Ancelmo Rodriquez Banda v. the State of Texas

IN THE
TENTH COURT OF APPEALS

No. 10-24-00038-CR

ANCELMO RODRIQUEZ BANDA,
Appellant
v.

THE STATE OF TEXAS,
Appellee

From the 19th District Court
McLennan County, Texas
Trial Court No. 2020-1080-C1

MEMORANDUM OPINION

Following a jury trial, Ancelmo Rodriquez Banda was convicted of one count of

continuous sexual abuse of a young child and two counts of indecency with a child by

contact. See TEX. PENAL CODE ANN. §§ 21.02, 21.11(a)(1). Punishment was assessed at Life

in prison for continuous sexual abuse of a young child and at twenty years in prison for

each count of indecency with a child by contact, to run concurrently. See id. at §§ 21.02(h),

21.11(d). In four issues on appeal, Banda challenges the sufficiency of the evidence
supporting each of his convictions and argues that the trial court abused its discretion by

excusing the State’s expert witness from compliance with Rule 614 of the Texas Rules of

Evidence. See TEX. R. EVID. 614. We affirm.

Background

Ten-year-old B.R. and her older brother, S.R., spent almost every weekend with

their grandmother and her husband, Banda, at their home. Typically, S.R. and his

grandmother would go shopping for a few hours while B.R. stayed at home with Banda.

However, on June 16, 2020, S.R. and his grandmother returned to the home within twenty

minutes of their departure. When S.R. walked into the house, he observed Banda in the

hallway. Banda was not wearing any pants or underwear. Attempting to cover himself

with the pants in his hand, Banda went into the master bedroom. Approximately five

minutes later, B.R. walked into the hallway. Her hair was disheveled and it appeared

that she had been crying. S.R. later reported to his mother what he had seen. B.R.’s

mother and father subsequently questioned her, and B.R. outcried to multiple instances

of sexual abuse by Banda.

Sufficiency of the Evidence

In issues one, two, and three, Banda alleges that the evidence is insufficient to

support all three of his convictions based on the following assertions: B.R. did not provide

“clear, articulate evidence of the acts” committed by Banda, B.R.’s testimony was not

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corroborated by additional evidence, and B.R.’s parents influenced her to falsely outcry

so they could obtain legal immigration status. We disagree.

STANDARD OF REVIEW

The Court of Criminal Appeals has expressed our standard of review of sufficiency

issues as follows:

When addressing a challenge to the sufficiency of the evidence, we
consider whether, after viewing all of the evidence in the light most
favorable to the verdict, 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, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); Villa v. State,
514 S.W.3d 227, 232 (Tex. Crim. App. 2017). This standard requires the
appellate court to defer “to the responsibility of the trier of fact fairly to
resolve conflicts in the testimony, to weigh the evidence, and to draw
reasonable inferences from basic facts to ultimate facts.” Jackson, 443 U.S. at
319. We may not re-weigh the evidence or substitute our judgment for that
of the factfinder. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App.
2007). The court conducting a sufficiency review must not engage in a
“divide and conquer” strategy but must consider the cumulative force of all
the evidence. Villa, 514 S.W.3d at 232. Although juries may not speculate
about the meaning of facts or evidence, juries are permitted to draw any
reasonable inferences from the facts so long as each inference is supported
by the evidence presented at trial. Cary v. State, 507 S.W.3d 750, 757 (Tex.
Crim. App. 2016) (citing Jackson, 443 U.S. at 319); see also Hooper v. State, 214
S.W.3d 9, 16-17 (Tex. Crim. App. 2007). We presume that the factfinder
resolved any conflicting inferences from the evidence in favor of the verdict,
and we defer to that resolution. Merritt v. State, 368 S.W.3d 516, 525 (Tex.
Crim. App. 2012). This is because the jurors are the exclusive judges of the
facts, the credibility of the witnesses, and the weight to be given to the
testimony. Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010).
Direct evidence and circumstantial evidence are equally probative, and
circumstantial evidence alone may be sufficient to uphold a conviction so
long as the cumulative force of all the incriminating circumstances is
sufficient to support the conviction. Ramsey v. State, 473 S.W.3d 805, 809
(Tex. Crim. App. 2015); Hooper, 214 S.W.3d at 13.

