Opinion
No. 4-05-00231-CR
Delivered and Filed: March 8, 2006. DO NOT PUBLISH.
Appeal from the 175th Judicial District Court, Bexar County, Texas, Trial Court No. 2003-CR-1113, Honorable Mary Román, Judge Presiding. Affirmed.
Sitting: Sarah B. DUNCAN, Justice, Karen ANGELINI, Justice, Sandee Bryan MARION, Justice.
MEMORANDUM OPINION
Steven Ray Chounard appeals the trial court's judgment convicting him of two counts of aggravated sexual assault of a child, A.B., and sentencing him to sixty-years in prison. We affirm the trial court's judgment. 1. Chounard first argues the evidence is legally insufficient to support one of his convictions because there is no evidence that he committed the offense on April 17, 1998, the date alleged in the indictment. However, the February 18, 2003 indictment in fact alleges that Chounard committed the offense of aggravated sexual assault "on or about the 17TH day of APRIL, A.D., 1998"; and "[i]t is well settled that the `on or about' language of an indictment allows the State to prove a date other than the one alleged in the indictment as long as the date is anterior to the presentment of the indictment and within the statutory limitation period." Sledge v. State, 953 S.W.2d 253, 256 (Tex.Crim.App. 1997). These requirements are met here. According to A.B., who was fourteen years old when she testified, Chounard sexually assaulted her on countless occasions in 1996 and 1997, when A.B. was between five and seven years old. The statute of limitations on aggravated sexual assault of a child is ten years from the child's eighteenth birthday. Tex. Code Crim. Proc. Ann. art. 12.01(5) (Vernon Supp. 2005). The State thus proved the offense occurred before the indictment was presented and within the limitations period. No more is required. 2. Chounard next argues "he was held to answer for over twenty speculated offenses of aggravated sexual assault of [A.B.] without an indictment in violation" of the Fifth Amendment's guarantee that "[n]o person shall be held to answer for a [felony] unless on . . . indictment of a Grand Jury." However, not only is the Fifth Amendment's grand jury indictment clause inapplicable in state court proceedings, see Branzburg v. Hayes, 408 U.S. 665, 688 n. 25, 92 S. Ct. 2646, 2660 n. 25, 33 L. Ed.2d 626 (1972) (citing Hurtado v. California, 110 U.S. 516, 4 S. Ct. 111, 28 L. Ed. 232 (1884)), but Chounard was only held to answer for the two sexual assaults of A.B. for which he was indicted. 3. Finally, Chounard argues that he was denied "the structure of a fair trial" by the prosecutor's "extreme and manifestly improper remarks" about the numerous unindicted sexual assaults to which A.B. testified. However, improper jury argument, even if "incurable," is not fundamental error that may be raised for the first time on appeal. See Threadgill v. State, 146 S.W.3d 654, 667 (Tex.Crim.App. 2004); Cockrell v. State, 933 S.W.2d 73, 89 (Tex.Crim.App. 1996), cert. denied, 520 U.S. 1173 (1997). And, as Chounard acknowledges, he did not object to the prosecutor's remarks at trial. The complaint is therefore waived. See id. The trial court's judgment is affirmed.