Roberto Martin Lourenco v. State ( 2015 )

Affirmed as Modified; Opinion Filed January 28, 2015.
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-13-01092-CR
No. 05-13-01114-CR
ROBERTO MARTIN LOURENCO, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 6
Dallas County, Texas
Trial Court Cause Nos. F12-54932-X and F12-54842-X
OPINION
Before Justices Bridges, Lang-Miers, and Myers
Opinion by Justice Myers
A jury convicted appellant Roberto Martin Lourenco of continuous sexual abuse of a
child under the age of fourteen and aggravated sexual assault of a child under the age of fourteen,
and imposed punishment of concurrent terms of 75 years in prison. In his appeal from the
conviction for continuous sexual abuse of a child, cause number 05–13–01114–CR, appellant
alleges an expert witness impermissibly conveyed to the jury that the complainant was telling the
truth. In the aggravated sexual assault of a child appeal, cause 05–13–01092–CR, appellant
contends (1) the trial court erred by failing to define serious bodily injury in the jury charge; (2)
the trial court improperly instructed the jury and thereby violated appellant’s right to a
unanimous jury verdict; (3) the evidence was insufficient to prove, as alleged in the indictment,
that appellant placed the complainant in fear that death, serious bodily injury, and kidnapping
would be imminently inflicted on her; and (4) an expert witness impermissibly conveyed to the
jury that the complainant was telling the truth. As modified, we affirm the trial court’s
judgments.
BACKGROUND
M, the complainant in 05–13–01114–CR, seventeen years old at the time of trial, was
born in Angola, Africa on December 10, 1995. In 2004, she and her sister R moved to the
United States to live with their biological father, appellant, appellant’s girlfriend, Cherie, and
Cherie’s son. About a year after she moved to the U.S., however, appellant began doing things
to M that made her feel uncomfortable. One of the first incidents M could recall occurred when
appellant called M and her sister R into his bedroom. He told them to go to his bathroom and put
soap and water on their hands, and then to “start touching” his penis. M recalled that most of the
time she “just touched his balls,” but sometimes appellant would have her masturbate him by
moving her hand up and down his penis. M testified that this abuse, which started when she was
about eight or nine years old, “happened many times,” perhaps two or three times a week, and
continued until she was about thirteen or fourteen years of age. When M was around ten years of
age, appellant started having sexual intercourse with her, and this continued approximately once
or twice a week until M was fourteen years of age. M told the jury that when she and the other
children got into trouble, appellant would sometimes hit them with a belt or kick them. M also
testified that appellant once hit her with a wooden stick, and that he sometimes slapped her on
the side of her head.
When M was sixteen years old, she told her boyfriend, Jason Ukandu, via text message
that appellant raped her when she was young, and that she was worried this was happening to her
younger sister, E. M told her boyfriend she had seen bruises and a “hickey” on E. Ukandu, who
recalled that this conversation occurred in approximately April of 2012, testified that on the
following morning he notified the school’s resource officer, Officer Tanya Evans of the
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Richardson Police Department. Evans contacted her sergeant and an investigator for assistance.
After M returned from school later that day, Dallas patrol officers went to her home to talk to
her. M and her sister were taken to the Dallas Children’s Advocacy Center (DCAC), and M was
interviewed there on April 19, 2012 by Kaitlyn Clevenger––at that time a forensic interviewer at
the DCAC.
Clevenger testified that M described multiple instances of sexual abuse and identified
appellant, her father, as the perpetrator. One incident that occurred when M was fourteen years
of age involved appellant telling M to take off her clothes and get into bed. Appellant got behind
her and put his penis in her vagina. He stopped when M told him he was hurting her. M
described another incident that took place when she was in the sixth grade and thirteen years of
age. Appellant came into her room and asked her to take off her clothes, and he said that he “just
wanted to look at her vagina.” After M complied, appellant told her to get on her stomach. He
got behind her and put his penis into her “butt.” M told appellant that this was hurting her.
Appellant continued the penetration “for a little while longer,” after which he stopped, rolled M
over onto her back, got on top of her, and put his penis in her vagina. M also told Clevenger
about the “multiple times that her father would make her masturbate him.” M said that she
would know she was supposed to go into appellant’s room and masturbate him because he would
whistle at her or call her name, and that he would leave the water running in the sink for her to
put soap on her hands before masturbating him. Yet another incident occurred when appellant
was laying on the bed. He asked M to touch the head of his penis and squeeze it with her hands,
and at some point he got up from the bed, went over to the side of the bed, and “hump[ed] the
side of the bed until the sperm went on the sheets and the comforters.” When Clevenger asked
M how many times appellant put his penis in her vagina, M said “it was too many to count.” M
also said that appellant “put his penis inside her butt about two or three different times.”
