Rodriguez v. State, No. 13-02-113-CR (TX 5/13/2004)
| Decision Date | 13 May 2004 |
| Docket Number | No. 13-02-113-CR,13-02-113-CR |
| Parties | DAVID RODRIGUEZ, Appellant, v. THE STATE OF TEXAS, Appellee. |
| Court | Texas Supreme Court |
DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On appeal from the 103rd District Court, of Cameron County, Texas.
Before Justices HINOJOSA, YAÑEZ, and CASTILLO.
A jury convicted appellant David Rodriguez in absentia of two counts of indecency with a child1 and two counts of aggravated sexual assault.2 It rejected any recommendation for community supervision and assessed punishment at two years in prison and a $2,000 fine for each count of indecency with a child and five years and a $5,000 fine for each count of aggravated sexual assault. The trial court signed a judgment consistent with the jury's verdict and ordered the sentences to run consecutively. It sentenced Rodriguez to a total of fourteen years confinement in the Institutional Division of the Texas Department of Criminal Justice.3 The trial court has certified that Rodriguez has the right to appeal. See Tex. R. App. P. 25.2(a)(2). By six issues, Rodriguez challenges the legal and factual sufficiency of the evidence and certain evidentiary rulings by the trial court. We affirm.
This is a memorandum opinion not designated for publication. The parties are familiar with the facts. We will not recite them here except as necessary to advise the parties of our decision and the basic reasons for it. See Tex. R. App. P. 47.4.
J.G. is Rodriguez's stepdaughter. She was born April 16, 1986. Rodriguez began living with J.G.'s mother and four children when J.G. was seven years old. The family lived in Florida for a few months, then returned to Brownsville, Cameron County, Texas. They were living in Brownsville in 1999 when J.G. first accused Rodriguez of molesting her. The Texas Department of Protective and Regulatory Services ("DPRS") investigated J.G.'s allegations against her stepfather in March of 1999. The DPRS took no action at that time. The family moved back to Florida. J.G. repeated her allegations to authorities there. An investigation began in Florida. The family returned to Texas the day before a scheduled court date in the matter.
Back in Texas, J.G. contacted DPRS again. A second investigation began in April of 2000. DPRS again took no action. A report of the Florida investigation reached the authorities in Texas. In November of 2000, DPRS began a third investigation. This time, J.G.'s mother was arrested for child endangerment. A Cameron County grand jury indicted Rodriguez on two counts of indecency with a child and two counts of aggravated sexual assault.
J.G., 14 years old by the time of trial, described for the jury years of almost daily sexual contact4 and multiple acts of sexual conduct5 by Rodriguez. She testified that the contacts and conduct took place in Cameron County, Texas from the time she was seven years old until the family moved to Florida briefly in the middle of October 1999. Outcry witnesses testified to the complaints J.G. made. During Rodriguez's defense, family members testified to inconsistent or contradictory statements made by the child, including her denial that Rodriguez had ever touched her. Her mother testified she did not believe her daughter.
During a break following the mother's testimony, Rodriguez left the courtroom. He did not return. Testimony continued in his absence, then concluded. The trial court charged the jury in his absence. The jury deliberated and delivered the verdict. After return of the verdict, Rodriguez surrendered himself for sentencing. The trial court exercised its discretion and ordered the sentences assessed by the jury to run consecutively. See Tex. Pen. Code Ann. § 3.03(b)(2)(A) (Vernon 2003). This appeal ensued.
A. Legal-Sufficiency Analyses
A legal-sufficiency challenge calls for appellate review of the relevant evidence in the light most favorable to the prosecution. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Swearingen v. State, 101 S.W.3d 89, 95 (Tex. Crim. App. 2003); Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). We consider all the evidence that sustains the conviction, whether properly or improperly admitted or whether introduced by the prosecution or the defense, in determining the legal sufficiency of the evidence. Conner v. State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001). Similarly, in reviewing the legal sufficiency of the evidence, we look to all of the evidence introduced during either stage of the trial. De Garmo v. State, 691 S.W.2d 657, 661 (Tex. Crim. App. 1985).
