Mendiola, Richard v. State

Opinion issued October 23, 2003. In The Court of Appeals For The First District of Texas NO. 01-02-00556-CR RICHARD MENDIOLA, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 23rd District Court Brazoria County, Texas Trial Court Cause No. 40623 M E M O R A N D U M O P I N I O N Appellant was charged with indecency with a child by contact. The indictment contained an enhancement paragraph that alleged a prior felony conviction of aggravated sexual assault of a child. The jury found appellant guilty. Appellant pled true to the enhancement paragraph, and the trial court assessed punishment at life imprisonment. We affirm. In five points of error, appellant claims that (1) the State failed to prove that the offense occurred on or about January 29, 2001, or that the offense occurred in Brazoria County, Texas as alleged in the indictment; (2) the evidence was legally and factually insufficient to support appellant’s conviction; and (3) appellant was denied a fair trial due to prosecutorial misconduct. Date of Offense In his first point of error, appellant contends that the State failed to prove that the offense occurred on or about January 29, 2001, as alleged in the indictment. Appellant contends that none of the witnesses called by the State testified as to the date of the offense as alleged in the indictment, and that the State’s reliance on Article 12.01 of the Texas Code of Criminal Procedure, which allows for presentment of an indictment within ten years from the eighteenth birthday of a victim of the offense of indecency with a child is misplaced. The State argues that appellant failed to preserve error, because, at no point during his trial did he object to the State’s alleged failure to prove the date of the offense. Alternatively, the State argues that it proved the approximate date of the offense, and directs us to testimony in the record substantiating its contention. Waiver On May 23, 2001, appellant was indicted for the offense of indecency with a child by contact. The indictment alleged that appellant committed the offense “on or about the 29TH day of JANUARY, 2001, and before the presentment of this indictment . . .” (emphasis in original). An indictment serves two purposes. First, it provides the defendant with notice of the offense alleged in order to allow him to prepare a defense. Cook v. State, 902 S.W.2d 471, 475 (Tex. Crim. App. 1995); Saathoff v. State, 891 S.W.2d 264, 266 (Tex. Crim. App. 1994). Second, an indictment serves to confer jurisdiction on the trial court. Cook, 902 S.W.2d at 475-76; Labelle v. State, 720 S.W.2d 101, 106 (Tex. Crim. App. 1986). It is well settled that the “on or about” language of an indictment allows the State to prove that the alleged offense took place on a date other than the date alleged in the indictment as long as that date is anterior to the presentment of the indictment and within the statutory limitation period. Sledge v. State, 953 S.W.2d 253, 255-56 (Tex. Crim. App. 1997). See also Thomas v. State, 753 S.W.2d 688, 693 (Tex. Crim. App. 1988) ("[w]here an indictment alleges that some relevant event transpired on or about a particular date, the accused is put on notice to prepare for proof that the event happened at any time within the statutory period of limitations."); Scoggan v. State, 799 S.W.2d 679, 680 n. 3 (Tex. Crim. App. 1990). The State argues that appellant’s claim that the State failed to prove that the offense occurred on or about January 29, 2001 is essentially a claim that the State failed to show that it was not precluded from prosecuting appellant by the statute of limitations. In Proctor v. State, 967 S.W.2d 840, 844 (Tex. Crim. App. 1998), the Court of Criminal Appeals held that a criminal defendant’s ability to use the defense provided by the statute of limitations is forfeited if not raised at or before the guilt/innocence phase of trial. The Fort Worth Court of Appeals held that “because the State does not have the burden of disproving a defense the defendant did not bother to raise, appellant waived any error regarding the State's proof and the statute of limitations.” Johnson v. State, 977 S.W.2d 725, 727 (Tex. App.—Fort Worth 1998, pet. ref’d.) (citing Proctor, 967 S.W.2d at 844-45). We hold that by failing to raise the contention in the trial court that the State failed to prove the offense occurred on or about January 29, 2001, appellant waived any error regarding the State’s proof. We overrule appellant’s first point of error. Venue In his second point of error, appellant contends that the State failed to prove that the offense occurred in Brazoria County, Texas, and therefore, failed to prove venue. Venue need only be proved by a preponderance of the evidence, and may be established by circumstantial evidence as well as direct evidence. Tex. Code Crim. Proc. Ann. art. 13.17 (Vernon 1977) (proof of venue need be by preponderance of the evidence); King v. State, 312 S.W.2d 501, 505 (Tex. Crim. App. 1958) (proof of venue by circumstantial evidence sufficient); Gill v. State, 646 S.W.2d 532, 533 (Tex. App.