JULIO MALDONADO, JR., Appellant v. THE STATE OF TEXAS, Appellee

REVERSE and REMAND in part, AFFIRM in part, and Opinion filed November 14, 2006.
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-05-01386-CR
No. 05-05-01387-CR
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JULIO MALDONADO, JR., Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 283rd Judicial District Court
Dallas County, Texas
Trial Court Cause Nos. F04-3611-T and F04-3613-T
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OPINION
Before Justices Bridges, FitzGerald, and Lang
Opinion By Justice FitzGerald
        A jury convicted Julio Maldonado, Jr. of aggravated sexual assault of a child   See Footnote 1  and indecency with a child.   See Footnote 2  The jury assessed punishment at fifty years' confinement for the assault offense and twenty years' confinement for the indecency offense; the trial court ordered the sentences to be served consecutively. Maldonado raises five issues on appeal, challenging the trial court's refusal to award back-time credit, the legal and factual sufficiency of the evidence to support the jury's verdict, the amendment of the indictment in the indecency case, and the court's instruction regarding parole in the punishment charge. We remand the cause for calculation of back-time credit, but in all other respects we affirm the trial court's judgment.
Back-Time Credit
        In his first point of error, Maldonado complains that the trial court erroneously denied him back-time credit for the time he served while awaiting trial. Maldonado was on probation for a gang-related drive-by shooting when he was arrested for the two offenses appealed herein. These offenses were used as grounds for revocation of his probation. Once convicted, Maldonado was ordered to serve (1) his five-year sentence for the drive-by shooting, (2) then his fifty-year sentence for aggravated assault, and (3) then his twenty-year sentence for indecency with a child. The trial judge specifically ordered he was to receive no back-time credit.
        Maldonado contends he is entitled to receive time credited to both of his sexual-offense sentences for the time during which he was incarcerated after his arrest until he was sentenced. He
asks this Court to reform his judgment to reflect the back-time credit he is allegedly due, including credit applied to both of his stacked sentences. Maldonado relies on Ex parte Wickware, 853 S.W.2d 571 (Tex. Crim. App. 1993), which asserts that an inmate given stacked sentences is entitled to multiple credit for the periods he was simultaneously confined on more than one of those causes, prior to the stacking order. Id. at 573. “The pre-sentence credit applies to each of these sentences, and since the sentences are sequentially executed, the credit must also be separately awarded.” Id. (footnote omitted). We agree Maldonado is entitled to credit for his time served and that the credit should be applied to both cases for which he was incarcerated at the time.
        The State does not challenge Maldonado's legal arguments or his entitlement to back-time credit. Instead it says we should not address this complaint because we do not have the record necessary to calculate the proper credit. Our review of the record yields the date of sentencing, but not the date of Maldonado's arrest or the initial date of his confinement. Without that information, we cannot calculate the amount of back-time due Maldonado. Accordingly, we reverse the portion of the judgment awarding no time credited to Maldonado's sentence, and we remand this cause to the trial court for proper calculation of the credit to which he is entitled for time served.
        We grant Maldonado's first point of error.
Factual Sufficiency of the Evidence
        In his second and third points of error, Maldonado challenges the factual sufficiency of the evidence supporting the jury's verdict on both offenses. The jury found Maldonado guilty of aggravated sexual assault of a child and indecency with a child. The complaining witness (the “Child”) was eight years old at the time of trial. The Child is not Maldonado's daughter, but her mother (the “Mother”) lived with Maldonado for a number of years after the Child was born, and Maldonado and Mother subsequently had three children together.
        Maldonado lists identical insufficiency arguments for the two offenses: he and Mother had a stormy relationship, punctuated by break-ups and disputes over custody of their children; Mother reported to CPS that a second child was being abused by Maldonado, but at trial that child testified that was not true; and Mother, for a time, recanted her own allegations concerning Maldonado's abuse of the Child. Maldonado suggests Mother encouraged the Child to lie and that the arguments he lists are reasons not to believe the Child's testimony accusing him.
        In a factual sufficiency review we view all of the evidence in a neutral light, and we determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Watson v. State, --- S.W.3d ---, 2006 WL 2956272, *8 (Tex. Oct. 18, 2006). Resolution of conflicts in the evidence and credibility of witnesses lies within the factfinder's exclusive province. Obigbo v. State, 6 S.W.3d 299, 305 (Tex. App.-Dallas 1999, no pet.).         The Child testified directly concerning both Maldonado's touching her genitals with his hand (the indecency charge) and his digital penetration of her vagina (the assault charge). She testified this conduct had occurred for as long as she could remember. Her grandfather testified to the Child's outcry on the indecency charge. Evidence of her allegations was also presented through the videotaped interview given at the Children's Advocacy Center, which included the Child's outcry on the assault charge. Expert testimony concerning the physical examination of the Child was not inconsistent with her allegations, although the examination did not prove abuse conclusively.   See Footnote 3 
        As to evidence contrary to the verdict, Maldonado testified and denied any sexual contact with the Child. He testified that he and Mother argued a lot and broke up three or four times. He believed Mother told the Child to make up these allegations because they were going through a custody battle at the time. Mother did admit she had signed a letter addressed to the police and to CPS; the letter stated she had made the allegation that Maldonado had abused the Child when she was angry with him, and that the allegation was “completely unfounded.”   See Footnote 4  Finally, the oldest of Maldonado and Mother's children, a six-year-old daughter, testified that Mother had encouraged her to make an allegation of abuse by Maldonado, but that she had refused because it was not true.         In the end, the jury determined which witnesses were credible and which were not. Indeed, the parties' closing arguments were almost entirely devoted to persuading the jury why the Child should - or should not - be believed. Issues of credibility belong exclusively to the factfinder. Obigbo, 6 S.W.3d at 305. Given the record before us, we conclude ample evidence supports the jury's finding of guilt beyond a reasonable doubt in this case. See Watson at *8.         We decide Maldonado's second and third points of error against him.
Amending the Indictment
        In his fourth point of error, Maldonado complains that the trial court erroneously allowed the State to amend the indecency-with-a-child indictment during trial. The issue arose as the State rested its case in chief. Maldonado requested that the State had failed to prove the allegation with intent to arouse and gratify the sexual desire of the defendant. The State sought permission to abandon the indictment's language concerning that specific intent. Maldonado objected that this was an inappropriate amendment of the indictment. On appeal, Maldonado argues:
 
