Kent-Anderson Concrete, L.P. d/b/a Anderson Concrete Construction Company v. John Nailling, Steven Washburn, Kenneth Washburn, Brennan Webber, Donald J. Anderson, Jr., Enterprise Concrete Management,

SUPREME COURT CASES

Laws-info.com » Cases » Texas » 2nd District Court of Appeals » 2007 » Kent-Anderson Concrete, L.P. d/b/a Anderson Concrete Construction Company v. John Nailling, Steven Washburn, Kenneth Washburn, Brennan Webber, Donald J. Anderson, Jr., Enterprise Concrete Management,

State: Texas

Court: Criminal Court of Appeals

Docket No: 02-07-00008-CV

Case Date: 07/26/2007

Plaintiff: DONALD I. POMERANTZ, ANN POMERANTZ, MP LAND, INC., AND DP LAND, INC.

Defendant: JERRY KIRK D/B/A KIRK ROOFING--Appeal from County Court at Law of Guadalupe County

Preview:Jimmie Joe Delgado v. The State of Texas--Appeal from
399th Judicial District Court of Bexar County
/**/
MEMORANDUM OPINION
No. 04-04-00865-CR
Jimmie Joe DELGADO,
Appellant
v.
STATE of Texas,
Appellee
From the 399th Judicial District Court, Bexar County, Texas
Trial Court No. 2003-CR-2887
Honorable Juanita A. V squez-Gardner, Judge Presiding
Opinion by: Alma L. L pez, Chief Justice
Sitting: Alma L. L pez, Chief Justice
Catherine Stone, Justice
Phylis J. Speedlin, Justice
Delivered and Filed: November 23, 2005
AFFIRMED
Jimmie Joe Delgado was found guilty by a jury of one count of aggravated sexual assault of a child and two counts of
indecency with a child by contact. Delgado appeals his conviction on the grounds that the evidence was legally and
factually insufficient to sustain the jury s verdict of guilty. We find that the evidence presented at trial was sufficient to
withstand both the legal and factual sufficiency challenges. The trial court s judgment is affirmed.
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Factual Background
The victim, C.T., was a seven-year old living with her mother, Yvonne Rodriguez, and Delgado in the fall of 2000.
Delgado was Rodriguez s boyfriend at the time. After an examination at the Alamo Children s Advocacy Center
(ACAC) on November 7, 2000, C.T. tested positive for gonorrhea and chlamydia in her vaginal tissue, and herpes type
one in her anus. Dr. Nancy Kellog, medical director of ACAC, reported this finding to Child Protective Services
(CPS).
CPS caseworker Cassandra Nieves was assigned the case and met with C.T., Rodriguez, and Delgado in November of
2000. Nieves told Rodriguez and Delgado that they needed to be tested for sexually transmitted diseases. Rodriguez
tested positive for chlamydia, and Delgado tested positive for gonorrhea and chlamydia. On November 29, 2000,
Nieves met with C.T. at her elementary school. During this interview, C.T. told Nieves that Delgado had touched her.
C.T. specifically told Nieves that Delgado touches her down there and in the back part and she pointed with her finger
to her vagina and her buttocks. C.T. also said that Delgado had touched her front part with his front part and that he
touched her in her mom s bed while her mom was at work. Standard of Review
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 clearly is 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)).
When conducting either sufficiency review, we recognize that the jury may draw reasonable inferences from the
evidence before it. See Jones v. State, 944 S.W.2d 642, 647-48 (Tex. Crim. App. 1996). The jury evaluates the
credibility and demeanor of witnesses and determines the weight afforded contradicting testimony. Cain v. State, 958
S.W.2d 404, 408-09 (Tex. Crim. App. 1997). The jury may choose to accept or reject any or all testimony of any
witness. Williams v. State, 692 S.W.2d 671, 676 (Tex. Crim. App. 1984). We do not substitute our own judgment for
that of the jury. See 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.
Discussion Delgado specifically challenges whether the evidence is sufficient to prove that he was the person who
committed the offense. At trial, C.T., who was then eleven years old, did not name Delgado as her abuser. She did not
remember having problems in her private area, being physically examined, or being interviewed by Nieves. Moreover,
C.T. did not remember ever telling anyone that Delgado was the one who touched her.
Nieves, however, testified that in 2000, C.T. told her that Delgado was the one who touched her. Furthermore,
evidence was presented that Delgado tested positive for two of the same sexually transmitted diseases with which C.T.
was diagnosed. Dr. Kellog testified that in order to test for herpes, a person must have an active outbreak or lesion of
herpes so that the ulcer itself can be swabbed. Delgado was never tested for herpes. Dr. Kellog further testified that the
number one reason a child may recant a statement that he or she was sexually abused is because the child s mother
does not believe them.
Rodriguez testified she did not believe Delgado assaulted C.T. Rodriguez chose to stay with Delgado and sent C.T.
and her other children to live with their grandmother. Delgado s sister and Rodriguez s sister both testified that
Rodriguez s children, including C.T., liked Delgado and were happy living with him.
The jury was required to evaluate the credibility of the witnesses and determine what weight to afford the testimony
presented at trial; the jury could choose to believe or disbelieve all or any part of the testimony presented. We defer to
the jury s evaluation of the credibility of the witnesses in finding the evidence sufficient to sustain Delgado s
conviction. Based on the record before us, and viewing it in the light most favorable to the judgment, we conclude that
a rational trier of fact could have found the essential elements of aggravated sexual assault of a child and indecency
with a child by contact beyond a reasonable doubt. Further, after reviewing the evidence in a neutral light, we do not
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find the verdict clearly wrong or manifestly unjust. Delgado s challenge to the legal and factual sufficiency of the
evidence is overruled.
Conclusion
The trial court s judgment is affirmed.
Alma L. L pez, Chief Justice
DO NOT PUBLISH
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