David Nino v. State ( 2020 )

Opinion issued November 24, 2020
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-19-00510-CR
NO. 01-19-00511-CR
———————————
DAVID NINO, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 209th District Court
Harris County, Texas
Trial Court Cause Nos. 1548025, 1548026
MEMORANDUM OPINION
Appellant, David Nino, was indicted for two offenses—indecency with a child
and sexual assault of a child.1 Appellant waived his right to a jury trial, was
1
See TEX. PENAL CODE §§ 21.11 (indecency with child), 22.011(a)(2) (sexual assault
of child).
convicted of both offense by the trial court, and sentenced to seven years’
confinement for each conviction. The sentences are cumulative. In his sole issue,
appellant challenges the sufficiency of the evidence supporting the convictions.
We affirm.
Background
When the complainant, C.R., was twelve years old, appellant, her stepfather,
began sexually abusing her. Although C.R. did not know the precise number of
times the abuse occurred, she remembered “four vivid times it happened.”
The abuse began when C.R. visited appellant at his sister’s house. C.R.
testified that appellant put his hands down her pants and stroked her vagina over her
underwear. C.R. was asleep at the time and when she realized what was happening,
appellant asked if she wanted him to “finish.” C.R. thought appellant meant to stop,
so she said “yes.” As described by C.R., “that’s when [appellant’s] face was going
down towards my private area and that’s when I pushed his face away.” She testified
that appellant stopped and took her outside to explain himself: “He started trying to
explain why he did what he did, that women have this kind of treasure—like,
referring to our vaginas—and that’s why he couldn’t help himself . . . he was sorry
for doing what he did and that it wouldn’t happen again.”
C.R. recalled a second episode of abuse during a camping trip with appellant’s
family. C.R. testified that she was in appellant’s tent, lying down at night, when he
2
started rubbing and stroking her vagina above her shorts. She testified that he asked
if she liked it and she responded “no.” Appellant stopped and left the tent.
A third episode of abuse occurred during a birthday party for appellant’s
nephew, again at the home of appellant’s sister. C.R. was turning thirteen years old.
She was lying down on the bed when appellant came in and began “rubb[ing] and
strok[ing]” her vagina, below her pants but above her underwear. C.R. pushed
appellant’s hand away, and he stopped. Appellant asked C.R. to go outside with
him, and “[h]e just kept on apologizing and saying it wasn’t going to happen again
and that he doesn’t know why he does it.”
The last incident of abuse occurred on January 1, 2017, when C.R. was
fourteen. C.R. was staying with appellant on New Year’s Eve because both of C.R.’s
parents worked. C.R.’s two half-brothers, who are the sons of appellant and C.R.’s
mother, also were staying with appellant. C.R. testified that she and appellant were
driving home from a party around 3:00 a.m. when appellant unbuttoned her pants
and “stuck his fingers inside of [her] vagina on the road while he was driving.”
Because she “didn’t know what else to do,” C.R. pretended to be asleep. Appellant
stopped when he got out of the car at a gas station, but, after he returned to the car,
“he started to do it again for the rest of the ride home.”
Back at appellant’s house, C.R. waited for appellant to fall asleep and then hid
in the bathroom, where she sent messages asking her father and mother to come get
3
her. C.R. told her parents that appellant had touched her, and C.R.’s mother called
the police. When the police arrived, C.R. told them what had happened. The police
told C.R.’s parents to take C.R. for a sexual assault examination at the hospital.
Karla Romero, a forensic nurse at Texas Children’s Hospital, performed a
sexual assault examination on C.R. on January 1. Romero testified that a sexual
assault examination “consists of four parts.” The first step is to obtain a medical
history from the patient. The second step is a “detailed head-to-toe assessment.”
The third step is a “detailed anogenital examination, and the fourth is collection of
evidence.” During the anogenital exam, C.R. complained of tenderness, and Romero
observed redness and a “partial tear at 3:00 o’clock on the hymen.” C.R. told
Romero there had been penetration during the abuse that had occurred that same
morning and, according to Romero, penetration may cause tearing.
Sarah Ball, a forensic evaluation clinician at the Children’s Assessment
Center, interviewed C.R. on March 2, 2017. A recording of Ball’s interview with
C.R. was introduced at trial. Ball testified that C.R. disclosed multiple incidents of
abuse. The first incident occurred during the summer when C.R. was twelve years
old at her aunt’s house where appellant was living. C.R. told Ball that appellant
entered the bedroom where she was asleep and “touched her vagina underneath her
clothing.” When appellant realized C.R. was awake, appellant stopped, took C.R.
