Flores, Adan ( 2015 )

PD-1414-15
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 11/25/2015 1:38:03 PM
Accepted 11/25/2015 2:00:07 PM
ABEL ACOSTA
CAUSE NO. PD-1414-15 CLERK
IN THE
TEXAS COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
ADAN FLORES,
Appellant,
V.
THE STATE OF TEXAS,
Appellee
APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
ORAL ARGUMENT IS NOT REQUEST
ARMANDO TREVINO
State Bar No. 20211100
1519 Washington St., Suite One
Laredo, Texas 78040
Tel: (956) 726-1638
Email: armandotrevinolaw(a;hotmail.com
November 25, 2015 Attorney for Appellant
IDENTITY OF JUDGE, PARTIES, AND COUNSEL
Honorable Monica Z. Notzon Trial Judge
49th District Court
Webb County Courthouse
Laredo, Texas 78040
Adan Flores Appellant
Armando Trevino Attorney for Appellant
State Bar No. 20211100
1519 Washington St., Suite One
Laredo, Texas 78040
Email: ?JJnando trevinolaw{(l)hotmaiLcom
The State of Texas Appellee
David L. Reuthinger, Jr. Attorney for Appellee
Assistant District Attorney
State Bar No. 24053936
1110 Victoria St., Suite 401
Laredo, Texas 78040
Tel. (956) 523-4900
Fax. (956) 523-5070
Email: dr~utb ing~r@).vyebbcountvtx, gOY
Page I i
TABLE OF CONTENTS
Page
I. Identity of Judge, Parties and Counsel 1
II. Table of Contents 11
III. Index of Authorities IV
IV. Statement Regarding Oral Argument 1
V. Statement of the Case 2
VI. Statement of Procedural History 3
VII. Grounds for Review 4
VIII. Argument 5
Ground No.1. VERONICA V ALDEZ should not have been allowed to
testify as the fresh outcry witness because she conducted the videotape interview in
violation of Articles 38.071 and 38.072 of the Texas Code of Criminal Procedure
and because ANA had previously told others about the assaults.
Grounds No.2. The Trial Court committed reversible error when it
allowed the State to amend the indictment at an ex parte hearing.
Grounds No.3. It was for the jury to decide under the laws in effect when
the assaults occurred whether Appellant committed second-degree felonies or first-
degree felonies and the trial court committed reversible error and invaded the
province of the jury by instructing the jury that Defendant had committed first-
degree felonies as to Counts I, II, III, IV, and V.
Page I ii
Page
IX. Prayer for Relief 8
X. Appendix 9
Page I iii
INDEX OF AUTHORITIES
Page(s)
Cases
Carmel v. Texas, ........ ...... ........... ............. ...................... .... .... 7
529 U.S. 513 (2000)
Holmes v. State, .................................................... .......... ....... 5
323 S.W. 3rd 163 (Tex.Cr.App. 2010)
Martinez v. State, ................................................................... 6
(Tex.Cr.App. 2005)
Nino v. State, ...................................................................... 6
(Tex.App. Houston [14 th Dist.] no pet.)
Ochs v. Martinez, .................................................................. 5
789 S.W.2d 949 (Tex.App.- San Antonio 1990, writ denied)
Sodipo v. State, ................................................................... 6
815 S.W.2d 551 (Tex. Cr. App. 1990)
Vasquez v. State,.................................................................. 7
389 S.W. 3rd 361 (Tex.Cr.App.2012)
Page I iv
CONSTITUTION, STATUTE AND RULES
Page(s)
Texas Constitution, Art. 1, Sec. 16 6
Texas Penal Code
Sec. 22.01(a)(1)(A) 7
Sec. 22.01(a)(1)(B) 7
Texas Rules of Appellate Procedure
Rule 33.1 5
Rule 44.1 5
Rules 66.3(c) and (f) 7
Rule 68 3
Texas Rules of Criminal Procedure
Art. 36.14 7
Art. 36.16 7
Art. 38.071 5
Art. 38.071 Sec. 2(a) 5
Art. 38.072 5
Page I v
STATEMENT REGARDING ORAL ARGUMENT
Appellant waives oral argument unless Appellee requests and is granted oral
argument.
Page 11
STATEMENT OF THE CASE
Appellant ADAN FLORES was convicted by a jury of five counts of
aggravated sexual assault of a child under fourteen years of age and one count of
indecency with a child by contact.
