Richard Ontiveros Flores v. The State of Texas--Appeal from 42nd District Court of Taylor County

Opinion filed March 29, 2007

In The

Eleventh Court of Appeals

__________

   No. 11-05-00223-CR

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  RICHARD ONTIVEROS FLORES, Appellant

V.

STATE OF TEXAS, Appellee

On Appeal from the 42nd District Court

Taylor County, Texas

Trial Court Cause No. 21,576-A

O P I N I O N

The jury convicted Richard Ontiveros Flores of the aggravated sexual assault[1] of his stepdaughter and two offenses of indecency with a child[2] with the same stepdaughter. The jury assessed his punishment at confinement for fifteen years for the aggravated sexual assault[3] and at confinement for four years for each of the indecency offenses.[4] We affirm.

Issues on Appeal

Appellant has briefed eight issues on appeal. In the first three, appellant challenges the legal sufficiency of the evidence to support the convictions. In the next three, appellant challenges the factual sufficiency of the evidence to support the convictions. In the seventh and eighth issues, appellant contends that the trial court abused its discretion in admitting evidence of extraneous sexual contact with his stepdaughter and in admitting evidence of a videotape.

Sufficiency of the Evidence

A. Standard of Review.

In order to determine if the evidence is legally sufficient, the appellate court reviews all of the evidence in the light most favorable to the verdict and determines whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Jacksonv. State, 17 S.W.3d 664, 667 (Tex. Crim. App. 2000). To determine if the evidence is factually sufficient, the appellate court reviews all of the evidence in a neutral light. Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006) (overruling in part Zuniga v. State, 144 S.W.3d 477 (Tex. Crim. App. 2004)); Johnson v. State, 23 S.W.3d 1, 10-11 (Tex. Crim. App. 2000); Cain v. State, 958 S.W.2d 404, 407-08 (Tex. Crim. App. 1997); Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). Then, the reviewing court determines whether the evidence supporting the verdict is so weak that the verdict is clearly wrong and manifestly unjust or whether the verdict is against the great weight and preponderance of the conflicting evidence. Watson, 204 S.W.3d at 414-15; Johnson, 23 S.W.3d at 10-11.

We review the fact-finder=s weighing of the evidence and cannot substitute our judgment for that of the fact-finder. Cain, 958 S.W.2d at 407; Clewis, 922 S.W.2d at 133. Due deference must be given to the fact-finder=s determination, particularly concerning the weight and credibility of the evidence. Johnson, 23 S.W.3d at 10-11; Jones v. State, 944 S.W.2d 642 (Tex. Crim. App. 1996). The jury, as the finder of fact, is the sole judge of the weight and credibility of the witnesses= testimony. Tex. Code Crim. Proc. Ann. art. 36.13 (Vernon 2007), art. 38.04 (Vernon 1979). This court has the authority to disagree with the fact finder=s determination Aonly when the record clearly indicates such a step is necessary to arrest the occurrence of a manifest injustice.@ Johnson, 23 S.W.3d at 9.

B. Record on Appeal.

The victim testified that, until the police investigated these offenses, she believed appellant was her natural father and was unaware that he was really her stepfather. The victim stated that the family lived in Abilene in Taylor County until July 2003 when they moved to Georgetown in Williamson County. She was twelve years old at the time of the move.

The victim stated that appellant Astarted coming after@ her at night when she was eleven years old and in the sixth grade. Her mother was attending night school at the time, and appellant would watch the couple=s younger children. Appellant had a pornographic videotape that he would play Aquite often@ for the victim. The videotape depicted two females and one male Ajust taking turns at each other having sex.@ The victim stated that appellant played this videotape while the family lived in Abilene before their move to Georgetown.

The victim testified that she would tell appellant to turn off the videotape but that he would not. Appellant would make her lay down beside him on the couch, and then he would Astick his fingers in@ her vagina. Appellant also rubbed her breasts and her vaginal area.

