Fernando Esquivel v. State
13-16-00468-CR
| Tex. App. | Dec 14, 2017Background
- Appellant Fernando Esquivel was convicted by a jury of continuous sexual abuse of a child (Tex. Pen. Code § 21.02(b)) and sentenced to 70 years with no parole; this appeal follows the conviction and sentence.
- The indictment alleged multiple acts between June 1, 2014 and May 3, 2015 against the child D.E., who testified to repeated touching, oral contact, and being made to touch Esquivel.
- The State introduced nurse-exam records and three nurse examiners testified; all reported normal hymenal findings, which experts explained are common even when abuse occurred.
- A Child Advocacy Center (CAC) videotaped forensic interview of D.E. was played to the jury; defense counsel played excerpts during cross-examination and argued portions left misleading impressions.
- Trial rulings contested on appeal included sufficiency of the evidence, competency questioning of D.E. before the jury, admission of the full CAC video under Rule 107, limits on cross-examination of the interviewer and the mother, exclusion of certain medical records, and jury instructions (lesser-included offense and good-conduct time at punishment).
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Esquivel) | Held |
|---|---|---|---|
| Sufficiency of evidence for continuous sexual abuse (≥2 acts over ≥30 days) | Evidence (D.E.’s testimony, CAC interview, nurse records and expert testimony) supports conviction | Insufficient: no eyewitnesses, no confession, no physical/medical proof, inconsistent testimony | Affirmed: cumulative direct and circumstantial evidence sufficient under Jackson v. Virginia standard |
| Court’s competency questioning of child witness in jury’s presence; alleged judicial comment on weight | Court’s brief friendly questioning was to determine ability to understand oath and to make child comfortable; not improper comment on weight | Court’s voir dire in front of jury bolstered child’s credibility and improperly commented on evidence | Overruled: competency may be determined with jury present; no improper comment shown |
| Admission of full CAC videotaped interview under Rule 107 (optional completeness) | Entire video necessary because defense questioning of excerpts created potential false impressions and suggested coaching | Playing two excerpts did not open door to admit the entire video | Affirmed: defense used excerpts and left misleading impressions; Rule 107 justified full-video admission |
| Limits on cross-examination of CAC interviewer and mother (D.S.) | State: trial court allowed meaningful cross-examination and jury was exposed to defense theory; some exclusions were discretionary | Exclusions prevented effective confrontation and impeachment, especially regarding mother’s protective-order affidavit and dismissal | Affirmed: no Confrontation Clause violation as to interviewer; any error re: mother’s cross was non-constitutional and harmless because testimony elsewhere exposed same themes |
| Exclusion of child’s clinic medical records (authentication/hearsay) | Records were not properly authenticated via a qualified custodian; nurses and mother already testified about absence of injury/symptoms | Records would have shown no complaints or injuries and were material to defense | Affirmed: proper predicate lacking; even if error, admission would not have been harmful given other testimony |
| Lesser-included-offense jury instruction | State: may request lesser-included offense instruction if it is an actual lesser-included offense of charged crime | Esquivel: State must also show evidence that defendant is guilty only of lesser offense (Rousseau–Royster second prong) | Affirmed: under Grey, State need only show the instruction is for an actual lesser-included offense; instruction proper |
| Punishment instruction including good-conduct time | State: general parole/good-time instruction informs jury as a concept while cautioning them not to speculate; Luquis allows including good-time explanation | Esquivel: parole/good-time instruction conflicts with statute prohibiting parole for §21.02 offenses and suggests eligibility | Affirmed: trial court properly instructed on good-conduct concept without permitting juror speculation; not reversible error |
Key Cases Cited
- Jackson v. Virginia, 443 U.S. 307 (U.S. 1979) (single-standard sufficiency review)
- Fernandez v. State, 479 S.W.3d 835 (Tex. Crim. App. 2016) (application of Jackson sufficiency standard)
- Sauceda v. State, 129 S.W.3d 116 (Tex. Crim. App. 2004) (scope of Rule 107 optional completeness)
- Credille v. State, 925 S.W.2d 112 (Tex. App.—Houston [14th Dist.] 1996) (admission to avoid misleading jury from partial statements)
- Tovar v. State, 221 S.W.3d 185 (Tex. App.—Houston [1st Dist.] 2006) (Rule 107 application to videotaped interviews)
- Watson v. State, 596 S.W.2d 867 (Tex. Crim. App. 1980) (competency of child witness is for trial court)
- Grey v. State, 298 S.W.3d 644 (Tex. Crim. App. 2009) (State’s burden when requesting lesser-included instruction)
- Luquis v. State, 72 S.W.3d 355 (Tex. Crim. App. 2002) (parole/good-time jury instruction explained)
- Carroll v. State, 916 S.W.2d 494 (Tex. Crim. App. 1996) (scope of cross-examination and confrontation right)
- Potier v. State, 68 S.W.3d 657 (Tex. Crim. App. 2002) (erroneous exclusion/admission of evidence generally non-constitutional)