                                IN THE
                        TENTH COURT OF APPEALS

                               No. 10-09-00031-CR

ALEJANDRO ABAD RAMOS,
                                                         Appellant
v.

THE STATE OF TEXAS,
                                                         Appellee



                          From the 40th District Court
                              Ellis County, Texas
                            Trial Court No. 33049CR


                         MEMORANDUM OPINION


       A jury found Appellant Alejandro Abad Ramos guilty of the offense of

continuous sexual abuse of a young child and assessed his punishment at life

imprisonment. Ramos appeals, contending that (1) the trial court erred by admitting

hearsay evidence and (2) the evidence was insufficient to support his conviction. We

will affirm.

       We begin by addressing Ramos’s second issue. Ramos states that the “proper

procedure” for reviewing a sufficiency complaint “is for the appellate court to accept
the inculpatory circumstances, and then to ask if there is a reasonable hypothesis other

than guilt which would also account for such circumstances.”              However, this

“outstanding reasonable hypothesis” construct has long been discarded as the appellate

standard of review. See Geesa v. State, 820 S.W.2d 154, 161 (Tex. Crim. App. 1991),

overruled on other grounds by Paulson v. State, 28 S.W.3d 570 (Tex. Crim. App. 2000);

Desselles v. State, 934 S.W.2d 874, 877-78 (Tex. App.—Waco 1996, no pet.). Furthermore,

the court of criminal appeals recently held that there is “no meaningful distinction

between the Jackson v. Virginia legal-sufficiency standard and the Clewis factual-

sufficiency standard” and that “the Jackson v. Virginia legal-sufficiency standard is the

only standard that a reviewing court should apply in determining whether the evidence

is sufficient to support each element of a criminal offense that the State is required to

prove beyond a reasonable doubt. All other cases to the contrary, including Clewis, are

overruled.”      Brooks v. State, 323 S.W.3d 893, 902, 912 (Tex. Crim. App. 2010).

Accordingly, we will apply the Jackson v. Virginia legal-sufficiency standard to Ramos’s

sufficiency complaint.

       Pursuant to Jackson v. Virginia, when reviewing a challenge to the sufficiency of

the evidence to establish the elements of a penal offense, we must determine whether,

after viewing all the evidence in the light most favorable to the verdict, any rational

trier of fact could have found the essential elements of the offense beyond a reasonable

doubt. 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). Our duty is to

determine if the finding of the trier of fact is rational by viewing all of the evidence

admitted at trial in the light most favorable to the verdict. Adelman v. State, 828 S.W.2d

Ramos v. State                                                                      Page 2
418, 422 (Tex. Crim. App. 1992). In doing so, any inconsistencies in the evidence are

resolved in favor of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App.

2000).

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

         (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. PEN. CODE ANN. § 21.02(b) (Vernon Supp. 2010). Here, K.R. testified that from the

beginning of 2004 to June 2007, she lived in Florida with Ramos, whom she married in

March 2006, and with her three children from a previous marriage, sons S.F. and G.F.

and daughter K.F. Because of financial difficulties, she and her three children moved

back to Ennis, Texas, in June 2007. Ramos stayed in Florida for several more months

but then also moved to Ennis around the end of September or beginning of October

2007.

         The whole family lived in one room at K.R.’s mother’s house in Ennis. The house

was big, and the room had a separate entrance. K.R. and Ramos slept on a bed, and the

children slept on a sofa bed. K.R. regularly worked from 11 a.m. to 8 p.m. four days out

of the week and every Saturday. During the week, the children would come home at

about 4 p.m. When K.R. was not home, K.R.’s mother would take care of the children,

or, when Ramos was home, he would take care of the children. Ramos was without

work for a few weeks when he first returned to Texas but then began working again.

Ramos v. State                                                                         Page 3
He had an unpredictable schedule, but he always worked in Texas. Then, in February

2008, Ramos began working out of state. He would be gone for varying amounts of

time.

        K.R. was at home with the children on Monday evening, March 31, 2008, and

Ramos had been gone to Colorado for about a week. S.F. and K.F. were arguing, and

K.R. heard S.F. call seven-year-old K.F. “nasty.” K.R. asked S.F. why he was saying that

to his younger sister. K.F. eventually told K.R. that “daddy’s been doing nasty stuff to

me.” K.F. referred to Ramos, her stepfather, as “daddy.” K.R. then asked K.F. what

kind of “nasty stuff,” and K.F. told her that Ramos had been sexually assaulting her.

        K.R. took K.F. to Ennis Regional Medical Center. At the hospital, K.R. asked K.F.

how long this had been going on, and K.F. replied that it had been going on since they

lived in Florida.   At some point, K.R. also asked K.F. how many times this had

happened to her, and K.F. said that it had happened “a lot of times.” That included the

time that she was in Texas. The emergency room physician testified that he only

performed a basic exam instead of a detailed exam of K.F. because K.F.’s mother stated

that she was last assaulted ten days prior to the visit. After seventy-two hours, a

detailed exam generally does not show any evidence. The physician stated that when a

detailed exam is not done, he bases his clinical impressions on how a child acts in the

emergency room.       Based upon his time with K.F., her acts and behaviors were

consistent with alleged sexual assault.

        The forensic interviewer at the Ellis County Children’s Advocacy Center testified

that she conducted a forensic interview with K.F. on April 2, 2008.          During the

Ramos v. State                                                                     Page 4
interview, K.F. said that Ramos had been sexually assaulting her and that it happened

“lots of times.” K.F. said to the interviewer that the first time it happened was in

Florida when she was five years old and that the last time that it had happened was the

Monday a week prior to the interview. During the interview, K.F. stated specifically

that it had been happening in the room that the family shared together. K.F. indicated

to the interviewer that it had been happening on a consistent and continual basis in Ellis

County, Texas.