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We measure whether the evidence presented at trial was sufficient to
support a conviction by comparing it to “the elements of the offense as
defined by the hypothetically correct jury charge for the case.” Malik v.
State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). The hypothetically correct
jury charge is one that “accurately sets out the law, is authorized by the
indictment, does not unnecessarily increase the State’s burden of proof or
unnecessarily restrict the State’s theories of liability, and adequately
describes the particular offense for which the defendant was tried.” Id.; see
also Daugherty v. State, 387 S.W.3d 654, 665 (Tex. Crim. App. 2013). The “law
as authorized by the indictment” includes the statutory elements of the
offense and those elements as modified by the indictment. Daugherty, 387
S.W.3d at 665.

Zuniga v. State, 551 S.W.3d 729, 732-33 (Tex. Crim. App. 2018).

ANALYSIS

A person commits the offense of continuous sexual abuse of a young child if,

during a period that is thirty or more days in duration, he commits two or more “acts of

sexual abuse” and, at the time of the commission of each act, he is at least seventeen years

of age and the victim is younger than fourteen years of age. See TEX. PENAL CODE ANN. §

21.02(b). Relevant here, an “act of sexual abuse” as charged in the indictment includes

the following acts from on or about November 2, 2017 through June 16, 2020: Banda

causing B.R.’s sexual organ, mouth, and/or anus to contact his sexual organ; Banda

causing B.R.’s sexual organ to contact his mouth; Banda penetrating B.R.’s sexual organ

with his finger; and, Banda touching B.R.’s genitals with his hand. See id. at § 21.02(c)(2),

(c)(4); § 21.11(a)(1), (c)(1); § 22.021(a)(1)(B), (a)(2)(B). To support a conviction for

continuous sexual abuse of a young child, the jury is not required to agree on which

specific acts of sexual abuse were committed by the defendant or the dates on which they
Banda v. State Page 4
occurred; however, the jury must unanimously agree that the defendant committed two

or more acts of sexual abuse over a period of thirty days or more. Id. § 21.02(b)(1), (d).

Banda was alleged to have committed the offense of indecency with a child by

contact on or about December 25, 2019 by touching B.R.’s breast with his hand (count

two) and with his mouth (count three). Id. at § 21.11(a)(1), (c)(1).

B.R., who was fourteen years old at the time of trial, testified that she believed

Banda began touching her when she was in approximately the first grade. She explained

that Banda would touch her “mostly every weekend” when she and S.R. would visit. She

testified that she was in the fourth grade on the last occasion that Banda sexually abused

her, which occurred on the day that S.R. saw Banda half-dressed in the hallway. The first

specific instance of sexual abuse B.R. could recall involved Banda touching her breasts

with his hands over her clothes. B.R. described seeing Banda naked for the first time the

following weekend, when he told her to undress and rubbed his penis around her vagina.

She explained that Banda would touch her breasts with his hands and his mouth almost

every weekend and that Banda would touch her vagina with either his fingers or his penis

every time he would abuse her. B.R. testified that Banda put his fingers inside of her

vagina “[n]ow and then” and also tried to put his penis inside of her vagina, which she

indicated was painful and occurred on more than one occasion. One time, B.R. described

Banda twisting her onto her stomach and attempting to put his penis inside of her anus.

B.R. further testified that Banda would make her put her mouth on his penis and perform

Banda v. State Page 5
oral sex on him occasionally. She described Banda ejaculating into his hand afterward

and making her use Nivea cream around her mouth. B.R. further explained that Banda

would sometimes put his tongue inside of her vagina. Finally, B.R. testified that Banda

had put his mouth on her vagina and rubbed his penis around her vagina on the day that

S.R. observed Banda wearing no pants in the hallway.

