Opinion
No. 11-06-00016-CR
Opinion filed June 14, 2007. DO NOT PUBLISH. See TEX. R. APP. P. 47.2(b).
On Appeal from the 385th District Court, Midland County, Texas, Trial Court Cause No. CR30822.
Panel consists of: WRIGHT, C.J., McCALL, J., and STRANGE, J.
OPINION
The jury convicted Guadalupe M. Rodriguez of the offense of indecency with a child by contact. See TEX. PENAL CODE ANN. § 21.11 (Vernon 2003). The jury assessed appellant's punishment at twenty years confinement and a fine of $10,000. We affirm.
The Charged Offense
Section 21.11(a)(1) of the Penal Code provides that a person commits the offense of indecency with a child by engaging in sexual contact with a child. Section 21.11(c)(1) defines "sexual contact" as any touching, including touching through clothing, by a person of the anus, breast, or any part of the genitals of a child with the intent to arouse or gratify the sexual desire of any person. In this cause, the indictment alleged that, on or about May 1, 2005, appellant engaged in sexual contact with S.J., a child younger than seventeen years of age and not appellant's spouse, by touching a part of her genitals and breasts with the intent to arouse and gratify appellant's sexual desire. S.J. was eleven years old at the time of the conduct charged in the indictment.Issues on Appeal
Appellant presents three points of error for review. In his first point, appellant contends that the trial court erred in overruling his motion for new trial that challenged the sufficiency of the evidence to support his conviction. In his second point, appellant asserts that the trial court erred during the punishment phase by admitting evidence that appellant had previously committed acts of indecency with minors. In his third point, appellant contends that the trial court erred in failing to include a reasonable-doubt instruction for unadjudicated extraneous offenses or bad acts during the punishment phase.Sufficiency of the Evidence
Appellant does not challenge the legal sufficiency of the evidence. To determine if the evidence is factually sufficient, the appellate court reviews all of the evidence in a neutral light. Watson v. State, 204 S.W.3d 404, 414 (Tex.Crim.App. 2006) (overruling in part Zuniga v. State, 144 S.W.3d 477 (Tex.Crim.App. 2004)); Johnson v. State, 23 S.W.3d 1, 10-11 (Tex.Crim.App. 2000); Cain v. State, 958 S.W.2d 404, 407-08 (Tex.Crim.App. 1997); Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). Then, the reviewing court determines whether the evidence supporting the verdict is so weak that the verdict is clearly wrong and manifestly unjust or whether the verdict is against the great weight and preponderance of the conflicting evidence. Watson, 204 S.W.3d at 414-15; Johnson, 23 S.W.3d at 10-11. The jury, as the trier of fact, is the sole judge of the credibility of the witnesses and of the weight to be given to their testimony. TEX. CODE CRIM. PROC. ANN. art 36.13 (Vernon 2007), art. 38.04 (Vernon 1979). The jury may accept one version of the facts and reject another. Penagraph v. State, 623 S.W.2d 341, 343 (Tex.Crim.App. 1981). The evidence established that S.J. was spending the night at Hollie Lynn Anderson's house on the date of the alleged incident. S.J. was eleven years old at that time. Anderson was S.J.'s older cousin. Appellant was Anderson's former boyfriend. Appellant and Anderson broke up about a week before the alleged incident. Until they broke up, appellant lived with Anderson at her house. Appellant and Anderson both testified that, during the week following the breakup, appellant visited Anderson at her house and that they engaged in sexual relations with each other. S.J., Anderson, and appellant all testified that they were at Anderson's house on the date of the alleged incident. S.J. testified that she did not bring any nightclothes to sleep in at Anderson's house. S.J. borrowed a nightgown and a robe from Anderson. S.J. said that, after she changed into the nightgown and the robe, she sat on Anderson's couch with appellant. At the same time, Anderson was in her bedroom. S.J. and appellant were looking through a dictionary. S.J. testified that appellant was sitting right beside her on her right side and that he had his arm around her shoulders. She also testified that appellant started moving his hand toward her breasts and then put his hand up above her breast. S.J. said that appellant moved his hand from her robe to her nightgown and then under her nightgown. S.J. also said that appellant had his hand on her and that she was shocked. She further testified that appellant started going down to her below area