Ana Deisi Martinez Banos v. State
13-14-00307-CR
| Tex. App. | Oct 21, 2015Background
- Victim (Maritz) testified she was sexually abused by her father Jose from age 6 through adolescence, resulting in two pregnancies; DNA later confirmed incestuous paternity.
- Appellant Ana Deisi Martinez Banos is the victim’s mother and was indicted for aggravated sexual assault alleging penetration of the child’s sexual organ by the defendant’s sexual organ.
- Trial evidence showed the actual penetrator was the father (Jose), while evidence also showed the motherSolicited/encouraged/allowed the abuse and instructed the child to lie to authorities.
- The State prosecuted under an aggravated sexual assault theory and argued party liability (Tex. Penal Code § 7.02) — that the mother aided, encouraged, directed, or solicited Jose’s assaults.
- On appeal the mother argued (1) a fatal variance between indictment alleging the mother as the penetrator and proof showing father as the penetrator, and (2) insufficient evidence to support conviction.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Banos) | Held |
|---|---|---|---|
| Fatal variance between indictment and proof | Indictment properly alleged aggravated sexual assault and authorized submission of party-liability theory; any variance is immaterial | Indictment alleged penetration by Banos’s sexual organ; proof showed father was the penetrator, creating a material variance | Court rejects variance claim: difference between principal and party liability is not a fatal variance when party theory is supported by the evidence |
| Sufficiency of the evidence to support conviction | Evidence showed father committed the assaults and Banos knowingly encouraged, directed, aided, solicited, and coached the victim to lie — satisfies party-liability elements for aggravated sexual assault | Argues there is no proof Banos’s sexual organ penetrated the victim or that she had the requisite intent to promote the offense | Court upholds conviction: viewed in light most favorable to verdict, evidence and reasonable inferences support that Banos was criminally responsible under the law of parties |
Key Cases Cited
- Byrd v. State, 336 S.W.3d 242 (Tex. Crim. App. 2011) (variance standard between indictment and proof)
- Gollihar v. State, 46 S.W.3d 243 (Tex. Crim. App. 2001) (material-variance test)
- Malik v. State, 953 S.W.2d 234 (Tex. Crim. App. 1997) (hypothetically correct jury charge standard)
- Powell v. State, 194 S.W.3d 503 (Tex. Crim. App. 2006) (permitting party-liability submission not explicitly pleaded)
- Sorto v. State, 173 S.W.3d 469 (Tex. Crim. App. 2005) (law of parties principles)
- Marable v. State, 85 S.W.3d 287 (Tex. Crim. App. 2002) (party-liability instruction guidance)
- Goff v. State, 931 S.W.2d 537 (Tex. Crim. App. 1995) (party-liability and charging issues)
- Jackson v. Virginia, 443 U.S. 307 (1979) (standard for sufficiency review)
- Hooper v. State, 214 S.W.3d 9 (Tex. Crim. App. 2007) (circumstantial evidence sufficiency)
- Villarreal v. State, 286 S.W.3d 321 (Tex. Crim. App. 2009) (elements measured by hypothetically correct jury charge)
- Chambers v. State, 805 S.W.2d 459 (Tex. Crim. App. 1991) (credibility determinations for factfinder)
- Miranda v. State, 391 S.W.3d 302 (Tex. App.—Austin 2012) (application of party-liability in sexual assault context)
- Barron v. State, 773 S.W.2d 44 (Tex. App.—Houston [1st Dist.] 1989) (affirming party-liability in sexual-assault setting)