The testimony of a child victim, standing alone and without corroboration, is

sufficient to support a conviction for continuous sexual abuse of a young child and

indecency with a child. TEX. CODE CRIM. PROC. ANN. § 38.07. B.R.’s testimony alone was

sufficient to support each of Banda’s convictions; however, contrary to Banda’s

contention, her testimony was corroborated by additional evidence. For example, S.R.’s

testimony at trial corroborated that he and B.R. would visit their grandmother almost

every weekend and that B.R. would often be left alone with Banda at the house. He

described his experience on June 16, 2020, when he observed Banda in the hallway

wearing only his shirt and observed B.R. looking disheveled and upset. Additionally,

B.R. testified that Banda kept pornographic disks in his Suburban, which he would watch

with B.R. and then make her perform the acts they observed. Law enforcement officers

obtained a search warrant and located two pornographic DVDs in Banda’s Suburban. In

their search of Banda’s home, law enforcement also located two containers of the Nivea

lotion described by B.R.

Banda v. State Page 6
Finally, Banda claims the evidence is insufficient to support his convictions

because B.R.’s parents “interrogated” her and influenced her outcry by discussing a

television program with her that involved sexual abuse. He also points to evidence

presented at trial supporting his theory that B.R.’s mother and father had a motive to

encourage B.R. to make a false outcry so they could apply for a U-Visa to obtain legal

immigration status. However, these defensive theories were advanced at trial by defense

counsel, and the jury implicitly rejected these theories by its verdicts. We defer to jury’s

resolution of conflicts in the evidence. See Merritt, 368 S.W.3d at 525.

Viewing the evidence in the light most favorable to the jury’s verdict, we conclude

that a rational trier of fact could have found beyond a reasonable doubt that Banda

committed the offenses of continuous sexual abuse of a young child as alleged in count

one and indecency with a child by contact as alleged in counts two and three. See TEX.

PENAL CODE ANN. §§ 21.02, 21.11(a)(1); Zuniga, 551 S.W.3d at 732-33.

Accordingly, we overrule Banda’s first, second, and third issues.

Dr. Carter’s Testimony

In his fourth issue, Banda asserts that the trial court abused its discretion by

excusing the State’s expert witness from compliance with Rule 614 of the Texas Rules of

Evidence because the State did not establish that the witness’s presence in the courtroom

was essential to the presentation of the State’s case. See TEX. R. EVID. 614. We disagree.

Banda v. State Page 7
STANDARD OF REVIEW AND APPLICABLE LAW

Texas Rule of Evidence 614, commonly referred to as “the Rule,” provides for the

exclusion of witnesses from the courtroom during trial. Id. The purpose of Rule 614 is to

prevent the testimony of one witness from influencing the testimony of another. Russell

v. State, 155 S.W.3d 176, 179 (Tex. Crim. App. 2005). Once Rule 614 is invoked, witnesses

are instructed by the trial court that they may not converse with one another or with any

other person about the case, except with permission from the court, and the trial court

must exclude witnesses from the courtroom during the testimony of other witnesses.

TEX. R. EVID. 614; see TEX. CODE CRIM. PROC. ANN. art. 36.06.

However, Rule 614 does not authorize exclusion of certain witnesses. See TEX. R.

EVID. 614. In criminal cases, those witnesses are

(1) a defendant who is a natural person, the representative of a defendant
that is not a natural person, (2) a person whose presence a party shows to
be essential to the presentation of the party's case, and (3) a victim if the
court does not determine that the victim's testimony would be materially
affected by hearing other testimony.