with his other hand. She said that appellant put his hand inside her underwear and touched her private part with his hand. S.J. was shocked and frightened. She testified that she had no doubt appellant touched her on her breasts and private area. S.J. testified that Anderson came out of her bedroom and asked whether appellant had turned off the bedroom fan. S.J. said that, when Anderson opened the bedroom door, appellant quickly pulled his hand away from her. She also said that she went into the bathroom, hid in the bathtub behind the shower curtain, curled up, and started to cry. S.J. testified she told Anderson that appellant had touched her and where he had touched her. Anderson testified that the incident occurred after 10:00 p.m. She said that S.J. borrowed a gown from her and that S.J. was wearing underwear. Anderson was washing dishes in the kitchen, and appellant and S.J. were sitting close to each other on the couch. Anderson said that appellant and S.J. were reading a dictionary. Anderson testified that, after she finished the dishes, she went into her bedroom to change clothes. She said that her bedroom door got stuck when she closed it and that she yanked the door to open it before she changed clothes. When she opened the door, she saw what looked like appellant's hand coming out of the top of S.J.'s gown. Anderson was shocked and knew that "something was bad [with S.J.]." Anderson testified that S.J. ran into the bathroom, shut the door, and started crying. Anderson told appellant that he needed to leave. She said that appellant went outside to the front porch and that she locked the door. Anderson then went into the bathroom and found S.J. in a fetal position in the bathtub. S.J. told Anderson that appellant had touched her. Anderson testified that she approached appellant, told him to leave, and told him that she was going to call the police. Anderson further testified that she and S.J. went to a friend's house. Anderson and S.J. were both crying and scared because they were afraid of appellant. The friend told them to go to the police. According to Anderson, S.J. told her that appellant had touched her boob and that he had touched her in her panties. Anderson testified that she was totally disoriented, drove right past the police station, and ended up at a Church's Chicken. Anderson said that Midland Police Detective Nancy Hollingsworth arrived at the Church's Chicken. During cross-examination, Anderson testified that she had been angry with appellant when they were breaking up and that she might have told appellant that she was going to ruin his reputation. Anderson said that appellant showed up at her house at about 6:00 p.m. on the day of the incident. She testified that she did not remember appellant telling her that he had hurt his hand at work that day or anything about appellant having a swollen or sore hand. Anderson also said that she did not ask appellant whether he was going to spend the night. Anderson admitted that she and appellant smoked a marihuana joint that evening. Appellant testified that he broke up with Anderson on April 22, 2005. He said that Anderson became violent and threatened to ruin his reputation among all of his friends. Appellant testified that Anderson wanted him to install a door and a screen door at her house on the date of the alleged incident but that he injured his right hand at work on that date. He said that he called Anderson and told her that he had hurt his hand. According to appellant, Anderson asked him to come over and show her his hand. He also said that Anderson started crying and yelling that she wanted to see him. Appellant testified that he went to Anderson's house and sat down in the backyard. Appellant said that he arrived at Anderson's house at about 6:15 p.m. or 6:30 p.m. He said that he and Anderson smoked a joint together. Appellant testified that Anderson asked him whether he was going to spend the night and that he told her he was never going to spend the night with her again. Appellant testified that he worked on installing the doors. Appellant testified that S.J. was present at Anderson's house and that he had seen S.J. on two prior occasions. Appellant also testified that, after working on the doors, he sat by S.J. on a love seat. Appellant said that S.J. was sitting to his left and that they were reading in a dictionary. He said that Anderson was sitting on the couch and then got up to make him some coffee. Appellant said that he motioned to Anderson to make another joint and that she went into the bedroom and closed the door so that she could roll a joint. Appellant testified