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Kathy Dumond, a clinical supervisor and therapist at the DCAC, testified that once a
child makes an outcry of abuse at the DCAC, the child is referred to therapy. Dumond told the
jury that she first treated M during a May 2012 “crisis session,” which was based on concerns M
had suicidal or self-harming thoughts. Group therapy with another therapist at the DCAC
followed, and beginning in September, 2012, Dumond began treating M in individual therapy
sessions. Dumond had about thirty sessions with M by the time of trial, and was still seeing M
regularly. 1
M’s younger sister, E, the complainant in 05–13–01092–CR, thirteen years old at the
time of trial, testified that she was born in Angola on December 2, 1999. She moved to the
United States to live with appellant in 2011. E recalled an incident where appellant asked her to
bring his phone into his bedroom, and after she entered the room appellant locked the door, and
he started “doing bad stuff” to E by touching her “boobs” and her “booty.” During her
testimony, the prosecutor showed E an anatomical drawing of a small, male child and asked her
to circle the part of the body appellant used to touch her. She circled the male child’s genital
area, and identified that part of the body as “[p]rivate.” She was then asked to circle on a
drawing of a small, female child the parts of her body that appellant touched. E circled the
breasts, genital, and anal areas. After the drawings, State’s exhibits 8 and 9, were admitted into
evidence without objection, the prosecutor asked, “Now [E], you told us that the Defendant used
his private part to touch your private part; is that right.” E replied, “Yes, ma’am. E testified that
this type of behavior happened more than once––perhaps two or three times.
The first instance of sexual abuse E could remember occurred when she was in the living
room with her sisters. Appellant called for her. He asked, “Can I touch your private part?” E
recalled that she “was really scared and didn’t want to say like nothing, no or nothing,” so she
1
Dumond’s testimony is the basis for appellant’s sole issue in cause 05-13-01114-CR.
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told appellant, “I don’t care.” He then took her to his bedroom, where he touched her “boobs”
with his hand. Later, when E was sleeping, appellant took off her pajama pants. She was
awakened when she felt appellant trying put “his private parts” in her “private part.” She asked
appellant what he was doing, and he “did it” again––tried to touch his “private part” to her
“private part.” She remembered it felt “[n]asty” and that it hurt when appellant did this. E told
appellant to leave her alone.
E recalled another incident where she came home from school one day and appellant,
who was at home eating lunch, asked her to come into his bedroom. She tried to escape him by
running around the room, but appellant put his hand over her mouth when she started screaming.
She fought with him and tried to push him away as he attempted to put “his private parts” in her
“private part.” Appellant responded by slapping her face. Then she bit his arm and went to her
room. She testified that she thought appellant was going to harm her, and that she was afraid. E
remembered she had a “hickey” mark on her face after the fight, and that appellant scratched her
legs when he was slapping her.
E testified that she was afraid to tell anyone about the abuse because she feared she might
be separated from her family, and that appellant told her if anyone discovered what he was
doing, she would not have a family. She recalled that when she told appellant to stop mistreating
her, he said he did not care if he went to jail. Ultimately, E decided to tell an older sister, M,
about the abuse, and the two of them planned to run away from home. Before they could execute
their plan, however, the police came to their residence.
Yesenia Gonzalez, a supervisor of the forensic interview program at the DCAC,
interviewed E on April 24, 2012. Gonzalez testified that E described several acts of sexual abuse
committed by appellant, including one incident that occurred when E was sleeping in the living
room. On that occasion, appellant took her into his bedroom and told her he was going to sleep
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with her. E fought back when appellant tried to touch her, and after she hit appellant, he struck E
on the face and body. Appellant also “covered her mouth to where she couldn’t breathe, because
she was trying to yell,” but he eventually gave up and E left the bedroom.
The second incident that E described to Gonzalez happened one day when E was at home
from school because she was sick, and her sisters were staying late at school. E was in her
bedroom using the computer and appellant was at home watching a soccer game. During a break
in the game, he came into E’s room, removed her clothing, put her on the floor, got on top of her,
and then put his penis inside of her. E told Gonzalez she felt pain when appellant did that, and
that when appellant noticed it was time for E’s sisters to come home from school, he stopped.
As he was concluding the penetration, appellant grabbed and scratched E’s breast. E said she
was crying and that after appellant left to pick up E’s sisters from school, she took a shower.
The third incident occurred on a day when E came home from school before her sisters.
Appellant asked E to go to his bedroom and get his phone. He followed her into the room,
locked the door, and tried to touch her. E recalled that she grabbed something and hit appellant
with it, and that appellant hit her face and body. E also bit appellant. They struggled for a time
until appellant finally gave up and stopped.
The last incident took place one day when appellant asked E, who did not like the food
served at school, if she wanted appellant to buy her something to eat. After she said, “Yes,”
appellant told her that, in exchange for appellant buying her food, he was going to touch her.
When E said, “No,” appellant hit her. E bit appellant; he bit her back and hit her. Appellant
continued hitting E “until he finally stopped.” Gonzalez added, “I think she said she yelled or
screamed and her sisters came in and took her out of the room.” E also told Gonzalez about an
occasion where E and her sisters went through a window to get out of the house, but decided to
return and were disciplined for leaving the house.