Dolores Flores, the victim=s mother, testified that the victim was two years old when appellant first came into their lives and that the victim was raised to believe appellant was her biological father. The family moved to Georgetown in July 2003. Dolores testified that appellant kept the children while she was attending night classes during the summer before the move. She also testified that the couple had a pornographic videotape they would watch together from time to time. The videotape was something that just she and appellant watched and that it was Anot a family thing.@ Dolores testified that she did not know the victim had seen the videotape until the victim accurately described the contents to her when the victim told her about the sexual contact.

Appellant testified that the victim was raised to believe that he was her natural father. Appellant stated that the victim began to sneak out of the house after the family moved to Georgetown. Appellant testified that he had never engaged in any sort of sexual activity with the victim. He testified that the videotape was kept Away behind the VCR on the top shelf of the entertainment center.@

C. Specific Argument on Appeal.

The multi-count indictment alleged that, Aon or about the 31st day of August, 2003@ in Taylor County, appellant penetrated the victim=s sexual organ with his finger, touched her genitals, and touched her breasts. In his first six issues on appeal, appellant argues that the record establishes that the family moved from Taylor County to Williamson County in July 2003 and that they did not live in Taylor County on August 31, 2003. Therefore, appellant argues that the evidence is both legally and factually insufficient to support convictions for offenses alleged to have been committed at a time when no one in the family lived in Taylor County.

D. Applicable Law Concerning Date Alleged in the Indictment.

The Court of Criminal Appeals has stated that, particularly in cases involving sexual offenses against child victims, a conviction will stand when the indictment alleges the offense occurred Aon or before@ a specific date and the State establishes that an offense occurred before the specific date and within the statutory limitations period. Yzaguirre v. State, 957 S.W.2d 38, 39(Tex. Crim. App. 1997); Sledge v. State, 953 S.W.2d 253, 255-56 (Tex. Crim. App. 1997); see Dixonv. State, 201 S.W.3d 731, 736 (Tex. Crim. App. 2006).

E. Analysis.

It is uncontroverted that the family did not live in Abilene on August 31, 2003, and that they moved from Taylor County in July 2003. The victim testified that the sexual activity occurred in Taylor County before the family moved and during the time appellant was watching the children while her mother was at night classes. The mother testified that, before the family moved in July 2003, appellant watched the children while she attended night school that summer.

The evidence is both legally and factually sufficient. When viewed in the light most favorable to the verdict, the evidence is legally sufficient for a reasonable jury to conclude that appellant committed the offenses of aggravated sexual assault and indecency with the victim in the summer of 2003 in Taylor County. Likewise, when the evidence is viewed in a neutral light, the evidence supporting the jury=s verdicts is not so weak as to establish that the verdicts are clearly wrong, manifestly unjust, or against the great weight and preponderance of the evidence. The State established that the sexual contact occurred within the limitations period. Tex. Code Crim. Proc. Ann. art. 12.01 (Vernon Supp. 2006). The first six issues are overruled.

Admission of Extraneous Offenses and of the Pornographic Videotape

A. Specific Arguments on Appeal.

In his final two issues, appellant contends that the trial court abused its discretion in admitting the victim=s testimony concerning repeated sexual contact by appellant, in admitting testimony concerning appellant showing the victim the videotape, and in admitting the videotape. Appellant argues that this evidence was inadmissible due to lack of sufficient written notice from the State.

B. Record on Appeal.

Relying on Tex. R. Evid. 404(b) and Tex. Code Crim. Proc. Ann. art. 37.07, ' 3(g) (Vernon 2006), appellant filed on June 2, 2005, a notice regarding disclosure of extraneous offense evidence requesting that the State disclose any evidence of crimes, wrongs, or acts that it intended to offer either in its case-in-chief or at the punishment phase. The trial court entered a discovery order on June 7, 2005, providing that appellant was entitled to view any videotapes relating to his case, to inspect any real evidence, and to written notice of all extraneous offenses or bad acts that the State intended to offer. The State responded by filing a response on June 14, 2005, stating that a copy of Athe pornographic video@ had been made for the defense, that all physical evidence was located with the Abilene Police Department and was available for review, and that the State planned to introduce evidence of A[n]one other than the numerous times that the suspect engaged in sexual contact with the victim throughout a two year period in both Abilene, Taylor County, and Georgetown, Williamson County, Texas.@