Page 12
STATEMENT OF PROCEDURAL HISTORY
Appellant was convicted of six felony offenses and he appealed the
conviction to the Fourth Court of Appeals. On September 30, 2015, the Court of
Appeals issued a memorandum opinion affirming the conviction (Appendix
Exhibit A). Appellant did not file a motion for rehearing and decided to file a
Petition for Discretionary Review pursuant to Rule 68 of the Texas Rules of
Appellate Procedure.
Page 13
GROUNDS FOR PETITION
Ground No.1. VERONICA V ALDEZ should not have been allowed to
testify as the fresh outcry witness because she conducted the videotape interview in
violation of Articles 38.071 and 38.072 of the Texas Rules of Criminal Procedure
and because ANA had previously told others about the assault.
Ground No.2. The Trial Court committed reversible error when it
allowed the State to amend the indictment at an ex parte hearing.
Grounds No.3. It was for the jury to decide under the laws in effect when
the assaults occurred whether Appellant committed second-degree felonies or first-
degree felonies and the trial court committed reversible error and invaded the
province by instructing the jury that Defendant had committed first-degree felonies
as to Counts I, II, III, IV, and V.
Page 14
ARGUMENT
Ground No.1. VERONICA VALDEZ should not have been allowed to
testify as the fresh outcry witness because she conducted the videotape interview in
violation of Articles 38.071 and 38.072 of the Texas Code of Criminal Procedure
and because ANA had previously told others about the assaults.
Argument and Authorities
VERONICA VALDEZ conducted a videotaped interview of ANA when
ANA was sixteen years old. The State moved to have VALDEZ qualified as the
outcry witness (CR 102-105) and Appellant objected (CR 125-127). The issue was
heard in two phases, one by Judge Jose Lopez (RR Vol 7) and one by Judge
Monica Z. Notzon (RR Vol 15). At the hearing before Judge Notzon, Valdez
admitted she was not neutral at the interview, that her role was to validate the
complaints of ANA, that she had frequently suggested answers to ANA while
questioning her, and that ANA said she had previously told others about the
assaults. Appellant preserved his complaint through his motion for a new trial (CR
250-268). Rules 33.l, 44.1 Texas Rules of Appellate Procedure; Holmes v. State,
323 S.W. 3rd 163, 173-74 (Tex.Cr. App. 2010). The impermissibly suggestive and
biased interview by VALDEZ should not have been allowed. Article 38.071 Sec. 2
(a) Texas Rules of Evidence; Ochs v. Martinez, 789 S.W.2d 949, 951 (Tex.App.-
San Antonio 1990, writ denied). Appellant should be granted the petition because
Page 15
the decision of the Fourth Court of Appeals is in conflict with Martinez v. State,
rd
178 S.W. 3rd 806, 811-13 (Tex.Cr.App. 2005) and Nino v. State, 223 S.W. 3 749,
752-53 (Tex.App. - Houston [14th Dist.] 2007, no pet.)
Ground No 2. The Trial Court committed reversible error when it
allowed the State to amend the indictment at an ex parte hearing.
Argument and Authorities
The State filed a motion to amend the indictment (CR 68-76) and Appellant
filed a response opposing the motion (CR 143-145). An ex parte hearing was held
(RR Vol. 8 pp 6,7) and the Court granted the State's motion without any attempt to
ascertain why Appellant's counsel was not present and without proof that
Appellant's counsel had actually received notice of the hearing. Article 28.1 0 of
the Texas Code of Criminal Procedure allows that State to amend an indictment
but the Defendant must be given time to respond. Failure to allow the time to
respond violates the most fundamental principles of due process of law and is not
subject to harmless error analysis. Texas Constitution Article 1, Section 16; Sodipo
v. State, 815 S.W 2d 551 (Tex.Cr.App.- 1990). The Trial Court was aware that
Appellant had filed an objection to the motion to amend the indictment, made only
a perfunctory inquiry as to the absence of Appellant's counsel, and granted the
State's motion ex parte. Appellant's petition for discretionary review should be
Page 16
granted pursuant to Rules 66.3(c) and 66.3(t) of the Texas Rules of Appellate
Procedure.
Ground No.3. It was for the jury to decide under the laws in effect when
the assaults occurred whether Appellant committed second-degree felonies or first-
degree felonies as to Counts I, II, III, IV, and V.
Argument and Authorities
A Trial Court has the non-delegable duty of preparing a jury charge that is
correct. Articles 36.14, 36.16 Texas Code of Criminal Procedure; Vasquez v. State,
389 S.W. 3rd 361, 366 (Tex.Cr.App. 2012). The State's witnesses were not clear
and definitive as to whether ANA was seven or eight when the assaults occurred
and this lack of a finding is relevant because the Penal Code changed in 2003
regarding the grading of the assaults. The Honorable Court of Criminal Appeals
should grant the petition for discretionary review because (1) the State failed to
prove beyond a reasonable doubt that the offenses were punishable as first degree
felonies and (2) the Trial Court should not have instructed the jury that Counts I, II,
III, IV, and V were first-degree felonies. See Penal Code §§22.01(a)(1)(A)
(penetration of anus or female sexual organ and §22.01(a)(1)(B) (sexual assault by
contact); Carmell v. Texas, 529 U.S. 513, 537 (2000).
