Opinion
No. 05-07-00208-CR
Opinion issued January 25, 2008. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the Criminal District Court No. 7, Dallas County, Texas, Trial Court Cause No. F04-51775-Y.
Before Justices WHITTINGTON, MOSELEY, and BRIDGES.
OPINION
Estevan Espinoza Jr. appeals his conviction for aggravated sexual assault of a child under fourteen years of age. After finding appellant guilty, the jury assessed punishment at life confinement and a $10,000 fine. In two issues, appellant claims the evidence is factually insufficient to support his conviction and that the trial judge erred in admitting certain evidence. We affirm the trial court's judgment. In his first issue, appellant claims the evidence is factually insufficient to support his conviction. Under this issue, appellant contends the evidence is factually insufficient to prove the aggravated sexual assault occurred on the date alleged in the indictment. In a factual sufficiency review, we view all of the evidence in a neutral light and ask whether a jury was rationally justified in finding guilt beyond a reasonable doubt. See Watson v. State, 204 S.W.3d 404, 414-15 (Tex.Crim.App. 2006). To reverse a case on a factual sufficiency challenge, we must be able to say, with some objective basis in the record, that the great weight and preponderance of evidence contradicts the jury's verdict. Watson, 204 S.W.3d at 417. We cannot conclude a conviction is "clearly wrong" or "manifestly unjust" simply because we would have voted to acquit. Watson, 204 S.W.3d at 417. The jury is in the best position to evaluate the credibility of the witnesses, and our factual-sufficiency jurisprudence still requires an appellate court to afford "due deference" to the jury's determinations. Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App. 2006), cert. denied, 127 S.Ct. 87 (2007). Although the reviewing court is permitted "to substitute its judgment for the jury's" when considering credibility and weight determinations, it may do so only "`to a very limited degree.'" Marshall, 210 S.W.3d at 625 (citing Watson, 204 S.W.3d at 415, 417). When indicting a defendant, the State is not required to allege a specific date in the indictment. Sledge v. State, 953 S.W.2d 253, 255 (Tex.Crim.App. 1997). Rather, the "on or about" language of the indictment "allows the State to prove a date other than the one alleged in the indictment so long as the date is anterior to the presentment of the indictment and within the statutory limitations period." Sledge, 953 S.W.2d at 256; Wright v. State, 28 S.W.3d 526, 532 (Tex.Crim.App. 2000) ("It is well settled that the `on or about' language of an indictment allows the state to prove a date other than the one alleged as long as the date proven is anterior to the presentment of the indictment and within the statutory limitation period."); Branson v. State, 825 S.W.2d 162, 167 (Tex.App.-Dallas 1992, no pet.) (same); see Tex. Code Crim. Proc. Ann. art. 21.02(6) (Vernon 1989). In fact, the State may prove the offense was committed before, on, or after the date alleged so long as the date is before the presentment of the indictment and not barred by limitations. Mireles v. State, 901 S.W.2d 458, 459 (Tex.Crim.App. 1995). In this case, the indictment alleged that, on or about July 31, 2003, appellant intentionally and knowingly caused the contact and penetration of the complainant's female sexual organ with his sexual organ. The indictment was presented June 17, 2004. Trial began February 8, 2007. The complainant testified that, at the time of trial, she was fourteen years old and in the ninth grade. The complainant testified appellant sexually assaulted her four or five times. He penetrated her vagina with his penis and forced her to perform oral sex on him. She testified she was twelve years old when she told her mother about the abuse, but her mother did not believe her. In May 2004, she then told a school counselor about the abuse. After she spoke with police officers and told them about the abuse, the complainant was removed from the home and taken to a shelter. The complainant testified that the last time appellant sexually assaulted her was when she was in the sixth grade. Thus, the evidence shows the offense occurred before the complainant told her school counselor in May 2004, a date which is "anterior to the presentment of the indictment and within the statutory limitations period." See Sledge, 953 S.W.2d at 256; see also Wright, 28 S.W.3d at 532; Mireles, 901 S.W.2d at 459. Appellant did not present any evidence, and our review of the