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Sylvia Morris, a licensed professional counselor and intern at the DCAC, testified that E
was referred to her for continued treatment at the end of April, 2013, after another DCAC
therapist that had been treating E, Julie Espy, left the DCAC. Morris told the jury she had
approximately eight sessions with E. During those sessions, Morris tried to find activities to help
E “process the trauma of sexual abuse that she experienced in order to help her heal.” Morris
described E’s behavior in the therapy sessions as showing that she was “working through anger
and anxiety.” Asked whether she talked to the child about her anxiety of coming to court, Morris
responded: “Yes. She had increased anxiety as this was approaching, fears and anxieties about
facing her abuser.” 2
Dr. Matthew Cox, employed by the University of Texas Southwestern Medical School
Pediatrics Department, specialized in child abuse pediatrics and conducted sexual abuse
evaluations. He testified that on April 30, 2012, he conducted sexual assault examinations of
both M and E at the REACH (Referral and Evaluation of At-Risk Children) clinic. M’s patient
history showed she had been referred to the REACH clinic after she told a friend there was
sexual contact at home. She also reported changes in her sleep patterns and had “suicidal
ideations.” Sixteen years old on the date of the exam, M told Dr. Cox she had pain when
urinating, and that this would occur “after it happened with [appellant].” She also reported that
she experienced vaginal bleeding after a couple of the sexual episodes with appellant. She
reported that when she had sexual encounters with her peers, she did not have pain or bleeding.
Dr. Cox’s examination of M revealed that a section of M’s hymen was absent. The absence of
tissue indicated to Dr. Cox that M suffered “some type of penetrating injury previously” that did
not heal on its own. Dr. Cox could not determine when the injury occurred, not having seen
what M “looked like before.” He also noted that the injury to M’s hymen could have occurred as
2
Morris’s testimony is the basis for appellant’s fourth issue in cause 05-13-01092-CR.
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little as five days earlier, since it was the type of injury that can heal quickly, or it could have
been years old. Because M told Dr. Cox that when she had sexual intercourse with people other
than appellant, she had no pain or bleeding, Dr. Cox concluded “it would be more likely the
injury would have occurred from the sexual contact with her father based on her description of
the symptoms.” Dr. Cox clarified on cross-examination that his findings indicated M had two
other sexual partners who were peers.
Dr. Cox testified that E’s patient history showed that she had described some sexual
contact and was referred to the REACH clinic for a medical evaluation. She also reported
having nightmares, and her physical examination revealed that her hymen “was not normal.” It
was “kind of moon-shaped,” but thin, and the amount of tissue was less than Dr. Cox “would
normally expect.” In addition, E’s hymen had a deep notch “with a small amount of tissue at the
base.” The hymen was not torn all the way through, but the tear was nearly complete, “with just
a small amount of tissue at the base.” Dr. Cox concluded a deep notch like that was unusual. As
for whether it indicated a penetration injury, he testified:
It raises that concern. Because it has a little bit of tissue at the base, we
categorize that more as an indeterminate finding.
But if the child describes a sexual encounter, then it could be a result of
that. But by itself, it’s not as definitive as a transection, like [M] had. But it can
represent an injury, if there’s a history describing some penetrating event.
Dr. Cox read to the jury his written medical assessment, which concluded:
12 year old girl with concerns of sexual abuse. Medical examination identified
concerns of a deep notch of the hymen with small amount of tissue at the base.
This finding raises concern of a prior penetrating injury. The diagnosis of child
sexual abuse is dependent on the history provided by the child.
Dr. Cox testified on redirect that there was no other sexual contact described by E to explain the
abnormal examination results.
Appellant, forty-four years old when he testified, was born in Malange City, Angola, and
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came to the United States in 2001 at the age of thirty-two. His daughters initially remained in
Angola with their mother, but after appellant was granted asylum he arranged for them to be
brought to the U.S. M and her twin sister R moved to the U.S. in 2004; E followed in 2011.
Appellant testified that, at first, he, his daughters, and Cherie were a happy family. But appellant
started to notice “bad behavior, really bad behavior,” in the girls after he and Cherie separated.
Appellant learned from a neighbor that his daughters were not following his rules––leaving
school, coming home, putting on makeup, high heels, and then going out and not returning until
9 o’clock at night. Appellant also started noticing that his daughters were hiding things from
him. He told the girls they must focus on their education and that they could not have
boyfriends, and he did not allow them to sleep overnight in their friends’ homes. He did not
want them to wear shorts because shorts would show their bodies. Asked about some of the
punishments he would administer if the girls did not follow his rules, appellant said: “Basically,
I don’t have a specific punishment. It depends on what they do. I can whip the [sic] with a belt
or one of the things I always told them, ‘If you guys don’t behave, one day I’m going to send you
back to Angola.’” Appellant testified he told them that “[s]everal times.” Appellant also said he
would take away certain privileges such as use of the computer and telephone.
Appellant testified that E had behavioral and mental problems. He said that she got into
fights with her sisters and was combative, and that he considered taking E to a psychiatrist
because she fantasized that her mother, who lived in Africa, was with them in appellant’s home.
Appellant testified that none of E’s and M’s allegations of sexual abuse were true, that he never
touched E or M inappropriately, never asked them to touch his privates or masturbate him, nor
did he have sexual intercourse with them. Appellant also testified that he never forced E to have
sex with him or threatened her in order to force her to have sex with him. Appellant said he was
shocked when he learned about the accusations against him and that he could not believe it
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because he thought he and his daughters “had a pretty good relationship.” Asked if there was
any reason his daughters would fabricate these allegations, appellant testified that they may have
done so because of the restrictions and punishments he imposed on them––not being allowed to
wear makeup, for example, and threatening to send them back to Angola if they misbehaved.
