Mireles v. State, 693-94

Citation901 S.W.2d 458
Decision Date24 May 1995
Docket NumberNo. 693-94,693-94
PartiesSantos MIRELES, Jr. v. The STATE of Texas, Appellee.
CourtCourt of Appeals of Texas. Court of Criminal Appeals of Texas

Errlinda Castillo, Corpus Christi, for appellant.

Carlos Valdez, Dist. Atty., and James D. Rosenkild, Asst. Dist. Atty., Corpus Christi, and Robert Huttash, State's Atty., Austin, for the State.

Before the Court en banc.



A Nueces County jury found appellant, Santos Mireles, Jr., guilty of indecency with a child under Texas Penal Code § 21.11(a)(1) (1990). The trial court assessed punishment at imprisonment for fifteen years. The Thirteenth Court of Appeals reversed appellant's conviction and ordered a judgment of acquittal. Mireles v. State, 878 S.W.2d 245 (Tex.App.--Corpus Christi 1994). We granted the State's petitions for discretionary review to determine whether the court of appeals' decision is consistent with our precedents. We will reverse.

The indictment alleged that appellant committed the charged offense "on or about December 15, 1990." The record established that appellant had numerous sexual contacts with the complainant (his niece) over a period of at least five years. The evidence did not establish specific dates on which these contacts took place.

The jury was instructed to return a verdict of guilty only if the evidence convinced it beyond a reasonable doubt that appellant committed the charged offense "on or about December 15, 1990." The jury charge did not further define the phrase "on or about." The jury found appellant guilty as charged in the indictment.

The court of appeals held that, absent an instruction defining the phrase "on or about," the jury was "left to consider only the ordinary, commonly understood meaning of the phrase 'on or about.' " Mireles at 247. " 'On or about December 15, 1990' would commonly be construed to mean that date or close in time to that date. 'About' is a flexible term, the meaning of which may vary with the circumstances in which it is used. 'About' a certain day, however, commonly means within a few days." Mireles at 247.

The court of appeals concluded that since the State did not prove that the charged offense occurred "on or about December 15, 1990," as that term is commonly understood, a reversal of appellant's conviction and entry of a judgment of acquittal were required. The court did acknowledge that the term "on or about" in an indictment means any time before the date of presentation of the indictment that falls within the applicable statute of limitations. The court concluded, however, that a lay jury could not be expected to know that the term "on or about" has this meaning, as it is a legal definition that is not commonly known.

The court of appeals' decision was incorrect. In Abston v. State, 158 Tex.Crim. 88, 253 S.W.2d 41 (App.1952), the defendant was charged with selling whiskey on three specific dates listed in the information. The jury charge instructed the jury to convict "upon a finding the offenses were committed 'on or about' the dates alleged." Abston, 253 S.W.2d at 42. The charge did not define the term "on or about." This Court held that, under such an "on or about" instruction, "the State may prove that an offense was committed before, on, or after the date alleged in the information, so long as the date is anterior to the presentment of the information and not barred by limitation." Abston, 253 S.W.2d at 42. We found similar "on or about" jury charges to be proper in Ellis v. State, 167 Tex.Crim. 87, 318 S.W.2d 655 (App.1958), and Scates v. State, 161 Tex.Crim. 114, 274 S.W.2d 833 (App.1955).

The court of appeals cited Ex parte Klasing, 738 S.W.2d 648 (Tex.Crim.App.1987), as authority for its holding in the instant case. Klasing was convicted by a jury of the offense of murder, and the jury assessed a life sentence. The jury found the allegations with respect to two prior felony convictions were true. The indictment alleged in one enhancement paragraph that he had been convicted of the felony of passing a forged instrument and was sentenced on September 17, 1962. The other enhancement paragraph alleged he had been convicted of felony possession of marihuana and was sentenced on April 8, 1970. Klasing pled "not true" to both enhancement paragraphs. The court of appeals found that, because the applicable statute of limitations in 1966 for possession of marihuana was three years and the "pen packet" concerning the marihuana conviction did not indicate the date of commission of the offense, it could presume that the marihuana offense was committed in 1963, after his prior felony conviction became final on September 17, 1962. (Klasing testified he was indicted for the marihuana charge in March or April of 1966.)