record does not reveal any evidence to the contrary of the complainant's testimony. Therefore, we conclude the evidence is factually sufficient to support appellant's conviction. We overrule appellant's first issue. In his second issue, appellant claims the trial judge erred in allowing the testimony of outcry witness Sally Porter because the notice given to appellant was inadequate. Appellant contends the State's notice was inadequate because the State gave notice of four potential outcry witnesses and the statute only provides for one outcry witness to testify. Article 38.072 of the code of criminal procedure applies to outcry statements, i.e., statements made by a child against whom a sexual assault was allegedly committed describing the alleged offense. Tex. Code Crim. Proc. Ann. art. 38.072, § 2(a)(1) (Vernon 2005). Under the statute, an outcry statement is one made "to the first person, 18 years of age or older, other than the defendant, to whom the child made a statement about the offense." Tex. Code Crim. Proc. Ann. art. 38.072, § 2(a)(2) (Vernon 2005). Article 38.072 provides that an outcry statement is not inadmissible because of the hearsay rule if:
(1) on or before the 14th day before the date the proceeding begins, the party intending to offer the statement:
(A) notifies the adverse party of its intention to do so;
(B) provides the adverse party with the name of the witness through whom it intends to offer the statement; and
(C) provides the adverse party with a written summary of the statement;
(2) the trial court finds, in a hearing conducted outside the presence of the jury, that the statement is reliable based on the time, content, and circumstances of the statement; and
(3) the child testifies or is available to testify at the proceeding in court or in any other manner provided by law.Tex. Code Crim. Proc. Ann. art. 38.072, § 2(b) (Vernon 2005). To be a proper outcry statement, the child's statement to the witness "must describe the alleged offense in some discernible manner and must be more than a general allusion to sexual abuse." Sims v. State, 12 S.W.3d 499, 500 (Tex.App.-Dallas 1999, pet. ref'd); see Garcia v. State, 792 S.W.2d 88, 91 (Tex.Crim.App. 1990) (concluding statement must be more than words which give general allusion that something in area of child abuse was occurring). The trial judge has broad discretion in determining which of several witnesses is an outcry witness, and absent an abuse of discretion, we will not disturb the trial judge's decision. Sims, 12 S.W.3d at 500; Chapman v. State, 150 S.W.3d 809, 813 (Tex.App.-Houston [14th Dist.] 2004, pet. ref'd). The "determination of who the `first person' who was given a `statement about the offense' is, may sometimes be a difficult one that demands close scrutiny by the trial judge." Garcia, 792 S.W.2d at 91. In this case, the State provided four separate written notices to appellant about outcry witnesses. Each notice complies with the mandates of article 38.072 by identifying the potential outcry witness, notifying appellant of the State's intent to offer the statement, and providing appellant with a written summary of the statement. See Tex. Code Crim. Proc. Ann. art. 38.072, § 2. To the extent appellant complains the State was not entitled to give notice of four potential outcry witnesses, we note that, although the statute provides that only one outcry witness may testify, it does not limit the number of witnesses that can be noticed. See Tex. Code Crim. Proc. Ann. art. 38.072, § 2. Nothing in the statute prohibits the State from calling more than one potential outcry witness for the hearing to determine which statement meets the article 38.072 requirements. See Tex. Code Crim. Proc. Ann. art. 38.072, § 2(b)(2) (discussing that statement is admissible if "the trial court finds, in a hearing conducted outside the presence of the jury, that the statement is reliable based on the time, content, and circumstances of the statement."). Furthermore, that the trial judge has to determine the proper outcry witness necessarily implies a defendant may receive notice of more than one potential outcry witness. Cf. Garcia, 792 S.W.2d at 91. Because nothing prohibits the State from giving several notices of potential outcry witnesses, we cannot conclude the trial judge abused his discretion. We overrule appellant's second issue. We affirm the trial court's judgment.
At trial, appellant also objected that the State did not give adequate notice with respect to the fourteen-day notice requirement. On appeal, he does not raise this issue on appeal.