Legal sufficiency in this case is measured against the elements of the offense as defined by a hypothetically correct jury charge for the case. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). A hypothetically correct jury charge is one that "accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried." Id. A hypothetically correct jury charge would not simply quote from the controlling statute. Gollihar v. State, 46 S.W.3d 243, 254 (Tex. Crim. App. 2001). Its scope is limited by "the statutory elements of the offense . . . as modified by the charging instrument." Fuller v. State, 73 S.W.3d 250, 254 (Tex. Crim. App. 2002) (Keller, P.J., concurring) (quoting Curry v. State, 30 S.W.3d 394, 404 (Tex. Crim. App. 2000)). When a statute lists more than one method of committing an offense, and the indictment alleges some, but not all, of the statutorily listed methods, the State is limited to the methods alleged. Fuller, 73 S.W.3d at 255; Curry, 30 S.W.3d at 404. This standard of legal sufficiency ensures that a judgment of acquittal is reserved for those situations in which there is an actual failure in the State's proof of the crime. Malik, 953 S.W.2d at 240. We then determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson, 443 U.S. at 319; Johnson, 23 S.W.3d at 7.
In performing a legal-sufficiency review, we are mindful that the fact finder is the exclusive judge of the credibility of witnesses and the weight to be given testimony. Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Adelman v. State, 828 S.W.2d 418, 423 (Tex. Crim. App. 1992); Butts v. State, 835 S.W.2d 147, 151 (Tex. App.—Corpus Christi 1992, pet. ref'd). The fact finder may believe some witnesses and refuse to believe others. Esquivel v. State, 506 S.W.2d 613, 615 (Tex. Crim. App. 1974). It also may accept portions of a witness's testimony and reject others. Id.; Butts, 835 S.W.2d at 151.
If we reverse a criminal case for legal insufficiency following a jury trial, we reform the judgment to reflect conviction for a lesser offense only if: (1) we find that the evidence is sufficient to support conviction of the lesser offense; and (2) a jury charge on the lesser offense was either submitted or requested but denied. Collier v. State, 999 S.W.2d 779, 782 (Tex. Crim. App. 1999) (plurality op.) (); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993) (clarifying same). Otherwise, we vacate the judgment of conviction for legal insufficiency and order a judgment of acquittal. Swearingen, 101 S.W.3d at 95.
(1) Counts I and IV of the Indictment
The statutory period of limitation for indecency with a child is ten years from the child's eighteenth birthday. Tex. Code Crim. Proc. Ann. art. 12.01(5)(A) (Vernon 2003). Count I of the indictment alleged that Rodriguez intentionally or knowingly engaged in sexual contact with J.G., a child younger than 17 years and not his spouse, in Brownsville, Cameron County, Texas on or about October 23, 1999 by touching her breast with his mouth. Count IV alleged that Rodriguez engaged in the same contact in the same jurisdiction on or about September 15, 1999.
(2) "On or About" Allegation of Date of Offense
Unless the date is a material element of an 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. Id. Rather, the purpose of providing a date is to show that the prosecution is not barred by the statute of limitation. Id. When an indictment alleges that a crime occurred "on or about" a certain date, the State may prove an offense "with a date other than the one specifically alleged so long as the date is anterior to the presentment of the indictment and within the statutory limitation period and the offense relied upon otherwise meets the description of the offense contained in the indictment." Yzaguirre v. State, 957 S.W.2d 38, 39 (Tex. Crim. App. 1997) (quoting Sledge v. State, 953 S.W.2d 253, 256-57 (Tex. Crim. App. 1997)). Accordingly, the hypothetically correct jury charge in this case would instruct the jury 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. Mireles v. State, 901 S.W.2d 458, 459 (Tex. Crim. App. 1995) (plurality op.); DeMoss v. State, 12 S.W.3d 553, 560 (Tex. App.—San Antonio 1999, pet. ref'd).6
(3) The Elements of Indecency with a Child as Limited by the Indictment
Thus, the...
To continue reading
Request your trial