Appellant testified that, on one occasion, he used a belt and “had to whip” both of his daughters
because he came home for lunch and found two boys in the house. One of the boys told
appellant that he came to talk to M; appellant told him that M did not need his friendship and he
was never to set foot in the house again. Appellant also testified that his daughters’ claims of
having sex with him two or three times a week when they were living with Cherie could not be
true. Appellant noted that the girls spent all day with Cheri, who took them to school and
brought them home in the afternoon, and that the entire family was together from 5:00 o’clock in
the evening until 9:00 o’clock at night, when Cherie would go to work. Appellant denied telling
M that she would become a prostitute because of what he was doing to her.
DISCUSSION
I. Cause 05–13–01114–CR
Cathy Dumond’s Testimony
In his only issue raised in cause 05–13–01114–CR, appellant contends that by referring to
M’s “trauma of being abused” and her nightmares of “being re-attacked,” Dumond implicitly
testified that she believed M’s allegations were true. During her redirect testimony, Dumond
testified as follows:
Q. [PROSECUTOR:] Ms. Dumond, do you believe [M]’s problems stem from
moving here from another country?
A. I believe that would not be the only thing that’s causing her problems, if it is
causing.
Q. But there’s something else that you think is the cause, root cause of a lot of
her issues?
–10–
A. Yes.
Q. What is that?
A. The trauma of being abused.
Q. You mentioned nightmares. Is that something that [M] dealt with in your
sessions?
A. Yes.
Q. What was her problem with nightmares?
A. She had nightmares of being killed. She had nightmares of her father killing
her. She had nightmares of being re-attacked in her sleep.
Q. And those are things that you all discussed in her therapy sessions?
A. Yes [emphasis added].
Appellant did not object to this testimony. To preserve a complaint for appellate review,
a specific and timely request, objection, or motion must be made to the trial court. TEX. R. APP.
P. 33.1(a); Lackey v. State, 364 S.W.3d 837, 843 (Tex. Crim. App. 2012) (stating that a party
should object as soon as that party knows or should know that an error has occurred). Because
appellant did not object during or at the conclusion of Dumond’s testimony concerning M’s
trauma of being abused or her nightmares of being re-attacked, the issue was not preserved for
appellate review. We overrule appellant’s issue.
II. Cause 05–13–01092–CR
Sufficiency of the Evidence
In his third issue in cause 05–13–01092–CR, appellant argues that the evidence is
insufficient to prove appellant put E in fear of death, serious bodily injury and kidnapping, as
alleged in the indictment. In reviewing a challenge to the sufficiency of the evidence, we
examine all of the evidence in the light most favorable to the verdict and determine whether a
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); Lucio v. State, 351 S.W.3d 878, 894–95
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(Tex. Crim. App. 2011); Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (plurality
op.). We must defer to the jury’s credibility and weight determinations because the jury is the
sole judge of the witnesses’ credibility and the weight to be given their testimony. See Jackson,
443 U.S. at 326.
The indictment in 05–13–01092–CR alleges that on or about February 15, 2012,
appellant did:
unlawfully then and there intentionally and knowing cause the contact and
penetration of the female sexual organ of [E], a child, hereinafter called
complainant, who was not then the spouse of defendant, by an object, to-wit: the
sexual organ of defendant, and at the time of the offense, complainant was
younger than 14 years of age, and further, said defendant, by acts and words, did
place complainant in fear that death, serious bodily injury, and kidnapping would
be imminently inflicted on complainant.
Section 22.021 of the Texas Penal Code, which defines the offense of aggravated sexual
assault of a child, provides in relevant part:
(a) A person commits an offense:
(1) if the person:
(B) intentionally or knowingly:
(i) causes the penetration of the anus or sexual organ of a child by any means; [or]
...
(iii) causes the sexual organ of the child to contact or penetrate the mouth,
anus, or sexual organ of another person, including the actor;
...
; and
(2) if:
(A) the person:
...
(ii) by acts or words places the victim in fear that . . . death, serious bodily
injury, or kidnapping will be imminently inflicted on any person;
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...
; [or]
(B) the victim is younger than 14 years of age[.]
TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(i), (a)(2)(A)(ii), (a)(2)(B). In relevant part, then, the
sexual assault defined under subsection (a)(1) becomes “aggravated” under (a)(2) if the
defendant’s acts or words place the victim in fear of the imminent infliction of death, serious
bodily injury, or kidnapping, or if the victim is a child younger than 14 years of age. Moreno v.
State, 413 S.W.3d 119, 128 (Tex. App.––San Antonio 2013, no pet.) (citing TEX. PENAL CODE
ANN. § 22.021(a)(2)(A)–(C)).
Aggravated sexual assault is a first degree felony offense punishable by imprisonment for
life or for any term of not more than 99 years or less than five, and a $10,000 fine. TEX. PENAL
CODE ANN. § 12.32. However, the minimum term of imprisonment is increased to 25 years if
the victim is younger than 14 years of age and the offense is committed “in a manner described
by subsection (a)(2)(A),” e.g., placing victim in fear that death, serious bodily injury, or
kidnapping will be imminently inflicted. See id. § 22.021(f)(2). “Commission of the offense
under subsection (f)(2), which effectively replaces the ‘or’ between subsection (a)(2)(A) and
(a)(2)(B) with an ‘and,’” is what the defendant in this case was charged with. See Moreno, 413
S.W.3d at 128 (referring to this as “super” aggravated sexual assault of a child).