4
outside, “apologized to her[,] and told her he didn’t mean it and . . . didn’t know
what he was doing.”
According to Ball, C.R. revealed that “[t]he next incident happened the same
year in November . . . at [appellant’s] nephew’s birthday party.” While C.R. was
asleep, appellant “came into the room and began touching her in the same manner
as before, rubbing her vagina underneath her clothing.” When C.R. moved
appellant’s hand away, appellant began to pull down her pants and underwear and
moved his mouth toward C.R.’s “lower area.” Appellant asked C.R. if it was okay.
He stopped when she told him “no.”
Finally, Ball testified that C.R. described another incident of abuse during a
Spring Break camping trip in 2016. C.R. told Ball that she was asleep in the tent
while her brothers played outside. Appellant “came into her tent and began touching
her in the same area as before.” When C.R. told appellant she did not like that,
appellant stopped and left the tent. Ball described C.R.’s demeanor as “very
consistent . . . [with] someone who has been abused” and that she “seemed nervous.”
Sergeant L. Donovan, an officer with the Houston Police Department Crimes
Against Children Unit, served as the lead investigator of the sexual assault that
occurred on January 1, 2017. In connection with his investigation, Sergeant
Donovan interviewed appellant and obtained his consent for a buccal swab. The
recording from Sergeant Donovan’s interview of appellant was entered into evidence
5
at trial. Appellant told Sergeant Donovan that C.R. was not telling the truth about
the allegations because she wanted to go live with her father.
The buccal swab taken from appellant was analyzed against various samples
taken from C.R. during the sexual assault examination and, although male DNA was
present on those samples, forensic DNA analysts were unable to obtain a male DNA
profile or draw any conclusion as to whether appellant’s DNA was present. This
was due to the “overabundance of female DNA” also found on the samples.
Appellant testified in his own defense. He denied having sexually abused
C.R., and claimed that her allegations were “all fabricated.”
The trial court found appellant guilty of both indecency with a child and
sexual assault of a child and sentenced him to a total of fourteen years’ confinement
for the two offenses.
Standard of Review
Every criminal conviction must be supported by legally sufficient evidence as
to each element of the offense that the State is required to prove beyond a reasonable
doubt. See Jackson v. Virginia, 443 U.S. 307, 315 (1979); Adames v. State, 353
S.W.3d 854, 859 (Tex. Crim. App. 2011). To determine whether this standard has
been met, we review all of the evidence in the light most favorable to the verdict and
decide whether a rational factfinder could have found the essential elements of the
6
crime beyond a reasonable doubt. Jackson, 443 U.S. at 318–19; Brooks v. State, 323
S.W.3d 893, 901–02 (Tex. Crim. App. 2010).
It is presumed that the factfinder resolved any conflicting inferences in favor
of the verdict, and a reviewing court defers to that resolution. See Jackson, 443 U.S.
at 326; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). A reviewing
court also defers to the factfinder’s evaluation of the credibility and weight of the
evidence. See Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).
Sufficiency of the Evidence
In his sole issue, appellant contends the evidence was legally insufficient to
support his convictions for sexual assault of a child and indecency with a child.
Specifically, appellant argues the evidence is insufficient to establish that, (1) for
both sexual assault of a child and indecency with a child, the offenses occurred “on
or about” the dates alleged in the indictments and, (2) for indecency with a child,
there was penetration.
A. There is legally sufficient evidence of the date of the offenses
In his first argument, appellant contends the State failed to prove that the
alleged offenses occurred “on or about” the dates alleged in the respective
indictments. According to appellant, C.R.’s testimony “was devoid of any
specificity as to narrow sections of time, much less so anything as broad as the
year(s) when the alleged assaults took place.” Because this testimony was “so
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vague,” appellant argues it cannot qualify as legally sufficient evidence to support
his convictions. We disagree.
Regarding the offense of indecency with a child, the State alleged that the
offense occurred “on or about July 1, 2015,” when appellant “engage[d] in sexual
contact with C.R., a person younger than seventeen years of age, by touching the
genitals of C.R. with the intent to arouse and gratify [his] sexual desire.” And
regarding the offense of sexual assault of a child, the State alleged that the offense
occurred “on or about January 1, 2017,” when appellant “intentionally and
knowingly cause[d] the penetration of the sexual organ of C.R. . . . a person younger
than seventeen years of age, by placing his finger in the sexual organ of” C.R.