Page 17
PRAYER. Premises Considered, Appellant asks the Honorable Texas
Court of Criminal Appeals to grant his petition for discretionary review, to order
the parties to file their respective briefs, and after submission of the case to reverse
the conviction and order Appellant released, or as a lesser alternative, to reverse
the conviction and remand the case for a new trial.
A
Attorney At Law
State Bar No. 20211100
1519 Washington St, Suite # 1.
Laredo, Texas 78040
Telephone No. (956) 726-1638
Email: armandotrevinolaw@hotmai1.com
Attorney For Appellant
CERTIFICATE OF SERVICE
A true copy of the above document was served on the:2 5
.J4- day of
November, 2015, on Keith E. Hottle, Clerk of the Fourth Court of Appeals,
Cadena-Reeves Justice Center, Suite 3200, San Antonio, Texas 78205; Honorable
Monica Z. Notzon, 1110 Victoria St., Laredo, Texas 78040; and on David L.
Reuthinger, Jr., Assistant District Attorney of Webb County, 111 0 Victoria Street,
Suite 401, Laredo, Texas 78040.
ARMANDO TREVINO
Page 18
CERTIFICATE OF COMPLIANCE
Relying on the word count function in the word processing software used to
produce this document, I certify that the number of words in this Petition
(excluding any caption, identity of parties and counsel, statement regarding oral
argument, table of contents, index of authorities, statement of the case, statement
of issues presented, statement of jurisdiction, statement of procedural history,
signature, proof of service, certification, certificate of compliance and appendix) is
1,163.
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ANDO TREVINO
Page 19
CAUSE NO. PD-1414-15
IN THE
TEXAS COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
ADAN FLORES,
Appellant
vs.
THE STATE OF TEXAS,
Appellee
APPELLANT'S APPENDIX
LIST OF EXHIBIT IN THE APPENDIX
EXHIBIT DESCRIPTION
A. September 30, 2015, Fourth Court of Appeals
Memorandum Opinion
EXHIBIT A
jfourto Q1:ourt of ~ppeals
§ban ~ntonio, \!texas
MEMORANDUM OPINION
No.04-14-00915-CR
Adan FLORES,
Appellant
v.
The STATE of Texas,
Appellee
From the 49th Judicial District Court, Webb County, Texas
Trial Court No. 2014CRS000311-Dl
Honorable Monica Z. Notzon, Judge Presiding
Opinion by: Rebeca C. Martinez, Justice
Sitting: Rebeca C. Martinez, Justice
Patricia O. Alvarez, Justice
Luz Elena D. Chapa, Justice
Delivered and Filed: September 30, 2015
AFFIRMED
Adan Flores appeals his convictions on five counts of aggravated sexual assault of a child
under the age of fourteen years old, and one count of indecency with a child by contact. We affirm
the trial court's judgment.
BACKGROUND
Flores entered into a dating relationship with Karla Munoz, the mother of Ana,1 in 2000
and had a daughter with Munoz in 2004. Flores began sexually assaulting Ana when she was
1 "Ana" is a pseudonym. EXHIBIT
A
04-15-00915-CR
seven or eight years old, and the sexual abuse continued through 2004. Flores whipped Ana with
a belt and used the threat of physical discipline to keep Ana from telling anyone about the sexual
abuse. In 2012, when Ana was a junior in high school, she finally made an outcry. Ana testified
that she decided to reveal the sexual abuse at that time because she learned that Flores had started
to similarly abuse her younger sister.
Flores was indicted on five counts of aggravated sexual assault of a child younger than 14
years of age, and one count of indecency with a child by contact. Flores pled not guilty and
proceeded to trial before ajury. At trial, Ana testified in detail about the sexual assaults by Flores.
Other witnesses included Veronica Valdez, a forensic examiner who testified as the outcry witness,
Ana's mother and other relatives, Ana's school counselor, the investigating officers, Dr. Gregorio
Pina, a psychologist who testified that Ana fit the profile of a sexually abused child, and Dr.