The testimony of a child sexual abuse victim alone is sufficient to support a conviction
for aggravated sexual assault. TEX. CODE CRIM. PROC. ANN. art. 38.07(a); Bargas v. State, 252
S.W.3d 876, 888 (Tex. App.––Houston [14th Dist.] 2008, no pet.); Benton v. State, 237 S.W.3d
400, 404 (Tex. App.––Waco 2007, pet. ref’d); Tear v. State, 74 S.W.3d 555, 560 (Tex. App.––
Dallas 2002, pet. ref’d). A child victim is not required to be specific about the dates the abuse
occurred. See Dixon v. State, 201 S.W.3d 731, 736 (Tex. Crim. App. 2006) (“Especially where
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young children are involved, we have cautioned that courts cannot impose unrealistic
expectations regarding proof of when an offense actually occurred[.]”); Sledge v. State, 953
S.W.2d 253, 256 n. 8 (Tex. Crim. App. 1997) (“[I]t is not often that a child knows, even within a
few days, the date that she was sexually assaulted.”).
Appellant does not challenge the sufficiency of the evidence regarding the elements of
sexual assault; rather, the dispute concerns whether there is sufficient evidence he placed E in
fear that death, serious bodily injury, or kidnapping would be imminently inflicted on her. In
determining whether the State established the aggravating element of the offense, the jury was
required to assess whether the complainant was fearful, whether appellant’s conduct caused that
fear, and whether the complainant’s fear was a reasonable result of appellant’s conduct.
Grunsfeld v. State, 813 S.W.2d 158, 162 (Tex. App.––Dallas 1991), aff’d, 843 S.W.2d 521 (Tex.
Crim. App. 1992); Whitten v. State, Nos. 05–08–01141–CR & 05–08–01142–CR, 2009 WL
2246128, at *7 (Tex. App.––Dallas July 29, 2009, no pet.) (not designated for publication). The
first element, whether the complainant was in fact fearful, is usually established by the
complainant’s testimony. Douglas v. State, 740 S.W.2d 890, 891 (Tex. App.––El Paso 1987, no
pet.); Whitten, 2009 WL 2246128, at *7. In examining the second and third elements, the jury
may consider appellant’s objective conduct, i.e., acts, words, or deeds, and infer from the totality
of the circumstances whether his overall conduct was the producing cause of the complainant’s
fear and whether the subjective state of fear was reasonable in light of such conduct. Brown v.
State, 960 S.W.2d 265, 268 (Tex. App.––Corpus Christi 1997, no pet.); Whitten, 2009 WL
2246128, at *7.
It is not necessary to show the threat of serious bodily injury or death was communicated
verbally, nor is it necessary to show the defendant could have inflicted serious bodily injury, but
did not. See Lewis v. State, 984 S.W.2d 732, 734 (Tex. App.––Fort Worth 1998, pet. ref’d);
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Mata v. State, 952 S.W.2d 30, 32 (Tex. App.––San Antonio 1997, no pet.); Whitten, 2009 WL
2246128, at *7. The complainant need not use the exact words, “I was afraid.” Selvog v. State,
895 S.W.2d 879, 882 (Tex. App.––Texarkana 1995, pet. ref’d); Whitten, 2009 WL 2246128, at
*7. When the objective facts of the assault would naturally cause the complainant to fear for her
life or serious bodily injury, as where a deadly weapon, explicit threats, or excessive force or
violence are used, it is reasonable to assume the complainant had the requisite level of fear in the
absence of some specific evidence to the contrary. Brown, 960 S.W.2d at 268; Whitten, 2009
WL 2246128, at *7.
The complainant in 05–13–01092–CR, E, a thirteen year old girl, testified that, at first,
the thought of having sexual contact with appellant frightened her into submission. One of the
first instances of abuse she could recall occurred when appellant told her he wanted to touch her
“private part.” She testified: “I was scared and I didn’t want to say like nothing, no or nothing.
So I was really scared and I say, ‘I don’t care.’” E described vaginal intercourse with appellant
as painful. She also testified that when she tried to prevent appellant from “hurting” her by
fighting back, he slapped her face. In her outcry to Yesenia Gonzalez, E reported that appellant
locked her inside his bedroom, and that appellant restrained E when she screamed and attempted
to escape. When he tried to have sexual contact with her, he hit her in the face and then covered
her mouth. In her outcry, E recalled that she could not breathe when appellant held his hand over
her mouth. E knew she was not strong enough to fight off appellant’s sexual advances; she
defended herself by biting him. Appellant reacted by slapping her face, which left a mark others
mistook for a “hickey.” E testified that appellant told her that if she spoke to anyone about what
he was doing to her, she would not have a family. She also told the jury that “I was scared
because I don’t want to lose my daddy and I didn’t want to lose my sisters.” Dr. Cox found a
deep notch on E’s hymen that, combined with E’s outcry of sexual abuse, could represent a
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penetration injury.
Viewed in the light most favorable to the verdict, the evidence of appellant’s conduct,
such as slapping E and placing his hand over her mouth until she felt that she could not breathe,
along with the other objective facts surrounding the sexual assault, including appellant’s superior
strength, is sufficient to establish that his conduct was the cause of the complainant’s fear and
that E’s fear was a reasonable result of the conduct. Therefore, we conclude the evidence is
sufficient to establish that, while appellant committed the sexual assault, by acts or words he
placed E in fear that death, serious bodily, or kidnapping would be imminently inflicted upon
her. We overrule appellant’s third issue.
