Arturo D. Flores v. State ( 2014 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-13-00150-CR
Arturo D. FLORES,
Appellant
v.
The State of
The STATE of Texas,
Appellee
From the 187th Judicial District Court, Bexar County, Texas
Trial Court No. 2012CR7463
Honorable Raymond Angelini, Judge Presiding
Opinion by: Marialyn Barnard, Justice
Sitting: Catherine Stone, Chief Justice
Marialyn Barnard, Justice
Patricia O. Alvarez, Justice
Delivered and Filed: January 22, 2014
AFFIRMED
A jury found appellant Arturo D. Flores guilty of three counts of indecency with a child by
contact. The counts involved two different complainants, K.G. and K.R. The trial court sentenced
Flores to twenty years imprisonment on each count. On appeal, Flores contends the evidence was
legally insufficient to support his conviction and the trial court erred by admitting evidence of
certain prior bad acts during the punishment phase of trial. We affirm the trial court’s judgment.
04-13-00150-CR
BACKGROUND
Flores was a teacher at a private school in San Antonio. Two students, K.G. and K.R.,
alleged Flores touched them inappropriately during a computer lab class. K.G. was a second grader
and was in a computer class taught by Flores. The computer classroom was laid out with long
tables along the walls with computers on top of the table. Students facing the computers also faced
the wall with their backs to the center of the room. When a student needed assistance, Flores
would go to the student at his or her individual computer. According to K.G., when she asked
Flores for help she remained seated in her chair and Flores reached over her shoulders to touch the
keyboard. On two occasions, K.G. claimed that after helping her with the computer, Flores put
his hands under the computer table and touched her genital area over her clothes (“[m]y private
parts, where if you need to go to the restroom”). K.G. testified she did not tell anyone after the
first incident because she was afraid she would get in trouble. After the second incident, K.G. told
her mother that same evening what had happened. K.G.’s mother and father subsequently reported
the events to the proper authorities.
K.R. was a third grader at the school and like K.G., K.R. took a computer class taught by
Flores. K.R. testified about one incident where Flores inappropriately touched her. According to
K.R., on one occasion in computer class, Flores came over to assist her and asked K.R. to stand
up. Flores then sat in K.R.’s chair and told her to sit back down. K.R. sat on Flores’s leg. Flores
asked K.R. to open her legs. Flores then put his hand down K.R.’s skirt, under her underwear, and
touched her genitals “inappropriately.” K.R. did not immediately report this incident. Instead,
K.R. waited approximately one year before she told her grandmother about the touching. K.R.
testified she waited because: (1) “I forgot all about it and then I had gotten scared”; and (2) “I
forgot all about it when I was with my friends and stuff.” When asked about what made her
remember the incident almost a year later and report it to her grandmother, K.R. testified: “Like,
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everything that was going on and stuff. Like, when I told my grandma, I told her because I heard,
like, voices in my head saying to tell her and stuff . . . [a]nd I had, like, pounding in my head.”
Flores denied inappropriately touching K.G., K.R., or any other child. According to Flores,
it was not his procedure to lean over students to help with computer issues. Rather, he would
either have the students stand up while he sat in their chair or he would pull up a chair next to the
student. Further, Flores denied even assisting K.G. with her computer on the days of the alleged
inappropriate touching.
Despite Flores’s denials, the jury found him guilty. The trial court then attempted to
proceed with the punishment phase of the proceedings that same afternoon. However, prior to the
initiation of the punishment phase, the State revealed that two of the three child witnesses it
intended to use as witnesses during the punishment phase were discovered the night before. Flores
did not receive actual notice of the new witnesses, C.M. and A.N., until the morning of the verdict,
and he objected to any testimony by the previously unknown witnesses based on lack of notice.
The State advised the court that it gave as much notice as possible considering it did not know of
the witnesses until close to 5:00 p.m. the previous day. After considering Flores’s objection and
the State’s response, the trial court postponed the proceedings until the following morning.
The next morning, the trial court heard Flores’s formal objection under article 37.07(3)(g)
of the Texas Code of Criminal Procedure, which requires the State to provide sufficient notice of
witnesses used to present evidence of extraneous bad acts after a finding of guilt. The trial court
determined the State’s notice did not meet the requirements of article 37.07 and postponed further
proceedings until the following Monday.