As the State points out, the State is not required to prove the specific date
alleged in the indictment. Unless the date is a material element of the offense, it is
not necessary for an indictment to specify the precise date on which the charged
offense occurred. See Garcia v. State, 981 S.W.2d 683, 685–86 (Tex. Crim. App.
1998). The primary purpose of specifying a date in the indictment is not to notify
the accused of the date of the offense, but instead to show that the prosecution is not
barred by the statute of limitations. Id. at 686. Therefore, “[i]t is well settled that the
‘on or about’ language of an indictment allows the State to prove a date other than
the one alleged in the indictment as long as the date is anterior to the presentment of
the indictment and within the statutory limitation period.” Sanchez v. State, 400
8
S.W.3d 595, 600 (Tex. Crim. App. 2013) (quoting Sledge v. State, 953 S.W.2d 253,
256 (Tex. Crim. App. 1997)).
Here, the indictments for indecency with a child and sexual assault of a child
were filed on October 16, 2017. There is no statutory limitations period for either
offense. See TEX. CODE CRIM. PROC. art. 12.01(1)(B) (no limitations for sexual
assault of child), (E) (no limitations for indecency with child). That means the State
could have obtained a conviction for conduct constituting indecency with a child and
sexual assault of a child that occurred any time before the date of the indictment on
October 16, 2017.
Moreover, significant evidence was introduced at trial that related to the dates
and timing of both of the charged offenses. With respect to the charge of indecency
with a child, alleged in the indictment to have occurred on or about July 1, 2015, the
State presented sufficient evidence that the offense occurred before the date of the
indictment and, more specifically, during the year 2015. Sarah Ball, the forensic
evaluation clinician at the Children’s Assessment Center, testified that C.R. told her
that appellant sexually abused C.R. multiple times. The first incident occurred
during the summer when C.R. was twelve years old at her aunt’s house where
appellant was living. According to Ball, C.R. disclosed that appellant entered the
bedroom where she was asleep and “touched her vagina underneath her clothing.”
C.R. likewise testified that appellant first abused her when she was twelve at his
9
sister’s house, where she said appellant put “his hands down my pants but above my
underwear.”
Though neither Ball nor C.R. testified to a specific year that this contact
occurred, both testified that it occurred when C.R. was twelve and Ball specifically
testified that C.R. told her she was abused during the summer. The State introduced
C.R.’s medical records, which indicated her date of birth is in November 2002.
Thus, she would have been twelve years old in the summer of 2015.
We conclude this evidence is legally sufficient to support the conclusion that
the indecency with a child occurred “on or about July 1, 2015,” and certainly before
the date of the indictment on October 16, 2017.2 See Sanchez, 400 S.W.3d at 600;
see also Sledge, 953 S.W.2d at 256 (holding that State could proceed on events that
occurred in 1986 and 1987, even though indictment alleged offenses occurred “on
or about August 31, 1988,” because dates of offenses proved were anterior to
presentation of indictment and within limitations period).
Likewise, with respect to the charge of sexual assault of a child, alleged in the
indictment to have occurred on or about January 1, 2017, the State presented
2
The State presented additional testimony from C.R. and Ball about two more
instances of abuse—during a camping trip and during a birthday party for
appellant’s nephew—that occurred in 2015 or 2016, when C.R. was either twelve
or thirteen. This testimony, like the testimony related to the first incident of abuse,
placed the date of the offense near the July 1, 2015 date alleged in the indictment,
and certainly before the date of the indictment.
10
sufficient evidence that the offense occurred before the date of the indictment and,
more specifically, on the date alleged. For example, though C.R. did not specify the
year, she testified that the assault occurred around 3:00 in the morning on January 1,
as she was coming home from a New Year’s Eve party with appellant. C.R. stated
that she had just turned fourteen years old. Based on her birthdate of
November 2002, C.R. would have been fourteen on January 1, 2017. In addition,
C.R.’s father testified that he received text messages from C.R. at about 4:30 a.m.
on January 1, 2017, asking him to come get her because appellant had touched her.
C.R.’s father confirmed that she was fourteen on January 1, 2017.