Amando Garza, a pediatrician who testified that Ana's hymen was partially tom. The jury found
Flores guilty on all six counts. The court sentenced Flores to fifty-one years' imprisonment on the
five aggravated sexual assault counts, with the sentences to run concurrently, and fifteen years'
imprisonment on the indecency with a child count, with that sentence to run consecutively, for a
total sentence of sixty-six years' imprisonment. Flores timely appealed.
On appeal, Flores raises the following seven issues: (1) Veronica Valdez was not the proper
outcry witness because Ana previously told others she was sexually abused; (2) the court erred in
denying his motion to exclude Valdez's testimony due to her leading questions during the
interview with Ana; (3) the trial court erred in granting the State's motion to amend the indictment
without proper notice to Flores; (4) the evidence is insufficient to support his convictions because
Ana was not credible; (5) the court erred in refusing to include a copy of the video interview in the
record; (6) the court gave an erroneous jury instruction with respect to the dates of the alleged
offenses; and (7) the court erred in its response to a jury question regarding cumulating sentences.
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04-1S-0091S-CR
VERONICA VALDEZ - OUTCRY WITNESS
The three issues (Issue Nos. 1, 2, and 5) regarding the admission of Veronica Valdez's
testimony about her forensic interview with Ana will be discussed together.
Qualification as Outcry Witness. Flores argues that Valdez was not qualified to testify
as the outcry witness under article 38.072 because there was evidence that Ana previously told
several other adults that she had been abused by Flores. See TEX. CODE CRIM. PROC. ANN. art.
38.072 § 2(a)(3) (West Supp. 2014) (providing that the hearsay statement ofa child victim younger
than 14 years of age describing the alleged offense to the first person 18 years of age or older may
be admissible at trial). We review a trial court's ruling on a challenge to an outcry witness for an
abuse of discretion. Garcia v. State, 792 S.W.2d 88, 91 (Tex. Crim. App. 1990); Reed v. State,
974 S.W.2d 838,841 (Tex. App.-San Antonio 1998, pet. ref'd) (court's broad discretion extends
to determining who is the proper outcry witness).
The State replies that Valdez was the proper outcry witness because she was the first adult
that Ana told the details of "when, where, and how" Flores abused her. The outcry witness is the
first adult to whom the child makes more than a "general allusion to abuse," and describes the
details of the alleged offense in "some discernible manner" such as the "how, when, and where"
of the abuse. Reed, 974 S.W.2d at 841-42 (quoting Garcia, 792 S.W.2d at 91); Reyes v. State, 274
S.W.3d 724, 727-28 (Tex. App.-San Antonio 2008, pet. ref' d). The elements of the alleged
offense must be discernible from the child's statement. Shaw v. State, 329 S.W.3d 645,653 (Tex.
App.-Houston [14th Dist.] 2010, pet. ref'd).
Flores filed a pre-trial motion to exclude Valdez's testimony as hearsay, and the trial court
held a hearing on whether Valdez was the proper outcry witness. At a pre-trial hearing before the
Honorable Jose A. Lopez, Ana testified that: (i) when she was 16 or 17 years old, she told her
mother's boyfriend at the time, Arturo, that she "was abused sexually," but she did not tell him
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04-1S-0091S-CR
any details (he was the first person she ever told); (ii) a few days later, she told her high school
counselor, Ms. Ayala, that during the period of time she lived with her mother when she was
younger she was "sexually abused" by Flores, but she did not tell her any details; (iii) she then told
her aunt Jessica Morales that she was "sexually abused," but she did not tell her any details; and
(iv) she told her grandparents that she was physically abus~d by Flores, but she did not tell them
about any sexual abuse. Ana stated that Veronica Valdez (referred to as "Vero Valdez" by Ana)
was the first person she told any details of the sexual abuse, telling her "who abused me," "how
he abused me," "when he abused me," "where the abuse occurred," and "how many times it
occurred." Judge Lopez made a pre-trial ruling that Veronica Valdez was the proper outcry witness
and denied Flores's motion to exclude her testimony as hearsay.
The record supports the trial court's finding that Valdez was the first adult to whom Ana
revealed the "how, when, and where" details of the sexual abuse. See Garcia, 792 S.W.2d at 91;
Reyes, 274 S.W.3d at 727-28. Therefore, the court did not abuse its discretion in ruling that Valdez
was qualified to testify at trial as the outcry witness under article 38.072. TEX. CODE CRIM. PROC.
ANN. art. 38.072, § 2(a)(3).