On Monday, the trial court heard Flores’s renewed objection under 37.07. Although Flores
conceded he had by now received proper written notice complying with 37.07(g), he contended
the notice was so late as to amount to an unfair surprise because he did not have sufficient time to
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prepare a defense of the new witnesses’ testimony. After noting Flores had since the previous
Thursday to prepare a defense, the trial court held there was adequate notice in this situation and
denied Flores’s objection. C.M. and A.N., the “surprise” 1 witnesses, testified during the
punishment.
C.M., a sixth grader at the time of the incidents, testified: (1) Flores would “smack girl’s
butts and go up their leg” (meaning “[h]e would go up their skirts”); (2) Flores did this to C.M.;
(3) Flores put his hand in A.N.’s shirt so he could “feel her heartbeat”; and (4) Flores would lean
over the seated children’s back when assisting them at their computer in class. Counsel for Flores
did not cross examine C.M.
A.N., also a sixth grader at the time of the incidents, testified to accounts similar to those
described by C.M. A.N. verified Flores had touched her chest, under the shirt, to “feel your
heartbeat.” Thereafter, Flores called his wife and son as witnesses to support his request for
probation.
After hearing all of the witnesses’ testimony, the jury recommended a sentence of twenty
years on each count, and the trial court sentenced Flores according to the jury’s recommendation.
The trial court ordered the sentences to run concurrently. Thereafter, Flores perfected this appeal.
ANALYSIS
In three points of error, Flores contends: (1) the evidence is legally insufficient to support
his convictions with regard to K.G.; (2) the evidence is legally insufficient to support his conviction
with regard to K.R.; and (3) the trial court erred in admitting the testimony of C.M. and A.N.
during the punishment phase over his article 37.07, section 3(g) objection.
1
At trial, counsel for the State conceded “[these] [are] surprise witness[es] for all of us.”
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Legal Sufficiency
When determining the sufficiency of the evidence, we view all the evidence in the light
most favorable to the verdict to determine whether any rational trier of fact could have found the
essential elements of the offense beyond a reasonable doubt. Wise v. State, 364 S.W.3d 900, 903
(Tex. Crim. App. 2012); see Jackson v. Virginia, 443 U.S. 307, 318 (1979). If the record supports
conflicting inferences, we must presume the factfinder resolved the conflicts in favor of the verdict
and defer to that determination. Wise, 364 S.W.3d at 903. The factfinder alone determines the
weight and credibility of the evidence. Id. We may not re-evaluate the weight and credibility of
the record and substitute our judgment for that of the factfinder. Williams v. State, 235 S.W.3d
742, 750 (Tex. Crim. App. 2007).
Flores was convicted of three counts of indecency with a child by contact. A person
commits indecency with a child by contact if the person engages in “sexual contact” with a child
younger than seventeen years of age. TEX. PENAL CODE. ANN. § 21.11(a)(1) (West 2011). “Sexual
contact” includes the touching through clothing, of the anus, breast, or any part of the genitals of
a child with the intent to arouse or gratify the sexual desire of any person. Id. § 21.11(c) (emphasis
added). “A complainant’s testimony alone is sufficient to support a conviction for indecency with
a child.” Moore v. State, 397 S.W.3d 751, 754 (Tex. App.—San Antonio 2013, no pet.) (quoting
Connell v. State, 233 S.W.3d 460, 466 (Tex. App.—Fort Worth 2007, no pet.)).
Sufficiency of Evidence – K.G.
Flores specifically contends the evidence is legally insufficient to support a finding of the
requisite intent for “sexual contact” under the Penal Code. The specific intent to arouse or gratify
the sexual desire of any person, as required for the offense of indecency with a child, can be
inferred from the defendant’s conduct, his remarks, and all surrounding circumstances. McKenzie
v. State, 617 S.W.2d 211, 216 (Tex. Crim. App. 1981); Moore, 397 S.W.3d at 754.
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Flores contends the evidence merely shows incidental contact with K.G. According to
Flores, the contact “was incidental to the assistance provided to the children, and was a factor of
the close quarters and small equipment used in the computer lab designed to accommodate
children.” Although possible, viewing the evidence in a light most favorable to the verdict, we
disagree with Flores, based on the evidence, that the contact was merely incidental. K.G. testified
Flores slipped his hand under the table to touch her genitals on two occasions and such touching
of sexual organs supports an inference of intent to gratify Flores sexually. Accordingly, we hold
the evidence is legally sufficient to establish Flores intended to make sexual contact with K.G. as
required for the offense of indecency with a child by contact. See Moore, 397 S.W.3d at 754
(finding evidence sufficient where complainant testified to defendant touching her “private area”).
