                                  NO. 12-16-00105-CR

                          IN THE COURT OF APPEALS

              TWELFTH COURT OF APPEALS DISTRICT

                                    TYLER, TEXAS

SAMUEL JOEL ESPARZA,                            §       APPEAL FROM THE 7TH
APPELLANT

V.                                              §       JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                        §       SMITH COUNTY, TEXAS

                                 MEMORANDUM OPINION
       Samuel Joel Esparza appeals from his conviction for aggravated sexual assault of a child.
In one issue, he challenges the legal sufficiency of the evidence. We affirm.


                                         BACKGROUND
       The State charged Appellant with aggravated sexual assault of S.B., a child. Appellant
pleaded “not guilty” to the charged offense.
       At trial, Y.B., S.B.’s mother, testified that she and Appellant once lived together in Tyler
at a residence that S.B. referred to as the “roach house.” She and Appellant share a son.
Appellant cared for the children when Y.B. worked overnight. When Appellant told her that
S.B. was not sleeping, Y.B. questioned S.B. In response, S.B. told her that Appellant put his
“wiener” in her. Y.B. testified that S.B. laughed about it and she did not believe S.B. When
Y.B. questioned Appellant about the allegations, Appellant became upset.
       Y.B. testified that, after they moved to a new house, Appellant was under the influence of
K2 when he confessed to touching S.B. When Y.B. inquired further, Appellant repeated the
confession.   Y.B. asked S.B. if Appellant had been touching her. S.B. replied, “No, but
remember what happened at the roach house?” Y.B. testified that Appellant’s sister forced her to
take S.B. to the emergency room two or three days later. She still disbelieved S.B.’s allegations.
However, Sergeant Bryan Bulman with the Tyler Police Department testified that he has never
known of someone under the influence of K2 to spontaneously confess to sexual abuse of a
child. He had no experience with individuals hallucinating about the past; rather, people under
the influence usually hallucinate about present events.
       Dr. Francisco Gonzalez testified that S.B. was eight years old when Y.B. brought her to
the emergency room in August of 2015. He testified that Y.B. suspected that S.B. had been
sexually assaulted. Chief investigator Victor Smith with the Leon County Sheriff’s Office
testified that the sheriff’s office received a telephone call from the emergency room regarding an
outcry of sexual assault. Leon County subsequently transferred the case to Smith County when
investigators determined that the offense had occurred in Smith County. Jean Long with the
Texas Department of Family and Protective Services testified that she developed a safety plan
that required Appellant to leave the home and have no contact with S.B. or her brother during the
investigation.
       Cameron Collins, a forensic interviewer with Scotty’s House Child Advocacy Center,
testified that during an interview, S.B. did not disclose any sexual abuse. She described S.B. as
withdrawn, closed off, and nervous. She testified that S.B. would not promise to be truthful, and
that she kept looking at the cameras in the interview room. Collins could not say that there had
been any coaching or fabrication of S.B. at the time of the interview.
       Detective Jennifer Stockwell with the Smith County Sheriff’s Department testified that,
during a recorded interview, Y.B. stated that S.B. claimed she and Appellant played “doctor” and
that Appellant “put his thing inside” her. Y.B. told Stockwell that she believed S.B. Jane Riley,
a pediatric nurse practitioner, testified that she examined S.B. During the exam, S.B. stated that
something “bad” happened. Initially, S.B. said she did not remember. She eventually told Riley
that Appellant did “bad stuff” and “put his tee tee in [her] private.”        She told Riley that
something “whitish” came out and went in her “tee tee,” which Riley testified was not normal
information for a child to know. S.B. also told Riley that Appellant touched her “tee tee,” put his
“tee tee” in her bottom, and spanked her. She told Riley that Appellant instructed her not to tell
anyone. Riley explained that a child should not understand concepts such as those S.B.
communicated. Although Riley found no physical evidence of abuse, she testified that she did
not expect to find such evidence because of the delayed outcry. She testified that she believed




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S.B.’s account of the abuse. Long testified that, at the conclusion of her investigation, she
determined that there was reason to believe that Appellant sexually assaulted S.B.
       Collins and Detective Stockwell both testified that they know of cases in which a child
did not outcry during a CAC interview, but it was later discovered that abuse did occur. Collins
explained that when a child’s abuser resides in the child’s home, the child may be more hesitant
to disclose abuse and may deny the abuse or recant. She also testified that a child is likely to
recant when they “remain in an unsupported environment with a nonbelieving caregiver.” Riley
felt that children are more comfortable disclosing abuse to medical personnel because they have
experience with doctors and feel they can be trusted. Collins testified that the courtroom is not a
child friendly environment, and it is less likely that a child will disclose abuse in court than in a
CAC interview or a doctor’s office.
       Y.B. testified that, at the time of trial, she did not believe that any abuse had occurred.
She spoke to Appellant almost daily, and planned to reside with him after trial. She admitted
that Appellant asked her to tell the “authorities” that what he had said about touching S.B. was
wrong. According to Y.B., Appellant did not recall saying that he had touched S.B. He also told
Y.B. that she “screwed things up” by telling his sister about the allegations. She testified that
Appellant does not want to “take blame.”         She admitted that, during other conversations,
Appellant told her that she and S.B. needed to say the opposite of what has been “going on” and
that he felt the investigator might try to manipulate S.B. He also told her to tell S.B. to answer
yes or no. He expressed feeling that S.B. had been forced to lie or that someone else was lying.
He also told Y.B. to make sure that S.B. said “everything correctly.”            Y.B. testified that
Appellant wanted S.B. to tell the truth.
       S.B. testified that no one had ever touched her private parts. She acknowledged that
Appellant played “doctor” with her when Y.B. was at work, and that “[h]e was only playing.”
She denied that Appellant used his private parts or hers while playing. She testified that she felt
“bad” when Appellant played “doctor.” She remembered telling Y.B. that Appellant had put his
“thing” inside her, but she claimed that she was not truthful at that time. She did not recall
telling Riley about the abuse. She testified that no one told her what to say at trial, but she did
not know if anyone had ever talked to her about what to say.
       At the conclusion of trial, the jury found Appellant guilty of aggravated sexual assault of
a child. The trial court sentenced Appellant to life in prison. This appeal followed.