Failing to Define Serious Bodily Injury in the Jury Charge
In his first issue, appellant argues that the trial court erred by failing to define “serious
bodily injury” in the jury charge. The application portion of the jury charge in this case reads in
part as follows:
Now, bearing in mind the foregoing instructions, if you find and believe
from the evidence, beyond a reasonable doubt, that the defendant, Roberto Martin
Lourenco, on or about the 15th day of February 2012, in the County of Dallas and
State of Texas, did unlawfully then and there, intentionally or knowingly, cause
the contact or penetration of the female sexual organ of [E], a child hereinafter
called complainant, who was not the spouse of the defendant, by an object, to-wit:
the sexual organ of defendant, and at the time of the offense, complainant was
younger than 14 years of age, and further, said defendant by acts and words, did
place complainant in fear that death, serious bodily injury or kidnapping would be
imminently inflicted on complainant, then you will find the defendant guilty of
the offense of Aggravated Sexual Assault, as charged in the indictment.
Unless you so find beyond a reasonable doubt, or if you have a reasonable
doubt thereof, or if you are unable to agree, you will next consider whether the
defendant is guilty of the lesser included offense of Aggravated Sexual Assault of
a Child without placing complainant in fear that death, serious bodily injury or
kidnapping would be imminently inflicted on complainant. The elements of
Aggravated Sexual Assault of a Child are set forth above.
Now, bearing in mind the foregoing instructions, if you find and believe
from the evidence, beyond a reasonable doubt, that the defendant, Roberto Martin
Lourenco, on or about the 15th day of February 2012, in the County of Dallas and
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State of Texas, did unlawfully then and there, intentionally or knowingly, cause
the contact or penetration of the female sexual organ of [E], a child hereinafter
called complainant, who was not the spouse of the defendant, by an object, to-wit:
the sexual organ of defendant, and at the time of the offense, complainant was
younger than 14 years of age, then you will find the defendant guilty of the
offense of Aggravated Sexual Assault, as included in the indictment [emphasis
added].
Nowhere in the charge, however, is the term “serious bodily injury” defined.
The trial court is responsible for delivering to the jury “a written charge distinctly setting
forth the law applicable to the case. . . .” TEX. CODE CRIM. PROC. ANN. art. 36.14. If a phrase,
term, or word that the jury must use to properly resolve an issue is statutorily defined, the trial
court must submit the statutory definition to the jury. Arline v. State, 721 S.W.2d 348, 352 n. 4
(Tex. Crim. App. 1986) (stating “a statutorily defined word or phrase must be included in the
charge as part of the ‘law applicable to the case’”). The Texas Penal Code defines “serious
bodily injury” as “bodily injury that creates a substantial risk of death or that causes death,
serious permanent disfigurement, or protracted loss or impairment of the function of any bodily
member or organ.” TEX. PENAL CODE ANN. §1.07(a)(46). Thus, the trial court was required to
submit the statutory definition of “serious bodily injury” to the jury. See Parsons v. State, 191
S.W.3d 862, 864 (Tex. App.––Waco 2006, pet. ref’d) (trial court should have included definition
of “serious bodily injury” in jury charge in aggravated assault prosecution, but appellant did not
suffer egregious harm because term was used only in defensive portion of instructions on law of
self-defense, and jury was not misled by omission of definition). The trial court’s failure to do
so was error.
Appellant, however, did not object to the lack of a “serious bodily injury” definition in
the charge when it was submitted to the jury. Nor did he object when the trial court received a
jury note asking for a definition of the term, and the court ordered the deliberations to continue
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without it. 3 Unobjected-to charge error will not result in reversal of a conviction in the absence
of egregious harm. Allen v. State, 253 S.W.3d 260, 264 (Tex. Crim. App. 2008); Almanza v.
State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g). In examining the record for
egregious harm, we must consider (1) the entire jury charge, (2) the state of the evidence,
including the contested issues and the weight of the probative evidence, (3) the final arguments
of the parties, and (4) any other relevant information revealed by the record of the trial as a
whole. Allen, 253 S.W.3d at 264; Olivas v. State, 202 S.W.3d 137, 144 (Tex. Crim. App. 2006).
The purpose of this review is to illuminate the actual, not just theoretical, harm to the accused.
Almanza, 686 S.W.2d at 174. Jury charge error is egregiously harmful if it affects the very basis
of the case, deprives the defendant of a valuable right, or vitally affects a defensive theory.
Allen, 253 S.W.3d at 264; Stuhler v. State, 218 S.W.3d 706, 719 (Tex. Crim. App. 2007).
Applying these factors, we find no indication that “serious bodily injury” was a contested
issue at trial. A review of the arguments of counsel, the examination of witnesses, and the voir
dire examination shows no mention of the term. Additionally, looking at the evidence,
appellant’s defense was a complete denial of E’s allegations. He argued she was lying because
she was a rebellious girl who wanted to be free of his restrictions. On cross-examination, when
asked if he saw E break down on the witness stand as she discussed the abuse he allegedly
inflicted on her, appellant testified, “I didn’t do nothing to her.” Asked about the medical
evidence, he said, “No, it is not true. The allegations are not true.” Referring to Dr. Cox’s
testimony regarding the deep notch in E’s hymen, the prosecutor asked appellant, “But you want
this jury to believe that’s just not true, what the doctor said?” Appellant replied, “No, I don’t
want them to believe that. I just don’t want them––I just want them to know that I don’t have
3
The note from the jury asked, “What is the definition of serious bodily injury?” The trial court’s written response stated, “You have all the
law and evidence that you are entitled to. Continue to deliberate.”