that Anderson opened the door and yelled at him while asking why he had turned off the air conditioner. Appellant said that he got up and turned the air conditioner back on. He said that S.J. got up and casually walked to the bathroom and that Anderson told him he needed to leave. Appellant testified that, before he left, Anderson told him S.J. had stated that he had touched her. Appellant said that he called Anderson stupid, walked off, and went straight home. Appellant further testified that he did not touch S.J. and that the alleged incident did not take place. Appellant said that he could not have touched S.J. with his right hand because of the injury to his right hand. He said that he did not use his right hand when he worked on the doors. Rather, appellant said that he used his left hand and right forearm to work on them. Appellant further testified that Anderson had previously threatened his son with a similar allegation. According to appellant, Anderson told his son not to be touching S.J. Detective Hollingsworth investigated the incident. She testified that she met Anderson and S.J. at Church's Chicken. She determined that Anderson and S.J were cousins. Anderson and S.J. followed her to the police department. Detective Hollingsworth said that she obtained details about what had happened from Anderson and that an interviewer with the Child Advocacy Center interviewed S.J. Detective Hollingsworth testified that she continued the investigation and then obtained an arrest warrant for appellant. She said that officers later arrested appellant. Applying the above standard of review, the evidence was factually sufficient to support appellant's conviction for indecency with a child. S.J. testified that appellant touched her breasts with his hand and that appellant put his hand inside her underwear and touched her private part. The testimony of a child victim alone is sufficient to support a conviction for indecency with a child. TEX. CODE CRIM. PROC. ANN. art. 38.07 (Vernon 2005); Emenhiser v. State, 196 S.W.3d 915, 930-31 (Tex.App.-Fort Worth 2006, pet. ref'd); Perez v. State, 113 S.W.3d 819, 838 (Tex.App.-Austin 2003, pet. ref'd). Additionally, Anderson, the outcry witness, testified that S.J. told her appellant had touched her boob and that he had touched her in her panties. Appellant contends that "Anderson's testimony simply does not add up" and that Anderson made up the allegations as a way to pay him back for ending their relationship. He also contends that S.J.'s testimony tracked Anderson's testimony "in areas that suggest fabrication." However, the jury, as the sole judge of the credibility of the witnesses and of the weight to be given to their testimony, was entitled to accept S.J.'s and Anderson's testimony and to reject appellant's testimony. Articles 36.13, 38.04; Penagraph, 623 S.W.2d at 343. We overrule appellant's first point of error.Extraneous Offense Evidence During Punishment Phase
In his second point, appellant argues that the trial court erred in admitting evidence of prior extraneous acts of indecency with minors. Specifically, appellant contends that the trial court erred in allowing A.R.A., A.A., and E.R. to testify. A.R.A. testified that she was twenty-four years old and that appellant was her uncle. She said that, at some point when she was between the ages of seven and eleven and probably around nine or ten years old, she was spending the night at her grandmother's house. She also said that appellant got into bed with her, put his hand up her shirt, and touched her breasts. A.R.A. testified that she was not wearing a bra at the time. She said that appellant told her it was okay because he was her uncle. A.A. testified that she was twenty-three years old and that appellant was her uncle. She testified about an incident that occurred when she was eleven years old. She said that she and appellant were sitting on a couch at her grandmother's house. She also said that appellant had his arm around her shoulders. A.A. testified that appellant touched her on her breast over her clothing. She also testified that appellant put his hand up her shirt until his hand was up to the bra line where the cup begins. She said that, at that point, her grandmother called appellant and "that's when it ended." E.R. testified that she was twenty-three years old and that appellant was her cousin. She said that, when she was eight or nine years old, appellant touched her under her shirt and had sex with her. She said that appellant had sex with her numerous times until she was sixteen or seventeen years old. E.R. said that she became pregnant