Williams v. State

Full title: REGGIE ORLANDO WILLIAMS, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: Aug 8, 2011

No. 05-10-00002-CR (Tex. App. Aug. 8, 2011)

Opinion

No. 05-10-00002-CR

Opinion Filed August 8, 2011. DO NOT PUBLISH. Tex. R. App. P. 47

On Appeal from the 366th Judicial District Court Collin County, Texas, Trial Court Cause No. 366-81936-09.

Before Justices BRIDGES, LANG-MIERS, and MURPHY.

OPINION

Opinion By Justice LANG-MIERS.

A jury found appellant Reggie Orlando Williams guilty of one count of aggravated sexual assault of a child, two counts of sexual assault of a child, and two counts of indecency with a child. After appellant pleaded true to an enhancement paragraph alleging a prior felony conviction, the jury assessed punishment at 80 years in prison and a $10,000 fine for the count of aggravated sexual assault of a child and one count of sexual assault of a child, and 50 years in prison and a $5,000 fine for one count of sexual assault of a child and each count of indecency with a child. The sentences run concurrently. On appeal appellant argues that the evidence is legally insufficient to sustain his conviction for the two counts of indecency with a child because of a variance between the date alleged in the indictment and the date proven at trial. We affirm.

Background

The Indictment In appellant's indictment the two counts of indecency with a child alleged, in relevant part, that "on or about" September 15, 2005, appellant touched the complainant's genitals with his hand (Count II) and caused the complainant's hand to touch appellant's genitals (Count III).

The Complainant's Testimony

The complainant, J.S., was 15 years old at the time of her testimony in appellant's trial in September 2009. Appellant is J.S.'s "stepdad."¹ J.S. testified about multiple instances of sexual abuse by appellant that started when J.S. was five or six. Pertinent to this appeal, J.S. testified that appellant touched J.S.'s vagina, and forced her to touch his penis, in October 2007:

Q. . . . When-do you remember a time when you were ever wearing a skirt?

A. Yes.

Q. Tell me about that time.

A. That was a couple of days before I was wearing the shorts on [October] 17th or whatever. And I had just got out of the shower, and I didn't want to just walk around the house in anything. So I hurried up and put on a skirt and went in my room, and when I went in my room, he was sitting on my bed.

Q. And what was he doing on your bed?

A. Just sitting there rubbing his penis.

. . .

Q. Okay. On that day, tell me what happened after you walked in and you saw him with his hand on his penis.

A. I had told him I was on my period, and he was like, "Whatever, you're lying." And I was like, "I'm not." And then he put his hands down and could actually see for himself that I was on my period, and then he made me jack him off or whatever.

. . .

Q. Okay. So did-when he put his hands to check-

A. Yes.

Q. -to see if you were on your period, where-where did his hand touch?

A. Just around the hole.

Q. Around the hole?

A. Yes.

Q. Okay. Around the hole of what?

A. My vagina.

Q. Okay. So it is past like the lips?

A. Yes.

Issue on Appeal

Appellant argues that the evidence is legally insufficient to support his convictions for the two counts of indecency with a child (counts II and III) because the evidence at trial showed that the offenses occurred in 2007, not in 2005 as alleged in the indictment. We disagree. In this case the indictment alleged that the indecency-with-a-child offenses occurred "on or about" September 15, 2005. When an indictment alleges that a crime occurred "on or about" a particular date, the State is not bound by the date alleged in the indictment. See Evans v. State, 769 S.W.2d 319, 320-22 (Tex. App.-Dallas 1989, no pet.). Instead, the State may present evidence of the offense being committed at any time "anterior to the presentment of the indictment and within the statutory limitations period." See Sledge v. State, 953 S.W.2d 253, 256 (Tex. Crim. App. 1997). The record demonstrates that the grand jury indicted appellant in 2008 for, among other offenses, committing two offenses of indecency with a child "on or about" September 15, 2005. At trial, J.S. testified that appellant touched her vagina and made her touch his penis a couple of days before October 17, 2007. Pursuant to Texas law, the jury was instructed that, while the indictment alleges that the offenses at issue were committed on our about September 15, 2005, the jury was not bound to find that an offense took place on those dates, as long as the offense occurred prior to the return of the indictment and was not barred by the statute of limitations. See Sledge, 953 S.W.2d at 256. The jury was also instructed that there is no statute of limitations for the offense of indecency with a child. See Tex. Code Crim. Proc. Ann. art. 12.01(1)(E) (West Supp. 2010). Because October 2007 is before the presentment of the indictment and there is no statute of limitations for the offense of indecency with a child, we reject appellant's suggestion that the variance between the date alleged and the date proven rendered the evidence legally insufficient. Having rejected appellant's sole argument regarding the legal sufficiency of the evidence, we resolve appellant's sole issue against him.

Conclusion

We resolve appellant's sole issue against him and affirm the trial court's judgment.