Emilio Zamora, Individually, and Angela Valenzuela, Individually and as Next Friends of Luz Zamora v. Mark Kazanoff, Jamy Kazanoff, and Ruby Miranda, Individually and Jointly and as Next Friends of Aa

SUPREME COURT CASES

Laws-info.com » Cases » Texas » 3rd District Court of Appeals » 2009 » Emilio Zamora, Individually, and Angela Valenzuela, Individually and as Next Friends of Luz Zamora v. Mark Kazanoff, Jamy Kazanoff, and Ruby Miranda, Individually and Jointly and as Next Friends of Aa

State: Texas

Court: Criminal Court of Appeals

Docket No: 03-07-00315-CV

Case Date: 11/06/2009

Plaintiff: GABINO OCHOA

Defendant: THE STATE OF TEXAS--Appeal from 24th District Court of Victoria County

Preview:William Nathan Clay v. The State of Texas--Appeal
from 290th Judicial District Court of Bexar County
/**/
MEMORANDUM OPINION
No. 04-04-00636-CR
William Nathan CLAY,
Appellant
v.
The STATE of Texas,
Appellee
From the 290th Judicial District Court, Bexar County, Texas
Trial Court No. 2003-CR-0645
Honorable Sharon MacRae, Judge Presiding
Opinion by: Alma L. L pez, Chief Justice
Sitting: Alma L. L pez, Chief Justice
Catherine Stone, Justice
Rebecca Simmons, Justice
Delivered and Filed: October 19, 2005
AFFIRMED
William Nathan Clay appeals his conviction by a jury of aggravated sexual assault of a child and indecency with a
child by sexual contact. The jury assessed Clay s punishment at forty-five years confinement for aggravated sexual
assault and ten years confinement for indecency with a child. On appeal, Clay asserts that the evidence is legally and
factually insufficient to support his convictions. We affirm the judgment of the trial court.
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Discussion
In reviewing a legal sufficiency challenge, we view the evidence in the light most favorable to the verdict, and
determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable
doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Wilson v. State, 7 S.W.3d 136, 141 (Tex. Crim. App. 1999). In
conducting a factual sufficiency review, we view all the evidence in a neutral light and will set aside the verdict only if
the evidence is so weak that the verdict is clearly wrong and manifestly unjust, or the contrary evidence is so strong
that the standard of proof beyond a reasonable doubt could not have been met. Escamilla v. State, 143 S.W.3d 814, 817
(Tex. Crim. App. 2004) (citing Zuniga v. State, 144 S.W.3d 477, 481 (Tex. Crim. App. 2004)).
In conducting our review, we remain mindful of the jury s role and unique position. The jury determines the credibility
of the witnesses and may believe all, some, or none of the testimony. Chambers v. State, 805 S.W.2d 459, 461 (Tex.
Crim. App. 1991). It is the province of the jury to evaluate the credibility and demeanor of witnesses and determine the
weight afforded contradicting testimony. Cain v. State, 958 S.W.2d 404, 408-09 (Tex. Crim. App. 1997). The jury may
draw reasonable inferences from the evidence before it, Jones v. State, 944 S.W.2d 642, 647-48 (Tex. Crim. App.
1996), and has the discretion to accept or reject competing theories of a case. Goodman v. State, 66 S.W.3d 283, 287
(Tex. Crim. App. 2001). We do not substitute our own judgment for that of the jury. Jones, 944 S.W.2d at 648. Rather,
we defer to the jury s findings, particularly those based on credibility determinations. Cain, 958 S.W.2d at 407-09.
Clay argues that the evidence presented at trial is insufficient to support the date in the indictment, which alleges that
the offenses occurred on or about October 1, 2001. The indictment was presented on January 29, 2003 and the trial was
conducted in August 2004. As previously noted, the indictment alleged that the offense occurred on or about October
1, 2001. The complainant was ten at the time of trial. She testified that she had been born on November 16, 1993 and
that she was in the fifth grade at the time of her testimony.
The complainant s mother, Ms. Jones, testified that Clay is the father of the complainant s younger sister. Ms. Jones
further testified that she left the complainant and her younger sister in Clay s care while she and the complainant s
older sister visited New York City for two or three days. Ms. Jones could not recall the exact dates of the New York
trip, however, the complainant testified that she was first sexually assaulted by Clay when she was eight years old
while her mother and older sister were in New York. The complainant testified that Clay put his middle part in [her]
middle part and kept on doing it despite her telling him no. The complainant stated that Clay assaulted her on another