Admission of Valdez's Testimony. Flores also argues the court erred in denying his
motion to exclude Valdez's testimony because she used leading questions in her interview with
Ana, which Flores claims suggested the desired answers. During trial, Flores filed a motion
requesting that Valdez be disqualified as the outcry witness due to her violation of the article
38.072 procedures regarding the examination of a child victim, essentially asserting Valdez's
testimony did not qualify as reliable. See id. art. 38.072, § 2(b)(2) (West Supp. 2014) (child's
outcry statement is not inadmissible hearsay if adverse party receives notice, trial court finds the
statement to be "reliable based on the time, content, and circumstances" and the child testifies).
The trial court held a hearing outside the jury's presence at which the videotaped interview was
-4-
04-1S-0091S-CR
played and Valdez testified about her interview of Ana and the protocol she followed. She
explained that she initially tried to make Ana feel comfortable and establish a rapport so that Ana
would feel free to discuss the alleged sexual assaults. Valdez testified that she took care not to ask
the child leading questions, but did follow up "1 don't remember" answers with more detailed
questions. Valdez agreed that she asked whether the defendant used particular "body parts,"
asking, for example, whether his "penis was ever inside her vagina?" Valdez stated she asked that
question after Ana had already established what male body parts were used. Valdez also asked
how many times the sexual assaults occurred by asking a "multiple-choice question," such as "was
it more like five times?" At the end of the hearing, the trial court ruled that Valdez's recorded
interview with Ana complied with the applicable statutory requirements and procedures, and held
that Valdez was competent to testify about the details provided by Ana during the interview. 2
A leading question is one that "suggest[s] the desired answer, instruct [s] the witness how
to answer, or put[s] words into the witness's mouth to be echoed back." Tinlin v. State, 983 S.W.2d
65,70 (Tex. App.-Fort Worth 1998, pet. refd) (citing Ballew v. State, 452 S.W.2d 460, 461 (Tex.
Crim. App. 1970)). The fact that a question can be answered with a "yes" or "no" does not make
it a leading question. Tinlin, 983 S.W.2d at 70. Further, a question which merely seeks
clarification of a prior answer does not constitute a leading question. Id. Finally, in the context of
child sexual abuse, leading questions may be used to clarify a child's ambiguous references to
anatomy. See id.; see also Wyatt v. State, 23 S.W.3d 18, 28 (Tex. Crim. App. 2000) (leading
questions on direct examination of a witness may be acceptable at the discretion of the trial court,
such as when the question is necessary to develop a witness's testimony). Flores does not point
out any question asked by Valdez that put words into Ana's mouth or instructed her how to answer.
2 Upon Flores's re-urging of his argument that Valdez was not the "fresh" outcry witness, Judge Notzon agreed with
Judge Lopez and again confirmed that Valdez was the proper outcry witness.
- 5-
04-1S-0091S-CR
We therefore conclude the trial court did not abuse its discretion in overruling Flores's objections
and permitting Valdez to testify about her interview with Ana. See Wyatt, 23 S.W.3d at 28
(requiring a showing that undue prejudice resulted from the purported leading question to amount
to an abuse of discretion); see also Bee v. State, 974 S.W.2d 184, 187, 190 (Tex. App.-San
Antonio 1998, no pet.) (applying abuse of discretion standard).
The Videotaped Interview. Finally, Flores contends that he was entitled to a copy of the
interview recording under Brady,3 and that the trial court erred by refusing to include a copy of the
videotape in the record. The State points out that the videotape is confidential under the applicable
statutes, and that Flores made no attempt to follow the necessary procedures to obtain a copy of
the video.
Section 261.201 (a) ofthe Family Code provides that reports of abuse and the "files, reports,
records, communications, audiotapes, videotapes, and working papers" developed during a child
abuse investigation are confidential. TEX. FAM. CODE ANN. § 261.201(a) (West 2014).
Subsections (b) and (c) state that a court may order disclosure of such confidential information
upon a hearing and determination that disclosure is essential to the administration of justice and
not likely to endanger the child. Id. § 261.201(b), (c) (West 2014). More specifically, article
39.15(a) of the Code of Criminal Procedure provides that the recording of a child victim's oral
statement made before indictment is discoverable only in the manner provided in the statute. TEX.
CODE CRIM. PROC. ANN. art. 39.15(a)(3) (West Supp. 2014). Subsection (b) expressly states that
a child's recorded statement "must remain in the care, custody, or control of the court or the state,"
and subsection (c) states that a "court shall deny any request by a defendant to copy, photograph,
duplicate, or otherwise reproduce" such statement, provided that the state makes the statement
) Brady v. Maryland, 373 U.S. 83 (1963).
-6-
04-15-00915-CR
"reasonably available to the defendant." Id. art. 39.l5(b), (c) (West Supp. 2014). Subsection (d)
defines "reasonably available" as the state providing the defendant with an "ample opportunity for
the inspection, viewing, and examination" of the statement. Id. art. 39 .15(d) (West Supp.20 14).