This Court held, however, that where the State relies on the indictment to prove the sequence of convictions for enhancement purposes and the jury is the factfinder, then the State must introduce some evidence that the jury used the statute of limitations in calculating the date of commission of the offense or offenses. Finding no such evidence, we set aside the judgment of conviction and remanded the cause for further proceedings.

The instant case is clearly unlike Klasing. In Klasing, the jury had no evidence as to when the marihuana offense was committed, so this Court held it could not presume that the offense was committed within the applicable statute of limitations period. In the present case, there was testimony from the complainant that appellant sexually abused her from 1985 through 1990 which is within the statute of limitations period. Complainant also testified that the abuse occurred during holidays and testified further that the last time she saw appellant was Christmas of 1990. A rational jury could conclude--absent any presumption concerning the statute of limitations--that December 25, 1990, is "on or about" December 15, 1990, and thus there was sufficient evidence for a rational jury to convict appellant for the commission of the offense charged "on or about" December 15, 1990. See Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

The court of appeals, in effect, concluded that, as a matter of law, the jury was bound to some "common sense" definition of what "on or about" means. It ignored the fact that the charge, despite its arguable ambiguity, did not prevent the jury from interpreting the term "on or about" in a manner consistent with its legal meaning, i.e. it permitted a conviction only if the jury found appellant guilty beyond a reasonable doubt of having committed the offense charged within the applicable statute of limitations period.

This Court, in Arcila v. State, 834 S.W.2d 357 (Tex.Cr.App.1992), held that the courts of appeals are the final arbiters of fact questions. In affirming the decision of the court of appeals in Arcila, this Court found "the lower court's analysis was more than adequate. Factors militating both in favor of and against a finding of voluntariness were set out side-by-side in its opinion. A thorough review of federal and state decisional law was included. In both respects, it appears that the court's assessment of the case was exemplary." Arcila at 360-361.

In the present case, the court of appeals did not address our rulings in Abston, Ellis, and Scates, which are in conflict with its holding. It also did not examine Boyde v. California, 494 U.S. 370, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990). In Boyde, the Supreme Court held that where a jury charge is arguably ambiguous, the reviewing court should use "common sense" in its analysis in determining if there is a "reasonable likelihood" that the jury was misled by the ambiguity.

The Court stated that an arguably ambiguous jury instruction should be examined as part of the entire context of the trial instead of in isolation. See Boyde at 380-383, 110 S.Ct. at 1198-1199. In the present case, the court of appeals did not do this; in fact, it chose to dismiss summarily evidence that the jury was told during voir dire and final argument (without objection by the defense) that "on or about" referred to the statute of limitations period. While arguments of counsel may not be given the same weight as instructions from the court and, if incorrect, are subject to correction by the court, juries are not required to ignore them. See Boyde at 384-385, 110 S.Ct. at 1200.

Arcila does not prevent us from reviewing the analysis of the court of appeals in the present case as that review cannot be said to be "thorough" as contemplated by this Court in Arcila. Additionally, the court of appeals has, in effect, announced a new rule of law--"on or about," in the absence of a specific jury instruction, refers to the days around a specific calendar date and not the applicable statute of limitations--and Arcila does not bar this Court from reviewing a court of appeals' creation of new law.

Finally, the court of appeals analogized the present case to Benson v. State, 661 S.W.2d 708 (Tex.Crim.App.1983) and Boozer v. State, 717 S.W.2d 608 (Tex.Crim.App.1984). In Boozer, this Court found that an erroneous jury instruction regarding corroboration of the testimony of an accomplice witness (no corroboration was required, as the witness was not an accomplice witness as a matter of law) still mandated a verdict of not guilty, as the jury, had it followed the instructions--though erroneous--was obligated to acquit the defendant. In Benson, this Court found the evidence at trial to be insufficient to show that appellant intended to "act in retaliation for or on account of the services of another as a witness." Benson at 711. The complainant was not a witness before an official proceeding--she was a potential witness against appellant in a pending assault case. Finding the evidence to be insufficient to show appellant possessed the requisite intent to act "in...

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