This date is further confirmed by C.R.’s medical records, which show that she
was admitted to the hospital for a sexual assault examination on January 1, 2017, as
well as Sergeant Donovan’s testimony that the sexual assault for which appellant
was charged occurred on January 1, 2017. We conclude this evidence is legally
sufficient to support that the sexual assault occurred “on or about January 1, 2017,”
and certainly before the date of the indictment on October 16, 2017. See Sanchez,
400 S.W.3d at 600; Sledge, 953 S.W.2d at 256.
Accordingly, we hold there is legally sufficient evidence of the dates of the
indecency with a child and the sexual assault of a child offenses.3
3
We note that the cases relied on by appellant in support of his argument are actually
supportive of our conclusion that there was legally sufficient evidence concerning
the dates of the offenses. For example, in Land v. State, the Texarkana Court of
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B. The State was not required to prove penetration for indecency with a
child
Appellant also contends that there was insufficient evidence of penetration.
Specifically, appellant argues that because “only the touching on New Year’s was
penetrative, the other count must be reversed and rendered.” Given that the sexual
assault of a child conviction was alleged to have occurred on New Year’s Day, we
construe appellant’s argument that the “other count must be reversed” as a challenge
to the sufficiency of the evidence of penetration to support his conviction for
indecency with a child.4
However, as noted by the State, penetration is only an element of the sexual
assault of a child offense, not of indecency with a child. A person commits sexual
Appeals held that the evidence was sufficient to show that the alleged sexual assault
occurred at or near the time period alleged in the indictment, acknowledging that
“‘on or about’ language is sufficient, so long as the act occurred before the date of
the presentation of the indictment, but within the relevant limitations period.” 291
S.W.3d 23, 27 (Tex. App.—Texarkana 2009, pet. ref’d). The Corpus Christi Court
of Appeals held similarly in Ketchum v. State, first noting that the “State could prove
that the charged offenses were committed before, on, or after the dates alleged in
the indictment so long as the dates were before the date of the indictment and within
the applicable limitation period” and concluding that the victim’s testimony that the
assaults occurred in 2003 placed the date of the offenses well within the applicable
limitations period. 199 S.W.3d 581, 589 (Tex. App.—Corpus Christi 2006, pet.
ref’d).
4
Because appellant admits there was evidence of penetration with respect to the
sexual assault of a child conviction, we do not construe his argument as challenging
the sufficiency of the evidence of penetration to support that conviction. He raises
no other challenges to the sufficiency of the evidence as to the elements of the
offense of sexual assault of a child.
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assault of a child if he “intentionally or knowingly . . . causes the penetration of the
anus or sexual organ of a child [i.e., a person younger than seventeen years of age]
by any means.” TEX. PENAL CODE § 22.011(a)(2)(A), (c)(1) (emphasis added).
In contrast, a person commits indecency with a child if he “engages in sexual
conduct with [a] child [younger than seventeen years of age].” Id. § 21.11(a)(1).
Sexual conduct in this context includes “any touching by a person, including
touching through clothing, of the anus, breast, or any part of the genitals of a child,”
if the touching is “committed with the intent to arouse or gratify the sexual desire of
any person.” Id. § 21.11(c)(1) (emphasis added). Indecency with a child thus
requires evidence of only touching. See id. § 21.11(a)(1), (c)(1); see also Sandoval
v. State, No. 14-16-00109-CR, 2017 WL 3090010, at *2 (Tex. App.—Houston [14th
Dist.] July 20, 2017, no pet.) (mem. op., not designated for publication) (noting that
key distinction between aggravated sexual assault and indecency with child is that
aggravated sexual assault requires penetration of child’s sexual organ while
indecency with child may be proved by mere touching of child’s genitals).
Because penetration is not an element of the offense of indecency with a child,
the State was not required to put on evidence of penetration in order to obtain a
conviction for that offense. We therefore reject appellant’s argument that his
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conviction for indecency with a child must be reversed because there was
insufficient evidence of penetration.5
Having found that there is legally sufficient evidence of the dates alleged for
appellant’s convictions for indecency with a child and sexual assault of a child and
that the State was not required to prove penetration for indecency with a child, we
overrule appellant’s sole issue.
Conclusion
We affirm the trial court’s judgment.
Terry Adams
Justice
Panel consists of Chief Justice Radack and Justices Hightower and Adams.
Do not publish. TEX. R. APP. P. 47.2(b).
5
Apart from his argument concerning penetration, appellant raises no other
challenges to the sufficiency of the evidence as to the elements of the offense of
indecency with a child.
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