Flores's counsel concedes, and the record shows, that he received full access to the video
interview and did in fact inspect the video and was able to refer to specific times and statements
on the video during his trial questioning. Flores cites no authority in support of his assertion that
he was entitled to a copy, rather than just reasonable access to, the videotape under Brady, and he
made no effort to gain further disclosure under the Family Code. See Todd v. State, 911 S.W.2d
807,818 (Tex. App.-El Paso 1995, no pet.) (Brady's due process mandate requires only access
to the information, not a copy of the information). In addition, as noted, article 39.15 expressly
prohibits the defendant from obtaining a copy of the child's videotaped statement. TEX. CODE
CRIM. PROC. ANN. art. 39.1S(b), (c). We thus overrule Flores's fifth issue.
STATE'S MOTION TO AMEND INDICTMENT-RIGHT TO NOTICE
In his third issue, Flores complains that the trial court granted the State's motion to amend
the indictment at an "ex parte hearing" without notice to him, thereby violating article 28.10 and
depriving him of due process. See TEX. CODE CRIM. PROC. ANN. art. 28.10(a) (West 2006). Flores
does not assert he lacked notice of the motion to amend the indictment, only that he lacked notice
of the hearing at which the trial court granted the motion to amend. The State replies that article
28.10(a) requires only that a defendant receive notice of the requested amendment, and that the
trial court may grant the amendment without a hearing. In addition, the State asserts that any error
was harmless because the amendments did not substantially change the charged offenses or charge
new offenses.
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04-15-00915-CR
The relevant portions of article 28.10 provide:
(a) After notice to the defendant, a matter of form or substance in an indictment or
information may be amended at any time before the date the trial on the merits
commences. On the request of the defendant, the court shall allow the defendant
not less than 10 days ... to respond to the amended indictment or information.
***
(c) An indictment or information may not be amended over the defendant's
objection as to form or substance if the amended indictment or information charges
the defendant with an additional or different offense or if the substantial rights of
the defendant are prejudiced.
TEX. CODE CRIM. PROC. ANN. art. 28.1 O(a), (c) (West 2006) (emphasis added).
The record reflects that the State's motion to amend the indictment was filed on June 16,
2014, with service by email to defense counsel. A fiat shows the motion to amend was set for a
hearing on Wednesday, June 25, 2014. Flores concedes he received notice of the State's motion
to amend and the June 25 hearing date. On that date, Flores appeared and the court began with the
hearing on the qualification of Valdez as the outcry witness, but did not reach the motion to amend;
the court was in the middle of trial in another case. The hearing on the motion to amend was
pushed to Friday of the same week. Flores asserts he did not receive notice of the re-set hearing
date.
On Friday, June 27, 2014, the State appeared for the hearing on its motion to amend, but
Flores and his attorney did not. A short discussion about the reason for the re-set on the motion to
amend appears at the beginning of the June 27 transcript, and reference is made to a fiat but it is
not clear whether it was the original fiat or a new fiat. 4 The court proceeded with a short hearing
and granted the State's motion to amend the indictment.
4The clerk's record contains a fiat setting a hearing on Flores's motion for continuance for Friday, June 27, 2014, at
9:30am. No written order re-setting the hearing on the State's motion to amend to June 27, 2014 appears in the record.
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04-1S-0091S-CR
The indictment was amended as follows:
Count I (Agg. Sex Assault): the "on or about" date was changed from the "15th
day of June, AD., 2003" to the "10th day of June, AD., 2004;"
Count II (Agg. Sex Assault): the "on or about" date was changed from the "15th
day of September, AD., 2003" to the "20th day of June, A.D., 2004;"
Count III (Agg. Sex Assault): the "on or about" date was changed from the "15th
day of March, AD., 2004" to the "20th day of August, AD., 2004," and the manner
. and means of the sexual assault was changed from "cause the penetration of the
sexual organ of' Ana'" to "cause contact with the sexual organ of' Ana; ,,,
Count IV (Agg. Sex Assault): the "on or about" date was changed from the "15th
day of June, A.D., 2004" to the "5th day of September, AD., 2004," and the manner
and means of the sexual assault was changed from "cause the penetration of the
sexual organ of 'Ana'" to "cause contact with the sexual organ of 'Ana;'"
Count V (Agg. Sex Assault): the "on or about" date was changed from the "15th
day of February, A.D., 2005" to the "10th day of October, A.D., 2004," and the
manner and means of the sexual assault was changed from "cause the penetration
of the sexual organ of' Ana'" to "cause contact with the sexual organ of' Ana;'"
Count VI (Indecency With a Child): the "on or about" date was changed from the
"15th day of July, AD., 2003" to the "10th day of November, A.D., 2004."