Russell, 155 S.W.3d at 180 (citing TEX. R. EVID. 614). In particular, the Court of Criminal

Appeals has held that a trial court is vested with discretion and may permit expert

witnesses to be exempt from the Rule so they may hear other witnesses testify and then

base their opinions on such testimony. Lewis v. State, 486 S.W.2d 104, 106 (Tex. Crim. App.

1972); see Martinez v. State, 867 S.W.2d 30, 40 (Tex. Crim. App. 1993); Caron v. State, 162

S.W.3d 614, 618 (Tex. App.—Houston [14th Dist.] 2005, no pet.). “Under Rule 614, a party

Banda v. State Page 8
has the burden to show that its witness is one of those whose exclusion from the

courtroom is not authorized by that Rule.” Russell, 155 S.W.3d at 180 (citing Moore v.

State, 882 S.W.2d 844, 848 (Tex. Crim. App. 1994)).

ANALYSIS

Prior to opening statements, defense counsel invoked the Rule and objected to the

trial court excusing the State’s expert witness in the field of psychology, Dr. William

Carter, from compliance. Defense counsel argued that Dr. Carter’s presence in the

courtroom was not essential to his expected testimony and noted concern with “questions

that would go whether to be - - whether the witness is being truthful or not” based on his

in-trial observations. When the trial court indicated that Dr. Carter could permissibly

educate the jury regarding “normal behavior” in this type of a case, the State responded:

Your Honor, I think that is relevant to this case and relevant to how he
educates the jury, depending on how she reacts on the stand and how the
family reacts. That all goes toward what we’re going to talk about, about
testifying and how kids present themselves during testimony. I think that’s
all relevant in this case and an area that obviously Dr. Carter is an expert in
and has testified to many times before.

The trial court overruled defense counsel’s objection.

On appeal, Banda argues that the State failed to demonstrate that Dr. Carter’s

presence in the courtroom was essential because any opinion Dr. Carter may have offered

based on his observations from B.R.’s in-trial testimony would be an improper comment

on B.R.’s truthfulness. However, as noted above, the Court of Criminal Appeals has held

that the trial court is vested with discretion and may permit expert witnesses to be
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exempt from the Rule so they may hear other witnesses testify and then base their

opinions on such testimony. See Martinez, 867 S.W.2d at 40; Lewis, 486 S.W.2d at 106; see

also Caron, 162 S.W.3d at 618. Considering this line of cases, we hold that the trial court’s

exemption of Dr. Carter from the Rule does not amount to an abuse of discretion. The

purpose articulated by the State regarding Dr. Carter’s testimony – allowing a psychology

expert to take into account the testimony of B.R. and her family when offering his

opinions – falls within the exemptions provided by the Rule. See TEX. R. EVID. 614; see

also Martinez, 867 S.W.2d at 39-40; Lewis, 486 S.W.2d at 106; Caron, 162 S.W.3d at 618; see

also Gonzales v. State, Nos. 03-13-00333-CR & 03-13-00334-CR, 2015 Tex. App. LEXIS 5869,

at *6 (Tex. App.—Austin June 11, 2015, no pet.) (mem. op., not designated for publication)

("We believe the purpose articulated by the State—providing expert testimony based

upon observations of the children's testimony to explain exhibited behaviors not readily

understood by those not familiar with the dynamics of child sexual abuse—is consistent

with the exception provided for in the Rule.").

Accordingly, we overrule appellant's fourth issue.

Conclusion

Having overruled all of Banda’s issues on appeal, we affirm the judgments of the

trial court.

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STEVE SMITH
Justice

Before Chief Justice Johnson,
Justice Smith, and
Justice Rose1
Affirmed
Opinion delivered and filed January 9, 2025
Do not publish
[CRPM]

1 The Honorable Jeff Rose, Senior Chief Justice (Retired) of the Third Court of Appeals, sitting by
assignment of the Chief Justice of the Texas Supreme Court. See TEX. GOV’T CODE ANN. §§ 74.003, 75.002,
75.003.

Banda v. State Page 11