At trial on June 27, 2005, appellant objected to the admission of both the testimony and the videotape on the grounds that Athere [was] nothing telling [him] that they would intend to offer such extraneous offense evidence of other alleged sexual contacts@ and that the State=s response was inadequate concerning the videotape. Appellant further stated that he was not relying on Tex. Code Crim. Proc. Ann. art. 38.37 (Vernon Supp. 2006) but solely on Article 37.07, section 3(g) and Rule 404(b).

C. Prior Sexual Contact Between Appellant and the Victim.

The victim testified that, in the summer of 2003 when she was twelve years old, appellant inserted his finger in her vagina, touched her breasts, and touched her genitals. She also testified that appellant began this type of sexual contact when she was eleven years old.

Rule 404(b) and Article 37.07, section 3(g) provide that, upon timely request, the State must give reasonable notice of Aother crimes, wrongs, or bad acts@ that it intends to introduce. Both appellant=s request and the State=s response were timely. Under the facts in this case, the State=s response was sufficient to comply with the notice requirements of Rule 404(b) and Article 37.07, section 3(g). The seventh issue is overruled.

D. Videotape.

The victim testified that appellant Astarted coming after her@ when she was eleven years old. She described how appellant would touch her breasts and genitals and how he would insert his fingers in her vagina. The victim further testified how, during the commission of the acts alleged in the indictment, appellant touched her breasts and genitals and inserted his fingers in her vagina. The victim stated that appellant showed her the videotape not only during the commission of the charged offenses but also during the prior acts of sexual contact.

The videotape itself and the testimony concerning its use during the charged offenses was properly admitted. However, there was no disclosure of the prior act of playing the videotape during other sexual encounters with the victim, and appellant did not receive notice of the bad act of showing the videotape to the victim. This error is subject to a harm analysis. McDonald v. State, 179 S.W.3d 571, 578 (Tex. Crim. App. 2005).

After examining the entire record, we conclude that, under Tex. R. App. P. 44.2(b), the error concerning the playing of the videotape prior to the charged offenses was harmless and had but a slight effect, if any, on the jury. The victim testified unequivocally concerning sexual contact between appellant and her. For all three offenses, the jury assessed punishment toward the minimum of the punishment range: confinement for fifteen years out of a possible maximum of confinement for life or ninety-nine years for the aggravated sexual assault and confinement for four years out of a maximum of confinement for twenty years for the indecency with a child offenses. The record before this court does not support appellant=s argument that testimony concerning viewing of the videotape in conjunction with prior sexual contact contributed to the convictions or assessment of punishment. The eighth issue is overruled.

This Court=s Ruling

The judgment of the trial court is affirmed.

TERRY McCALL

JUSTICE

March 29, 2007

Do not publish. See Tex. R. App. P. 47.2(b).

Panel consists of: Wright, C.J.,

McCall, J., and Strange, J.

[1]Tex. Pen. code Ann. ' 22.021 (Vernon Supp. 2006) defines the offense and declares it to be a felony of the first degree.

[2]Tex. Pen. Code Ann. ' 21.11 (Vernon 2003) defines the offense and declares it to be a felony of the second degree.

[3]The range of punishment for a first degree felony is confinement for life or a term of not more than 99 years and not less than 5 years and an optional fine not to exceed $10,000. Tex. Pen. Code Ann. ' 12.32 (Vernon 2003).

[4]The range of punishment for a second degree felony is confinement for a term of not more than twenty years and not less than two years and an optional fine not to exceed $10,000. Tex. Pen. Code Ann. ' 12.33 (Vernon 2003).