On July 21, 2014, Flores filed a motion to quash the amended indictment. However, the
sole ground raised in his motion to quash was that the "[t]he correct charge, if at all, should be for
continuous sexual abuse of a child" under section 21.02, rather than numerous separate counts of
sexual abuse as in the amended indictment. See TEX. PENAL CODE ANN. § 21.02 (West Supp.
2014) (defining the offense of continuous sexual abuse of young child). The court denied the
motion to quash. Flores never raised a trial court objection that he was denied due process because
he did not receive notice of the hearing at which the trial court granted the State's motion to amend
the indictment-the argument he now raises on appeal. A trial objection stating one legal theory
does not preserve the right to raise a different legal theory on appeal. Wilson v. State, 71 S. W.3d
346,349 (Tex. Crim. App. 2002). Because Flores's appellate issue does not comport with his trial
objection, the issue has not been preserved for our review. Id.; TEX. R. ApP. P. 33.1(a).
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04-1S-0091S-CR
SUFFICIENCY OF THE EVIDENCE
In his fourth issue, Flores asserts the evidence is insufficient to support his convictions
because Ana could not testify as to the exact dates and the order in which the sexual assaults
occurred at different places, i.e., he asserts Ana was not credible. In reviewing the legal sufficiency
of the evidence, we determine whether, viewing all the evidence in the light most favorable to the
verdict, any rational trier of fact could have found the essential elements of the offense beyond a
reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Brooks v. State, 323 S.W.3d
893, 899 (Tex. Crim. App.2010). We defer to the jury's assessment of the credibility of the
witnesses and the weight to be given to their testimony, and resolve any inconsistencies in the
evidence in favor of the judgment. Brooks, 323 S.W.3d at 899; Curry v. State, 30 S.W.3d 394,
406 (Tex. Crim. App. 2000).
Flores was charged with five counts of aggravated sexual assault by causing penetration of
(Counts I & II) and contact with (Counts III-V) Ana's female sexual organ by his male sexual
organ under section 22.021, and one count of indecency with a child by sexual contact (Count VI)
under section 21.11. TEX. PENAL CODE ANN. §§ 22.021, 21.11 (West Supp. 2014 & 2011). In a
sexual assault case, the uncorroborated testimony of the child victim alone is sufficient to support
a conviction. TEX. CODE CRIM. PROC. ANN. art. 38.07 (West Supp. 2014); see Saucedo v. State,
No. 04-02-00864-CR, 2003 WL 22298564, at *3 (Tex. App.-San Antonio Oct. 8, 2003, pet.
refd) (mem. op., not designated for publication); see also Hellums v. State, 831 S.W.2d 545,547
(Tex. App.-Austin 1992, no pet.). Here, the jury heard Ana testify about the incidents of sexual
abuse by Flores that began when she was seven or eight years old; she described the places where
she was living and described the sexual abuse that occurred at each place (e.g., Ana stated that
Flores put his penis inside her about two times at the apartment on Laredo Street and it hurt).
Further, Ana's testimony was corroborated by other evidence, including expert testimony. Dr.
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04-15-00915-CR
Pina, a forensic psychologist, testified that her symptoms were consistent with a child who has
been sexually abused. See Chavarria v. State, 307 S.W.3d 386, 392 (Tex. App.-San Antonio
2009, no pet.). In addition, Dr. Garza, a pediatrician, testified that Ana's hymen was partially torn,
which was consistent with penetration of the vagina. It was within the jury's role to choose to
believe Ana's testimony about the sexual assaults and indecency by sexual contact that she said
Flores committed. Brooks, 323 S.W.3d at 899; Curry, 30 S.W.3d at 406. We therefore conclude
the evidence in the record is legally sufficient to support the convictions.
JURY INSTRUCTION AND QUESTION
Flores argues in his sixth issue that the trial court gave an erroneous jury instruction during
the guilt/innocence phase regarding the State's burden of proof as to the dates of the offenses
alleged in the amended indictment. Specifically, Flores complains that the trial court "lowered the
standard prejudicially by changing the time from 'on or about' to 'any time prior to the presentment
of the indictment.'" Flores objected to the instruction during the charge conference.