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                                 SUFFICIENCY OF THE EVIDENCE
       In his sole issue, Appellant contends that the evidence is legally insufficient to support
his conviction for aggravated sexual assault of a child. According to Appellant, S.B. recanted,
and the remaining evidence raises nothing more than a suspicion that an offense occurred.
Standard of Review
       When reviewing the sufficiency of the evidence, we determine whether, considering all
the evidence in the light most favorable to the verdict, the jury was rationally justified in finding
guilt beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010).
The jury is the sole judge of the witnesses’ credibility and the weight to be given their testimony.
Id. We give deference to the jury’s responsibility to fairly resolve evidentiary conflicts, weigh
the evidence, and draw reasonable inferences from basic facts to ultimate facts. Hooper v. State,
214 S.W.3d 9, 13 (Tex. Crim. App. 2007). Circumstantial evidence is as probative as direct
evidence in establishing the accused’s guilt. Id.
Analysis
       The indictment alleged that Appellant committed aggravated sexual assault by
intentionally and knowingly causing the contact and penetration of S.B.’s sexual organ by his
sexual organ. See TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(i) (West Supp. 2016). The jury
heard testimony that S.B. told Y.B. that Appellant put his “wiener” in S.B. and that Appellant
confessed to touching S.B. Detective Stockwell testified that Y.B. told her that Appellant played
“doctor” with S.B. and “put his thing inside” S.B.          Riley testified that S.B. told her that
Appellant “put his tee tee in [her] private” and something “whitish” came out. The jury heard
Riley explain that a child should not understand these concepts. She and Detective Stockwell
both believed S.B. Additionally, Long testified that there was reason to believe that Appellant
sexually assaulted S.B.
       The jury also heard S.B. testify that no one ever touched her privates, but she felt “bad”
when Appellant played “doctor” with her. She testified to being untruthful when she claimed
that Appellant had penetrated her. However, the jury also heard Collins explain why a child may
hesitate to disclose abuse or recant allegations, and that a child is less likely to disclose abuse in
court. She and Riley both felt that a child is more likely to disclose abuse to a medical
professional, as S.B. did in this case. Additionally, the jury heard evidence suggesting that Y.B.
and Appellant may have at least attempted to influence S.B.’s testimony.



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         As sole judge of the weight and credibility of the evidence, the jury bore the
responsibility of resolving any conflicts in the evidence. See Hooper, 214 S.W.3d at 13. In
doing so, the jury was entitled to credit testimony that Appellant sexually assaulted S.B. and to
disbelieve S.B.’s recantation. See Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App.
1991) (stating that when a complainant recants, the factfinder is responsible for determining
which evidence to believe); see also Chavez v. State, 324 S.W.3d 785, 788 (Tex. App.—
Eastland 2010, no pet.) (holding evidence sufficient despite recantations of mother and
complainant). Accordingly, the jury could reasonably conclude, beyond a reasonable doubt, that
Appellant intentionally and knowingly caused the contact and penetration of S.B.’s sexual organ
by his sexual organ. See TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(i); see also Brooks, 323
S.W.3d at 899; Hooper, 214 S.W.3d at 13. Viewing the evidence in the light most favorable to
the verdict, we conclude that the evidence is legally sufficient to support Appellant’s conviction
for aggravated sexual assault of a child.               See Brooks, 323 S.W.3d at 899.   We overrule
Appellant’s sole issue.
                                                   DISPOSITION
         Having overruled Appellant’s sole issue, we affirm the trial court’s judgment.

                                                                      BRIAN HOYLE
                                                                         Justice

Opinion delivered March 15, 2017.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                             (DO NOT PUBLISH)



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                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                           MARCH 15, 2017


                                         NO. 12-16-00105-CR


                                    SAMUEL JOEL ESPARZA,
                                           Appellant
                                              V.
                                     THE STATE OF TEXAS,
                                           Appellee


                                  Appeal from the 7th District Court
                         of Smith County, Texas (Tr.Ct.No. 007-1545-15)

                        THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
                        It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court
below for observance.
                    Brian Hoyle, Justice.
                    Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
