to the

restroom was closed, but unlocked. He testified that when he entered the restroom,

he observed L.L. standing up, having finished using the restroom. Cano first

denied closing the door behind him upon entry. After being presented with his

statement to Officer Perez wherein he stated he closed the door behind him, Cano

testified that he closed the door but did not lock it. Cano maintained that he would

never discipline L.L. because she is not his daughter. When asked if he would ever

“hit her or touch her in any way in a form of discipline[,]” Cano responded, “No.

No. Of course not.”
                                         9
      A number of defense witnesses testified that Cano was a hard worker, meant

to suggest by implication that because Cano worked so much he was rarely home

and therefore, had no opportunity to sexually abuse L.L. However, Cano testified

he was present at times in the evening when L.L.’s mother arrived to pick up her

children. Cano also testified that sometimes L.L.’s family would stay late and have

dinner at his house. Moreover, as indicated above, Cano described a few incidents

in which he admittedly encountered L.L. One other defense witness also testified

that Cano was sometimes present in the afternoon when she arrived at the Cano

house after work to pick up her children.

      Rafaela Raudales testified on behalf of Cano. She testified that she was

previously married to a member of L.L.’s family. Raudales testified that about

eight months before trial, she had a conversation with L.L. wherein L.L. denied

that Cano had ever touched her. On cross-examination though, Raudales admitted

that her brother is Cano’s best friend.

      When we look at all the evidence that was before the jury in the light most

favorable to the verdict, it is apparent that L.L. provided ample testimony to

establish that she was under fourteen years of age and that Cano committed a series

of acts of sexual abuse over a period longer than thirty days when Cano was older

than seventeen years of age. See Tex. Penal Code Ann. § 21.02(b). In sexual abuse

cases involving a child, such as this case, the testimony of the child victim alone is
                                          10
sufficient to support a conviction. See Garcia v. State, 563 S.W.2d 925, 928 (Tex.

Crim. App. [Panel Op.] 1978); Lee v. State, 186 S.W.3d 649, 655 (Tex. App.—

Dallas 2006, pet. ref’d); West v. State, 121 S.W.3d 95, 111 (Tex. App.—Fort

Worth 2003, pet. ref’d). Additionally, the jury, as the sole judge of the credibility

of the witnesses, is free to accept or reject some, all, or none of the evidence

presented by either side at trial. Lancon v. State, 253 S.W.3d 699, 707 (Tex. Crim.

App. 2008). We conclude a rational jury could have found the essential elements of

the offense beyond a reasonable doubt. See Brooks, 323 S.W.3d at 912. We

overrule Cano’s first issue.

                                 III. Jury Selection

      In his second issue, Cano complains that the trial judge erred when, on the

court’s own motion, it dismissed a juror over Cano’s objection. Cano complains

that the trial judge erroneously dismissed juror number thirty-seven because the

juror could not read and write in English at a level that was satisfactory to the trial

judge. Cano maintains that “a translator was used with several witnesses to

interpret Spanish testimony for the jury and benefit [of] the proceeding” and that

juror number thirty-seven “would have had more of an advantage with regards to

understanding the testimony as the Spanish speaking witness gave testimony in

their native tongue.” Cano contends that the trial court abused its discretion in



                                          11
dismissing juror number thirty-seven and that the error affected the outcome of the

trial.

         The record reflects that juror number thirty-seven was selected and sworn as

part of the jury panel. Before the beginning of the trial, the trial court indicated that

it had a concern regarding whether juror number thirty-seven had sufficient

knowledge of the English language to understand the evidence and arguments that

would be presented at trial. The trial court questioned juror number thirty-seven

regarding his English proficiency. Over defense counsel’s objection, the trial court,

on its own motion, dismissed juror number thirty-seven and replaced him with the

already-selected alternate juror.

         The trial court’s erroneous excusal of a veniremember will call for reversal

only if the record shows that the error deprived the defendant of a lawfully

constituted jury. Jones v. State, 982 S.W.2d 386, 394 (Tex. Crim. App. 1998).

There is no evidence in the appellate record that the alternate that replaced juror

number thirty-seven was unfit for duty. Because there is no showing in this case

that Cano was deprived of a lawfully constituted jury, we overrule Cano’s second

issue.

         Having decided all of Cano’s issues against him, we affirm the judgment of

the trial court.



                                           12
      AFFIRMED.



                                              ______________________________
                                                     CHARLES KREGER
                                                           Justice

Submitted on August 18, 2014
Opinion Delivered February 18, 2015
Do not publish

Before Kreger, Horton and Johnson, JJ.




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