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nothing to do with it.” The prosecutor then asked, “You don’t have anything to do with it;
okay.” Appellant responded, “That’s correct.” Appellant similarly testified, referring to Dr.
Cox’s medical assessment of E, that he heard Dr. Cox say he could not tell if E’s injury was
caused by penetration, and that the doctor was not sure. As for the jury charge, it also authorized
the jury to convict appellant of the charged offense based on an imminent infliction of death or
kidnapping, neither of which were defined, and the jury was authorized to convict appellant of
the lesser included offense of aggravated sexual assault of a child without placing complainant in
fear that death, serious bodily injury or kidnapping would be imminently inflicted on her. We
therefore cannot conclude, given the jury charge, the evidence, the arguments of counsel, and
other relevant information, that appellant suffered egregious harm. We overrule appellant’s first
issue.
Violation of Appellant’s Right to a Unanimous Jury Verdict
In his second issue, appellant contends that the disjunctive submission in the jury charge
regarding placing the victim in fear of imminent death, serious bodily injury, or kidnapping,
violated his right to a unanimous jury verdict. Appellant argues that, because of the disjunctive
jury instruction, the jury was never required to unanimously agree on whether he placed the
complainant in fear of death, serious bodily injury, or kidnapping.
A jury must be unanimous in finding every constituent element of the charged offense in
all criminal cases. See Jourdan v. State, 428 S.W.3d 86, 94 (Tex. Crim. App. 2014). Unanimity
in this context means that each and every juror agrees that the defendant committed the same,
single, specific criminal act. Ngo v. State, 175 S.W.3d 738, 745 (Tex. Crim. App. 2005). The
requirement of jury unanimity is not violated by a jury charge that presents the jury with the
option of choosing among various alternative manner and means of committing the same
offense. Jourdan, 428 S.W.3d at 94. “‘Therefore, different modes of commission may be
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presented in a jury instruction in the disjunctive when the charging instrument, in a single count,
alleged the different means in the conjunctive.’” Id. (quoting Pizzo v. State, 235 S.W.3d 711,
715 (Tex. Crim. App. 2007)); see also Hudson v. State, No. PD–1699–13, 2014 WL 6983248, at
*2 n. 4 (Tex. Crim. App. Dec. 10, 2014) (“Different methods of committing an offense that are
alleged in the conjunctive in an indictment may generally be alleged in the disjunctive in the jury
charge.”).
Subsection (f)(2) of section 22.021 provides for a 25-year minimum term of
imprisonment if the victim is a child younger than 14 years of age and the offense was
committed “in a manner described by Subsection (a)(2)(A)”––thereby recognizing that the
alternatives listed under subsection (a)(2)(A) are different manners of committing the offense of
aggravated sexual assault of a child. See TEX. PENAL CODE ANN. § 22.021(a)(2)(A)(ii), (f)(2).
The application paragraph of the jury charge, as quoted earlier, instructed the jurors that they
could convict appellant of aggravated sexual assault if they found he committed sexual assault
and that, at the time of the offense, the complainant was younger than 14 years of age, and
further, that he placed the complainant in fear that death, serious bodily injury, or kidnapping
would be imminently inflicted on the complainant. The charge, in other words, submitted the
aggravating features of the statute disjunctively. Whether appellant placed the complainant in
fear of death or serious bodily injury or kidnapping during the course of the sexual assault, only a
single crime of aggravated sexual assault was committed. The aggravating elements were simply
alternative methods of committing the same offense. Hence, the trial court did not err by
submitting the aggravating elements disjunctively. See Kitchens v. State, 823 S.W.2d 256, 258
(Tex. Crim. App. 1991) (concluding aggravating elements of capital murder were alternative
methods of committing same offense and trial court did not err by submitting the elements
disjunctively); see also DeLeon v. State, No. 13–08–00170–CR, 2009 WL 4909434, at *3 (Tex.
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App.––Corpus Christi Dec. 21, 2009, no pet.) (mem. op., not designated for publication); Davis
v. State, No. 05–05–01694–CR, 2007 WL 122138, at *6 (Tex. App.––Dallas Jan. 18, 2007, no
pet.) (not designated for publication). Having determined that the jury instruction was not
erroneous, we need not decide whether appellant suffered egregious harm. See Ngo, 175 S.W.3d
at 743-44. We overrule appellant’s second issue.
Sylvia Morris’s Testimony
In his fourth issue, appellant argues that by referring to the trauma of the sexual abuse
that E “experienced,” and E’s anxiety caused by “facing her abuser” when coming to court,
Morris implicitly testified that she believed E’s allegations were true. The relevant portion of the
record reads as follows:
Q. [PROSECUTOR:] And what type of activities are you doing with [E] in your
sessions?
A. [MORRIS:] We’re just finding activities to help [E] process the trauma of
sexual abuse that she experienced in order to help her heal.
Q. What types of activities do you do?
A. Any activities that help her express her emotions, her thoughts and feelings
that she’s having. So anything to work with her hands, if she can’t verbalize how
she’s feeling, face charts or different activities that help her express how she’s
feeling.