It is well established that when an indictment alleges that an offense occurred "on or about"
a certain date, as the amended indictment did, the State is allowed to prove that the offense
occurred on a date other than the one stated in the indictment as long as the date is anterior to the
presentment of the indictment and within the statutory limitations period, and the offense relied on
otherwise meets the description of the offense alleged in the indictment. Yzaguirre v. State, 957
S.W.2d 38, 39 (Tex. Crim. App. 1997); Sledge v. State, 953 S.W.2d 253, 256 (Tex. Crim. App.
1977). "The primary purpose of the 'on or about' language 'is not to notify the accused of the date
of the offense[,]' but instead to show the prosecution that the offense is not barred by the statute
oflimitations and to provide the defendant with sufficient notice to prepare an adequate defense."
Sanchez v. State, No. 04-07-00795-CR, 2008 WL 5170199, at *2 (Tex. App.--San Antonio Dec.
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04-1S-0091S-CR
10,2008, no pet.) (mem. op., not designated for publication) (quoting Garcia v. State, 981 S.W.2d
683,686 (Tex. Crim. App. 1998)).
Here, the court's charge tracked the language of the amended indictment in asking the jury
to determine whether Flores committed aggravated sexual assault against Ana when she was
younger than fourteen years of age "on or about" June 10, 2004, June 20, 2004, August 20, 2004,
September 5, 2004, and October 10, 2004. The charge similarly asked the jury to determine
whether Flores caused Ana to engage in sexual contact when she was younger than seventeen years
of age on November 10, 2004. The charge also contained the following instruction:
You are further charged as the law in this case that the State is not required to prove
the exact date alleged in the indictment but may prove the offense, if any, to have
been committed at any time prior to the presentment of the indictment, which was
February 26,2014. The State must show that it returned the indictment before the
victim turned 28 years of age.
The above-quoted instruction was based on the statute of limitations period in effect in 2004, the
year the alleged offenses were committed. See Acts 2001, 77th Leg., ch. 12, § 1, eff. Sept. 1, 2001
(codified as TEX. CODE CRIM. PROC. ANN. art. 12.01(5) (West 2003)) (stating the limitations period
for both aggravated sexual assault and indecency with a child was "ten years from the 18th birthday
of the victim").
The record shows Ana's date of birth is April 23, 1996, which would make her eight years
old on the alleged offense dates, i.e., "younger than 14 years of age" and "younger than 17 years
of age" as required by the two penal statutes, and younger than 28 years old when the indictment
was returned in 2014. Ana testified she did not know the specific dates of the incidents of sexual
abuse, but stated that they all occurred when she was "seven or eight years old," which would be
during 2003 or 2004 - prior to presentment of the indictment in 2014. There was no evidence
that any sexual abuse occurred later than 2004. Thus, Flores's argument that the instruction
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04-15-00915-CR
harmed him by allowing the jury to find him guilty based on conduct that occurred as late as
February 26, 2014 is without merit.
Finally, in his seventh issue, Flores argues the court erred during the punishment phase in
failing to inform the jury that the trial court could stack, or cumulate, two or more of the sentl?nces.
See TEX. CODE CRIM. PROC. ANN. art. 42.08 (West Supp. 2014) (cumulation of sentences when a
defendant is convicted of more than one offense is a matter within the court's discretion). The
jury sent out a note during its punishment deliberations asking, "Is each count served consecutively
or one right after the other?" The court discussed a potential response with the attorneys, and
ultimately replied to the jury, "The court is not permitted to answer your question. Please consider
only the instructions that have been given to you." During the discussion with counsel, however,
the court initially stated that it was considering telling the jury that cumulation of sentences is a
matter for the court to decide. However, Flores's counsel repeatedly objected to that response-
the very response he now argues on appeal should have been given. Defense counsel repeatedly
asked the court to merely reply to the jury's question by stating they should follow the charge,
which is the response the court eventually gave the jury. Therefore, Flores has failed to preserve
this issue for our review. See TEX. R. ApP. P. 33.1(a).
CONCLUSION
Based on the foregoing reasons, we overrule Flores's issues on appeal, and affirm the trial
court's judgment.
Rebeca C. Martinez, Justice
DO NOT PUBLISH
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jfourto QCourt of ~ppea{s
~an ~ntonio, 'aLexas
JUDGMENT
No.04-14-00915-CR
Adan FLORES,
Appellant
v.
The STATE of Texas,
Appellee
From the 49th Judicial District Court, Webb County, Texas
Trial Court No. 2014CRS000311-DI
Honorable Monica Z. Notzon, Judge Presiding
BEFORE JUSTICE MARTINEZ, JUSTICE ALVAREZ, AND JUSTICE CHAPA
In accordance with this court's opinion of this date, the trial court's judgment IS
AFFIRMED.
SIGNED September 30,2015.