—Houston [1st Dist.] 1982, no writ) (proof of venue by circumstantial evidence sufficient). Proof of venue is sufficient if the jury may reasonably conclude from the evidence presented that the offense was committed in the county alleged. See King, 312 S.W.2d at 505. At trial, April Garcia testified that she resided for approximately one month at the home of Sylvia Santos. She testified that while residing at Sylvia’s home, she witnessed appellant pinch the complainant on the breast. Diana Garcia testified that Sylvia’s home is located in Brazoria County, Texas. We conclude that the State presented sufficient evidence to allow the jury to reasonably conclude that the offense was committed in Brazoria County, Texas. King, 312 S.W.2d at 505. We overrule appellant’s second point of error. Legal Insufficiency In his third point of error, appellant contends that the evidence was legally insufficient to support his conviction. Specifically, appellant contends as follows: in light of the evidence presented by the State’s witnesses, as stated in issues number one and number two above, The [sic] State failed to produce that quantum evidence [sic] that could reasonably support a finding of guilt beyond a reasonable doubt. Appellant’s third point of error is essentially a restatement of his first two points. Furthermore, his argument simply recites general principles of constitutional law, and fails to conform with Tex. R. App. P. 38.1(h) (brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record). Because appellant’s first two points of error are without merit, and determined them to be without merit, and because appellant’s third point of error fails to conform with Rule 38.1(h), we overrule appellant’s third point of error. Tex. R. App. P. 38.1(h); Modden v. State, 721 S.W.2d 859, 863 (Tex. Crim. App. 1986). Factual Insufficiency In his fourth point of error, appellant contends that the evidence was factually insufficient to support his conviction. Standard of Review In conducting a factual sufficiency review of the elements of a criminal offense, we ask whether a neutral review of all the evidence, both for and against the jury’s finding, demonstrates that the proof of guilt is so obviously weak as to undermine our confidence in the determination, or whether the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). Although we are authorized to disagree with the determination made by the fact finder, we must employ appropriate deference to prevent ourselves from substituting our own judgment for that of the fact finder. Id. Our review should not substantially intrude on the fact finder’s role as the “ sole judge of the weight and credibility of witness testimony.” Jones v. State, 944 S.W.2d 642, 648 (Tex. Crim. App. 1996). The Charged Offense The State alleged that appellant intentionally and knowingly engaged in sexual conduct with the complainant, a child not his spouse and younger than seventeen years of age, by touching her on her breast. Section 21.11 of the Texas Penal Code defines the offense of indecency with a child, and provides in pertinent part: (a) A person commits an offense if, with a child younger than 17 years and not the person’s spouse, whether the child is of the same or opposite sex, the person: (1) engages in sexual contact with the child or causes the child to engage in sexual contact; *** (c) In this section, “sexual contact” means the following acts, if committed with the intent to arouse or gratify the sexual desire of any person: (1) any touching by a person, including touching through clothing, of the anus, breast, or any part of the genitals of a child. Tex. Pen. Code Ann. § 21.11 (Vernon 2003). The Evidence at Trial Diana Garcia, the State’s outcry witness and the complainant’s aunt, testified that the complainant was not appellant’s spouse, and that the home of Sylvia Santos is located in Brazoria County, Texas. She testified that the complainant informed her that appellant had, while lying beside the complainant, taken her hand, and attempted to make her “touch his middle part, but she cried.” On another occasion, appellant instructed the complainant to put his socks on his feet. The complainant informed Diana Garcia that appellant was wearing boxer shorts at the time, and that appellant “had boxers on so he could see - - she could see the - - his penis, you know. And she turned away, and he - - he looked at her and he goes, ‘You know you liked it.’” She also testified that the complainant informed her that appellant “would grab her butt and kiss her.” April Garcia testified that she saw appellant pinch the complainant on her breast. She testified that this incident occurred at the home of Sylvia Santos. Kristan Garcia testified that she witnessed appellant touch the complainant on her breast. The complainant testified that she was ten years old when appellant touched her on her breast, and that she was eleven years old when she testified at trial on May 21, 2002. Her testimony revealed that appellant had a history of touching her in an inappropriate way. On one occasion, while lying beside appellant, he unzipped his pants, grabbed her arm, whispered “don’t tell anybody,” and pulled her hand toward his “private part.” On another occasion, appellant instructed her to put on his socks. She testified that appellant was wearing a t-shirt and boxer shorts at the time, and, when she looked up, she saw appellant’s “private part.” She testified that she felt sick and disgusted, and quickly looked away. Appellant laughed at her reaction, and stated “I know you saw that.” On another occasion, appellant requested that the complainant