occasion, just after her ninth birthday. The complainant testified that Clay again put his middle part in [her] middle
part.
The complainant first told her older sister what had happened. Upon the urging of her sister, the complainant told her
father, Mr. Jones. Mr. Jones testified that he contacted the police on December 12, 2002 and provided police with a
written statement detailing the complainant s outcry the following day. On December 18, 2002, the complainant met
with Dr. Nancy Kellogg of the Alamo Children s Advocacy Center. Dr. Kellogg testified that the complainant detailed
how she had been sexually assaulted by Clay during September when she was eight years old. Dr. Kellogg stated that
the physical examination of the complainant revealed evidence of penetration. There were no acute lacerations or
bruising, but very little of the complainant s hymen was intact. Dr. Kellogg indicated that this was consistent with
penetration that occurred more than two weeks prior to the examination and caused either stretching or tearing which
had already healed by the time of the examination.
The on or about language of an indictment allows the State to prove a date other than the one alleged as long as the
date proven is anterior to the presentment of the indictment and within the statutory limitation period. See Tex. Code
Crim. Proc. Ann. art. 21.02(6) (Vernon 1989); Wright v. State, 28 S.W.3d 526, 532 (Tex. Crim. App. 2000). The
statute of limitations for both aggravated sexual assault of a child and indecency with a child run for ten years after the
complainant s 18th birthday, which has not yet occurred. See Tex. Code Crim. Proc. Ann. Art 12.01(5)(A) (Vernon
Supp. 2004-2005). The incidents in this case were not investigated nor prosecuted until after they occurred. Therefore,
because the date proven was before the presentation of the indictment and within the statute of limitations, the
evidence is both legally and factually sufficient to support the jury s conclusion that the offenses occurred on or about
October 1, 2001. This portion of Clay s argument is overruled.
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Clay also questions the sufficiency of the evidence with respect to the offense of indecency with a child by sexual
contact. A person commits indecency with a child by engaging in sexual contact with a child under the age of
seventeen. Tex. Pen. Code Ann. 21.11 (Vernon 2003). Sexual contact is defined as touching any part of the genitals of
another person with intent to arouse or gratify the sexual desire of any person. Id. 21.01. Clay argues that the evidence
at trial fails to show that any contact with the complainant was done with the intent to gratify the sexual desire of any
person.
The intent to arouse or gratify the sexual desire of a person can be inferred from conduct, remarks, or all the
surrounding circumstances. See McKenzie v. State, 617 S.W.2d 211, 216 (Tex. Crim. App. [Panel Op.] 1981). The
complainant testified that Clay put his middle part in [her] middle part and kept on doing it. Dr. Kellogg testified that
during her examination of the complainant, the complainant stated that Clay had a plastic thing that he put on his
privates so no one would know and that the complainant also indicated Clay had threatened her if she told. Dr. Kellogg
also testified that the physical examination of the complainant revealed evidence of penetration. The jury was entitled
to infer from the evidence that Clay made the contact with the requisite intent, despite Clay s denials that he
committed the offense. The testimony of a child victim alone is sufficient to support a conviction for indecency with a
child. See Tex. Code Crim. Proc. Ann. art. 38.07 (Vernon Supp. 2004-2005); Tear v. State, 74 S.W.3d 555, 560 (Tex.
App. Dallas 2002, pet. ref d).
Viewing the evidence presented at trial in a light most favorable to the judgment, we conclude that a rational trier of
fact could have found the essential elements of aggravated sexual assault and indecency with a child. Further,
examining all the evidence neutrally, we conclude that the evidence supporting the judgment was not so obviously
weak as to undermine confidence in the jury s determination; nor was the contrary evidence so strong that it greatly
outweighed the proof of guilt. Accordingly, we overrule Clay s first and second issues. Having overruled each of Clay
s issues, we affirm the trial court s judgment.
Alma L. L pez, Chief Justice
Do Not Publish
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