Q. And how would you describe her behavior and demeanor in your therapy
sessions?
A. She is working through anger and anxiety, still working with those.
Q. And did you talk with her about anxiety of coming to court?
A. Yes. She had increased anxiety as this was approaching, fears and anxieties
about facing her abuser [emphasis added].
Appellant did not object to this testimony. To preserve a complaint for appellate review,
a specific and timely request, objection, or motion must be made to the trial court. TEX. R. APP.
P. 33.1(a); Lackey, 364 S.W.3d at 843. Because appellant did not object during or at the
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conclusion of Morris’s testimony regarding the trauma E “experienced,” or her anxiety of
“facing her abuser,” the issue was not preserved for appellate review. We overrule appellant’s
fourth issue.
III. Modification of Judgments
The judgments in both of the above cases incorrectly state that the “Sex Offender
Registration Requirements do not apply to the Defendant,” and they do not state the age of the
victim at the time of the offense. Appellant’s convictions for aggravated sexual assault of a child
under the age of fourteen and continuous sexual abuse of a child under the age of fourteen are
among those defined as a “[r]eportable conviction or adjudication” for purposes of the sex
offender registration statute. See TEX. CODE CRIM. PROC. ANN. art. 62.001(5)(A) (stating, in
part, that a conviction based on a violation of section 21.02, continuous sexual abuse of a child,
or of section 22.021, aggravated sexual assault, is a “[r]eportable convictions or adjudication”).
As a person who has a reportable conviction or adjudication, appellant would be subject to the
registration requirements of that program. See id. art. 62.051.
As alleged in the indictments and proven in this case, the victims were younger than
fourteen years of age on the alleged dates of the offenses. Because there is sufficient evidence to
support the conviction in each case, and because the offense in each case required a showing that
the age of the victim was younger than fourteen, on our own motion we modify the judgments in
05–13–01114–CR and 05–13–01092–CR to show that the sex offender registration requirements
apply and that the age of the victim at the time of the offense was younger than fourteen years of
age. See TEX. R. APP. P. 43.2(b); Asberry v. State, 813 S.W.2d 526, 529–30 (Tex. App.––Dallas
1991, pet. ref’d) (appellate court has authority to modify incorrect judgments sua sponte when
the necessary information is available to do so); see also Tyler v. State, 137 S.W.3d 261, 267–68
(Tex. App.––Houston [1st Dist.] 2004, no pet.) (authority to modify judgment not dependent
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upon a party’s request); Ruiz v. State, No. 05–12–01703–CR & 05–12–01704–CR, 2014 WL
2993820, at *12 (Tex. App.––Dallas June 30, 2014, no pet.) (not designated for publication)
(modifying judgments to show applicability of sex offender registration requirements and that
age of victim at time of offense was younger than 14 years of age because evidence was
sufficient to support convictions in each of the counts, which required a showing that age of
victim was younger than fourteen years of age); Medlock v. State, No. 05–11–00668–CR, 2012
WL 4125922, *1–2 (Tex. App.––Dallas Sept. 20, 2012, no pet.) (mem. op., not designated for
publication) (same); Johnson v. State, No. 05–06–00037–CR, 2007 WL 60775, at *7 (Tex.
App.––Dallas Jan. 10, 2007, no pet.) (not designated for publication) (same).
As modified, the trial court’s judgments are affirmed.
/ Lana Myers/
LANA MYERS
JUSTICE
Do Not Publish
TEX. R. APP. P. 47
131092F.U05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
ROBERTO MARTIN LOURENCO, On Appeal from the Criminal District Court
Appellant No. 6, Dallas County, Texas
Trial Court Cause No. F12-54932-X.
No. 05-13-01092-CR V. Opinion delivered by Justice Myers. Justices
Bridges and Lang-Miers participating.
THE STATE OF TEXAS, Appellee
Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED
as follows:
“Sex Offender Registration Requirements do not apply to the Defendant. TEX.
CODE CRIM. PROC. chapter 62” should be changed to “Sex Offender Registration
Requirements apply to the Defendant. TEX. CODE CRIM. PROC. chapter 62”
“The age of the victim at the time of the offense was” should be changed to “The
age of the victim at the time of the offense was younger than 14 years of age”
As MODIFIED, the judgment is AFFIRMED. We direct the trial court to prepare a new
judgment that reflects these modifications.
Judgment entered this 28th day of January, 2015.
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
ROBERTO MARTIN LOURENCO, On Appeal from the Criminal District Court
Appellant No. 6, Dallas County, Texas
Trial Court Cause No. F12-54842-X.
No. 05-13-01114-CR V. Opinion delivered by Justice Myers. Justices
Bridges and Lang-Miers participating.
THE STATE OF TEXAS, Appellee
Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED
as follows:
“Sex Offender Registration Requirements do not apply to the Defendant. TEX.
CODE CRIM. PROC. chapter 62” should be changed to “Sex Offender Registration
Requirements apply to the Defendant. TEX. CODE CRIM. PROC. chapter 62”
“The age of the victim at the time of the offense was” should be changed to “The
age of the victim at the time of the offense was younger than 14 years of age”
As MODIFIED, the judgment is AFFIRMED. We direct the trial court to prepare a new
judgment that reflects these modifications.
Judgment entered this 28th day of January, 2015.
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