Rufino Sandoval v. State
14-16-00109-CR
| Tex. App. | Jul 20, 2017Background
- Appellant Rufino Sandoval was indicted and convicted by a jury of aggravated sexual assault of a child under 14 for penetrating his daughter; sentence: 30 years.
- The complainant (daughter) testified to vaginal penetration when she was ten; she also described other prior sexual acts by appellant.
- Two other female relatives (an ex–sister-in-law and a niece) testified about separate sexual acts by appellant when they were under 14.
- Appellant gave a recorded statement admitting only that he kissed the ex–sister-in-law as a child and denied other sexual misconduct; he also testified at trial denying any sexual contact with the accusers.
- The trial court denied appellant’s requested jury instruction on the lesser-included offense of indecency with a child (by contact); appeal challenges that denial.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Sandoval) | Held |
|---|---|---|---|
| Whether the trial court erred by denying a lesser-included instruction for indecency with a child by contact | Instruction not required because evidence supports aggravated sexual assault (penetration) and no evidence rebuts penetration element | Some testimony and the jury’s credibility choices could support finding only indecency by contact rather than penetration | Court affirmed: no error — record lacks evidence directly germane to indecency-by-contact that rebuts penetration element |
Key Cases Cited
- Cavazos v. State, 382 S.W.3d 377 (Tex. Crim. App.) (articulates Rousseau two-step lesser-included test analysis)
- Rousseau v. State, 855 S.W.2d 666 (Tex. Crim. App.) (establishes two-step approach for lesser-included instructions)
- Bullock v. State, 509 S.W.3d 921 (Tex. Crim. App.) (explains requirement for evidence affirmatively raising lesser offense and low threshold ‘‘more than a scintilla’’ standard)
- Evans v. State, 299 S.W.3d 138 (Tex. Crim. App.) (holds indecency-by-contact can be a lesser-included offense of aggravated sexual assault when predicated on same act)
- Hendrix v. State, 150 S.W.3d 839 (Tex. App.—Houston [14th Dist.]) (denied lesser-included instruction where evidence of touching did not rebut penetration testimony)
- Lofton v. State, 45 S.W.3d 649 (Tex. Crim. App.) (defendant’s testimony of innocence alone does not justify lesser-included instruction)
- Maldonado v. State, 461 S.W.3d 144 (Tex. Crim. App.) (explains separate-day indecency offenses are not lesser-included offenses of a penetration offense)