hug him, and she complied with his request. Appellant initially placed his hands on her back. She testified that “then they had moved down - - he had moved down low and they were on my bottom then. So he just left them there.” Finally, regarding the incident giving rise to appellant’s conviction, the complainant testified that she was walking through a hallway, and appellant pinched her on her breast. She testified that she was wearing a shirt, but was not wearing a bra, and appellant told her to “[g]o put on a bra” and “[y]ou’re going to poke somebody’s eye out with that.” The complainant also testified that appellant repeatedly asked her whether she loved him, and also regularly requested that she hug and kiss him. Cynthia Moore, a clinical psychologist, testified that appellant’s repeated requests for hugs and kisses and questions regarding whether the complainant loved him were consistent with “grooming” the complainant for later sexual contact. According to Moore, the purpose of grooming is to gratify an individual’s sexual desires. Moore testified that the complainant exhibited symptoms consistent with children who have suffered sexual abuse, and that based upon the information gathered during her therapy sessions with the complainant, she concluded that appellant received sexual gratification from his behavior. Appellant contends that the evidence is factually insufficient to prove the incident occurred on or about January 29, 2001, and that the offense occurred in Brazoria County, Texas. Although he did not call any witnesses at trial, he attacks the evidence presented by the State, and identifies evidence elicited on cross-examination of the State’s witnesses in support of his contention. Appellant contends that although April Garcia testified that she witnessed appellant pinch the complainant on her breast, her testimony did not indicate that the incident occurred in Brazoria County, and did not indicate when the incident occurred. Appellant also contends that her testimony is unreliable because she did not immediately report the incident and could not explain why she did not immediately report the incident. Appellant contends that Diana Garcia’s testimony contradicted April Garcia’s testimony. He argues that Diana Garcia testified that the complainant wanted to privately disclose to her that appellant inappropriately touched her, while April Garcia testified that she reported witnessing appellant inappropriately touch the complainant at the same time that the complainant reported the incident to her mother. Appellant also attacks Kristan Garcia’s testimony because she originally testified that she saw appellant touch or grab the complainant on her breast. On cross-examination, however, she testified that she did not immediately report what she saw nor did she “scream right away” when she witnessed the incident because she “didn’t see anything.” Appellant also attacks the complainant’s testimony, because she admitted that she has lied before, that she did not like appellant, and that she would do anything to “get rid” of him. We have reviewed the record in a neutral light, and conclude that the evidence of appellant’s guilt is not so obviously weak as to undermine our confidence in the verdict. See Johnson, 23 S.W.3d at 11. Furthermore, we conclude that the evidence of his guilt is not greatly outweighed by contrary proof. Id. Although the jury was presented with some inconsistent evidence, it was the jury’s exclusive province to resolve those inconsistencies by making credibility determinations of the witnesses, and we will not disturb that determination. Jones, 944 S.W.2d at 648; Obigbo v. State, 6 S.W.3d 299, 305 (Tex. App.—Dallas 1999, no pet.) The evidence is factually sufficient to support the jury’s finding as to each element of the offense for which appellant was convicted and is factually sufficient to support the conclusion that the offense occurred on or about January 29, 2001, in Brazoria County, Texas. We overrule appellant’s fourth point of error. Prosecutorial Misconduct In his fifth point of error, appellant contends he was denied a fair trial because of prosecutorial misconduct. He contends that the complainant acknowledged during cross-examination that “she spoke to the Prosecutor before, and had rehearsed the questions that he was going to ask at trial.” Appellant’s fifth point of error also contains a subsection entitled “Closing Arguments.” He does not, however, complain of any statements made by the prosecutor during closing argument and does not provide a single citation to authority or to the record. In order to preserve a complaint for appellate review, a party must have presented to the trial court a timely request, objection or motion, stating the specific grounds for the ruling the party desired the court to make, and obtain a ruling on the record. Tex. R. App. P. 33.1. We hold that appellant failed to preserve error due to his failure to (1) object in the trial court to any alleged prosecutorial misconduct, (2) cite supporting authority regarding his fifth point of error, and (3) discuss the evidence supporting his contention on appeal. We overrule appellant’s fifth point of error. Conclusion The judgment of the trial court is affirmed. Adele Hedges Justice Panel consists of Justices Hedges, Nuchia, and Higley. Do not publish. Tex. R. App. P. 47.4.