Sufficiency of Evidence – K.R.
Flores contends the evidence supporting the conviction for indecent contact with K.R. is
legally insufficient because her testimony was inconsistent and unreliable. Flores directs us to
K.R.’s testimony that Flores continued to be a good teacher even after the incident, waited a year
to tell anyone what happened to her, and eventually told her grandmother what happened because
of the voices in her head. As mentioned above, the factfinder alone determines the weight and
credibility of the evidence. Wise, 364 S.W.3d at 903 (emphasis added). Even if the veracity of
the witness’s testimony appears suspect on the face of the record, we may not substitute our
judgment for that of the factfinder. Williams, 235 S.W.3d at 750. We refuse to do so now.
Accordingly, we hold the evidence supporting Flores’s conviction for indecent contact with K.R.
is legally sufficient.
Extraneous Evidence - Punishment Phase
Flores contends the trial court erred by allowing C.M. and A.N. to testify to extraneous bad
acts during the punishment phase of trial. We review a trial court’s decision to admit extraneous
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bad act evidence during the punishment phase of a trial under 37.07 section 3(g) for an abuse of
discretion. Scott v. State, 57 S.W.3d 476, 480–81 (Tex. App.—Waco 2001, pet. ref’d) (citing
Mitchell v. State, 931 S.W.2d 950, 953 (Tex. Crim. App. 1996)). We will uphold the trial court’s
ruling if it is within the zone of reasonable disagreement. Sexton v. State, 93 S.W.3d 96, 99 (Tex.
Crim. App. 2002).
On timely request of the defendant, article 37.07, section 3(g) of the Code of Criminal
Procedure requires the State give reasonable notice to the defense if it intends to introduce evidence
of extraneous bad acts. See TEX. CODE CRIM. PROC. ANN ART. 37.07 § 3(g) (West Supp. 2013).
This notice is given in the same manner required by Texas Rules of Evidence 404(b). Id.
Normally, in order to trigger the State’s obligation under article 37.07, a defendant must either: (1)
serve the State with a request for notice, or (2) file a discovery motion requesting the court to order
such notice and secure a ruling thereon. Henderson v. State, 29 S.W.3d 616, 625 (Tex. App.—
Houston [1st Dist.] 2000, pet. ref’d) (citing Mitchell v. State, 982 S.W.2d 425, 427 (Tex. Crim.
App. 1998)). Here, the record reflects Flores did neither.
The record reflects that at no point did Flores formally request notice pursuant to article
37.07 section 3(g) prior to the commencement of the punishment phase. The only mention in the
record of such a request comes in Flores’s motion in limine. 2 A motion in limine seeks action by
the trial court and cannot also serve as a request for notice triggering the State’s duty under article
37.07 section 3(g); to hold otherwise would encourage gamesmanship. See Mitchell v. State, 982
S.W.2d 425, 427 (Tex. Crim. App. 1998). Accordingly, the State was not required to give notice
of the punishment phase testimony of C.M. and A.N. pursuant to article 37.07.
2
“ARTURO FLORES also moves to exclude all extraneous crime or misconduct evidence, notice of which was
requested by Defendant, but not provided by the state [sic] as required by Rules 404(b) and 609(f) of the Texas Rules
of Evidence, and Art. 37.07(g) of the Texas Code of Criminal Procedure.” (emphasis added). Despite his statement
in the motion in limine, the record does not include a request for notice.
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However, despite not properly invoking the State’s duty to comply with 37.07 section 3(g),
Flores benefitted from its protection. As mentioned previously, the trial court ordered the State to
comply with the notice requirements of article 37.07 after Flores objected to the testimony of C.M.
and A.N. In addition, the trial court delayed the punishment phase of the proceedings to give
Flores time to prepare a defense to the testimony.
The ultimate purpose of article 37.07 section 3(g) is to avoid unfair surprise and give the
defendant adequate time to prepare for the extraneous offense evidence of the State in order to
avoid a trial by ambush. James v. State, 47 S.W.3d 710, 713 (Tex. App.—Texarkana, no pet.).
Here, the trial court’s actions gave Flores several days to prepare for the testimony of C.M. and
A.N. even though he was legally entitled to none. We decline to find the trial court abused its
discretion.
CONCLUSION
Based on the foregoing, we overrule Flores’s points of error and affirm the trial court’s
judgment.
Marialyn Barnard, Justice
Do Not Publish
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