as a result of her sexual relations with appellant. She also said that the baby was stillborn. On cross-examination, E.R. testified that she and Anderson were friends. E.R. said that, before Anderson started dating appellant, she told Anderson that appellant was not a good person and that he had raped her. Appellant called Anderson as a witness during the punishment phase. Anderson testified that E.R. did not approve of her dating appellant and that E.R. told her that appellant was a bad person. However, Anderson also testified that E.R. did not tell her about being raped by appellant. Appellant argues that the above extraneous offenses or bad acts evidence was inadmissible for the following reasons: (1) the evidence was not relevant under TEX. R. EVID. 401; (2) even if the evidence was relevant, the unfair prejudice of the evidence substantially outweighed its probative value under TEX. R. EVID. 403; and (3) the State's notice of intent to offer the evidence failed to provide adequate notice of the dates of the alleged incidents. We review a trial court's decision to admit extraneous offense evidence during the punishment phase of a trial under an abuse of discretion standard. Mitchell v. State, 931 S.W.2d 950, 953 (Tex.Crim.App. 1996). TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3(a)(1) (Vernon 2006) provides in relevant part that, during the punishment phase, the State may offer evidence:[A]s to any matter the court deems relevant to sentencing, including but not limited to the prior criminal record of the defendant, his general reputation, his character, an opinion regarding his character, the circumstances of the offense for which he is being tried, and, notwithstanding Rules 404 and 405, Texas Rules of Evidence, any other evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt by evidence to have been committed by the defendant or for which he could be held criminally responsible, regardless of whether he has previously been charged with or finally convicted of the crime or act.The admissibility of evidence at the punishment phase of a noncapital felony offense is a function of policy rather than relevancy. See Rogers v. State, 991 S.W.2d 263, 265 (Tex.Crim.App. 1999); Miller-El v. State, 782 S.W.2d 892, 895 (Tex.Crim.App. 1990). Accordingly, the Texas Court of Criminal Appeals has observed that, in assessing what is relevant to sentencing, the important question is "what is helpful to the jury in determining the appropriate sentence for a particular defendant in a particular case." Rogers, 991 S.W.2d at 265. The language of Article 37.07, section 3(a)(1) establishes that the conduct described by A.R.A., A.A., and E.R. was relevant to the assessment of appellant's punishment. Punishment phase evidence that the trial court deems relevant is still subject to a Rule 403 analysis. See Rogers, 991 S.W.2d at 266-67. Under Rule 403, even relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, considerations of undue delay, or needless presentation of cumulative evidence. Relevant evidence is only inadmissible under Rule 403 to the extent its degree of unfair prejudice substantially outweighs the probative value of the evidence. Rogers, 991 S.W.2d at 266. "Unfair prejudice" refers to "an undue tendency to suggest [a] decision on an improper basis." Id. A.R.A., A.A., and E.R. described conduct on the part of appellant that was similar to appellant's conduct in this cause. A.R.A. and A.A. testified that appellant touched their breasts when they were children. E.R. testified that appellant had sex with her when she was a child. Thus, the extraneous offenses or bad acts involved indecency with children and sexual assault of a child. Given the similarity of conduct involved in the charged offense in this cause and in the extraneous offenses or bad acts, we find that the trial court did not abuse its discretion in concluding that the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice. See Fowler v. State, 126 S.W.3d 307, 310-11 (Tex.App. — Beaumont 2004, no pet.) (holding that the trial court did not abuse its discretion in admitting evidence of extraneous offenses of sexual assault of a minor during the punishment phase). Appellant also contends that the State's notice provided inadequate notice of the dates of the alleged incidents. TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3(g) (Vernon 2006) provides in relevant part:
On timely request of the defendant, notice of intent to introduce evidence under this article shall be given in the same manner required by Rule 404(b), Texas Rules of Evidence. If the attorney representing the state intends to introduce an extraneous crime or bad act that has not resulted in a final conviction in a court of record or a probated or suspended sentence, notice of that intent is reasonable only if the notice includes the date on which and the county in which the alleged crime or bad act occurred and the name of the alleged victim of the crime or bad act.The purpose of Article 37.07, section 3(g) is to avoid unfair surprise and trial by ambush. Nance v. State, 946 S.W.2d 490, 493 (Tex.App. — Fort Worth 1997, pet. ref'd). In this cause, the State filed a notice and an amended notice of its intent to offer evidence of extraneous crimes, acts, and wrongs committed by appellant. The State identified the extraneous offenses or bad acts involving A.R.A., A.A., and E.R. in the amended notice. The amended notice provided that the State intended to offer evidence: (1) that appellant sexually assaulted E.R. in Midland County, Texas, on or about January 1, 1991; (2) that appellant sexually assaulted A.R.A. in Midland County, Texas, on or about January 1, 1991; and (3) that appellant sexually assaulted A.A. in Midland County, Texas, on about January 1, 1993. A.R.A. was twenty-four years old at the time of trial. She would have been nine or ten years old on January 1, 1991. She testified that the incident occurred when she was probably around nine or ten years old. A.A. was twenty-three years old at the time of trial. She would have been ten or eleven years old on January 1, 1993. She testified that the incident occurred when she was eleven years old. E.R. was twenty-three years old at the time of trial. She would have been eight or nine years old on January 1, 1991. She testified that the first incident occurred when she was eight or nine years old. Thus, the evidence was consistent with the dates set forth in the State's amended notice. When an extraneous offense involves a crime against a child, the State is not required to provide the defendant with notice of the exact date of the alleged offense. Nelson v. State, 126 S.W.3d 700, 704 (Tex.App. — Amarillo 2004, pet ref'd); Hohn v. State, 951 S.W.2d 535, 537 (Tex.App.-Beaumont 1997, no pet.). Often, child victims are unable to remember or establish the specific date of an offense. Therefore, with respect to extraneous offenses involving child victims, the requirement obligating the State to provide notice of the date of the offense is relaxed. Nelson, 126 S.W.3d at 704; Hohn, 951 S.W.2d at 537; Sledge v. State, 903 S.W.2d 105, 107 (Tex.App.-Fort Worth 1995), aff'd, 953 S.W.2d 253 (Tex. Crim App. 1997). The extraneous offense or bad acts evidence in this cause involved acts against children. The State's amended notice provided approximate dates of the offenses or acts. The testimony at trial was consistent with the approximate dates in the notice. Thus, the record does not demonstrate that appellant was unfairly surprised by the testimony as to when he committed the offenses or acts. We hold that the notice complied with the date requirement set forth in Article 37.07, section 3(g) and provided reasonable notice to appellant of the date of the alleged offenses or acts. Nelson, 126 S.W.3d at 704; Hohn, 951 S.W.2d at 537. In its original notice of extraneous matters, the State notified appellant that it intended to offer evidence of a number of prior convictions. The State's amended notice identified the extraneous offenses or bad acts involving A.R.A., A.A., and E.R. The amended notice did not refer to the convictions set forth in the original notice. Appellant asserts that the State's amended notice superceded and replaced the original notice and that, therefore, the trial court erred in permitting the State to introduce evidence of the convictions identified in the original notice. Appellant contends that an amended notice in a criminal proceeding should have the same effect that an amended pleading has in a civil proceeding. In civil cases, an amended pleading supercedes and supplants earlier pleadings. TEX. R. CIV. P. 65; see also Lee v. Na, 198 S.W.3d 492, 494 (Tex.App.-Dallas 2006, no pet.). Rule 65 applies in civil proceedings; there is no corresponding rule that applies in criminal proceedings to notices under Article 37.07, section 3(g). Therefore, the State's amended notice did not supercede the original notice. The State complied with the notice requirement in Article 37.07, section 3(g) by providing appellant notice of the convictions in the original notice. The trial court did not abuse its discretion in admitting evidence of the prior convictions. We overrule appellant's second point of error.