       K.F. testified. She stated that Ramos began sexually assaulting her in Florida

when she was four years old and that it stopped when she was seven years old. She

thought that, in all, it happened more than forty times but less than fifty times. She

testified that it happened at least ten times in Texas and that it happened about every

week when her mom was at work.

       Ramos attempted to show that he had been out of state for much of the time after

he moved to Texas. Ramos’s mother testified that Ramos moved to Texas in October

2007, just before the Day of the Dead, which is at the beginning of November, and that

he was away from Texas working during December of 2007 and January, February, and

March of 2008. Ramos’s employer testified that Ramos was working out of state with

him from late January through April 2, but that he had returned home once for about a

week during that time. A co-worker of Ramos’s testified that they left to go out of state

around the middle or end of January and came back in April and that Ramos had never

come back to Texas during that time.          However, we must defer to the jury’s

determination of the weight to be given to contradictory testimonial evidence because

Ramos v. State                                                                      Page 5
resolution of the conflict is often determined by the jurors’ evaluation of the witnesses’

credibility and demeanor. Johnson v. State, 23 S.W.3d 1, 9 (Tex. Crim. App. 2000); see also

Brooks, 323 S.W.3d at 912 (“[D]irect-appeal courts should review a jury’s verdict under

deferential standards.”).

       Viewing all the evidence in the light most favorable to the verdict, the evidence is

sufficient to support Ramos’s conviction. We overrule Ramos’s second issue.

       In his first issue, Ramos contends that the trial court erred by admitting hearsay

evidence. Specifically, he complains that the trial court erred in overruling his hearsay

objection to K.R.’s testimony about what her sons had told her:

             Q.     Did you ever talk to your sons about anything they may
       have seen or heard?

                 A.    After it happened?

                 Q.    Uh-huh.

             A.      Well, yes, they -- they told me that they would see -- that
       they didn’t see, but that he would tell them to go outside and stay in the
       room with her. And he would lock the doors or he would tell her to get in
       bed with him when the kids were in the other bed when I would leave to
       work.

                 [Defense Counsel]:     I’m going to object to this as hearsay, Judge.

                 THE COURT:      Overruled.

             A.     And that -- well, they would just see where he would pick
       up the covers and she would be under the covers with him. I don’t know
       that.

              THE COURT:         Let me go back to his objection. Are the children
       going to testify?

                 [Prosecutor]:   Yes.

Ramos v. State                                                                           Page 6
                 THE COURT:      All right. Go ahead.

Ramos also complains that the trial court erred in overruling his hearsay objection to

K.R.’s testimony regarding what he said to her when she visited him in jail:

             Q.    Okay. About how many times do you think you’ve seen
       your ex-husband at the jail?

                 A.    Maybe ten.

             Q.        About ten times? And what were your conversations with
       him about?

               A.    At the beginning I was telling him to sign the divorce. Very
       first time I went, I was very upset and I was taking all my anger. I was
       asking him why would he do something like that.

                 Q.    And what would he say to you?

                 [Defense Counsel]:   Objection hearsay.

                 THE COURT:      Overruled.

              A.    Well, at the very first conversation, he wouldn’t say nothing.
       He would just nod his head. I was just like don’t -- I was just talking and
       yelling at him and he was just nodding his head. He wouldn’t say
       nothing.

              Q.    So he never -- in those initial conversations right after he got
       arrested, he never said, oh, my God, she’s making this up. Why is she
       making this up on me or why did she pin this on me? None of those
       conversations?

             A.    The very first one. On the second -- the other conversations,
       he would say that he didn’t do it. That I had to believe him. That he was
       innocent.

                 Q.    Did he ever say that [K.F.] was making it up?

                 A.    No. He just said it wasn’t true.


Ramos v. State                                                                         Page 7
                 Q.    He just said he didn’t do it?

                 A.    Yeah. Correct.

       We review the trial court’s decision to admit evidence under an abuse of

discretion standard. Shuffield v. State, 189 S.W.3d 782, 793 (Tex. Crim. App. 2006). We

will reverse the trial court’s decision only if it is outside the zone of reasonable

disagreement. Id.

       First, the trial court did not abuse its discretion in overruling Ramos’s objection

to K.R.’s testimony about what he said to her when she visited him in jail because a

statement by a party that is offered against the party is not hearsay. See TEX. R. EVID.

801(e)(2). Second, under Rule 44.2(b), a non-constitutional error “that does not affect

substantial rights must be disregarded.” TEX. R. APP. P. 44.2(b). “[S]ubstantial rights are

not affected by the erroneous admission of evidence ‘if the appellate court, after

examining the record as a whole, has fair assurance that the error did not influence the

jury, or had but a slight effect.’” Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App.

2002) (quoting Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001), and Johnson

v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998)).

       In this case, both of K.R.’s sons testified at trial to the same thing that K.R.

testified that they had told her. See King v. State, 953 S.W.2d 266, 273 (Tex. Crim. App.

1997) (stating that potential harm of improperly admitted evidence can be “defused” by

properly admitted evidence). Therefore, any error in the admission of K.R.’s testimony

about what her sons had told her is harmless. See TEX. R. APP. P. 44.2(b). We overrule

Ramos’s first issue.

Ramos v. State                                                                       Page 8
       Having overruled both of Ramos’s issues, we affirm the trial court’s judgment.



                                                REX D. DAVIS
                                                Justice

Before Chief Justice Gray,
       Justice Reyna, and
       Justice Davis
Affirmed
Opinion delivered and filed December 29, 2010
Do not publish
[CRPM]

       *(Chief Justice Gray concurs in the judgment of this Court to the extent that it
affirms the trial court’s judgment. A separate opinion will not issue.)




Ramos v. State                                                                    Page 9