The amendment to the indictment was not proper because 1) it was made after the trial had commenced 2) Appellant did not have prior notice of the amendment and 3) he was not given an additional ten days to prepare. Tex. Code Crim. Pro. Ann. art. 28.10(c). The substantial rights of the Appellant were prejudiced. Consequently, this case should be reversed and remanded for a new trial.
 
        As it was filed, the indecency-with-a-child indictment alleged, in relevant part, that Maldonado did:
 
engage in sexual contact with [Child] . . . by contact between the hand of the defendant and the genitals of [Child], with the intent to arouse and gratify the sexual desire of the defendant.
 
The State argues its action did not amount to an amendment, because it did not change the indictment, but merely removed surplus language found therein. The State points out on appeal that the indictment contains a charge of “sexual contact,” which in this offense, includes by definition “intent to arouse or gratify the sexual desire of any person.” See Tex. Pen. Code Ann. § 21.11(c) (Vernon 2003). Thus, the original indictment's use of that specific-intent language was redundant, and the language was mere surplusage. See Hall v. State, 62 S.W.3d 918, 919 (Tex. App.-Dallas 2001, pet. ref'd) (defining surplusage as “unnecessary words or allegations in an indictment that are not descriptive of what is legally essential to constitute the offense”).         Because the original indictment charged Maldonado with engaging in “sexual contact,” the charge already included the necessary element of “intent to arouse or gratify the sexual desire of any person.” Accordingly, we overrule Maldonado's contention that the trial court erred in allowing the State to amend the indictment. See id. at 920.
Instruction Regarding Parole in Punishment Charge
        In his fifth point of error, Maldonado argues the trial court incorrectly instructed the jury on the issue of parole in the punishment charge. Maldonado argues that, although this instruction is mandated by the code of criminal procedure, the charge is erroneous because he is not eligible for mandatory supervision, and thus the instruction does not apply to him. See Tex. Code Crim. Pro. Ann. art. 37.07 (Vernon Supp. 2006). Thus, he argues, the erroneous charge violated his due process rights. Maldonado acknowledges that the court of criminal appeals specifically held in Luquis v. State, 72 S.W.3d 355 (Tex. Crim. App. 2002), that a trial judge does not commit error when he instructs the jury, as required, on the availability of good conduct time, even if the defendant is ineligible for a reduction of time. Id. at 363. That court concluded:
 
Thus, while the jury may consider the existence of parole and good conduct time, it may not consider how good conduct time or the parole law may be applied to appellant. . . . We assume that the jury followed the instructions as given . . . and, under Supreme Court precedent, we will not find federal constitutional error unless we conclude that a reasonable jury probably was actually confused by this charge.
 
Id. at 366-67 (footnotes omitted; emphasis added). Maldonado relies on the emphasized final portion of this quote. He argues that, in his case, “a reasonable jury probably was actually confused by this charge.”
        But Maldonado points to no evidence supporting a finding of confusion on the part of the jury. Nothing in the record shows the jury discussed, considered, or tried to apply what they were told about good conduct time. See id. at 367. The record includes no notes from the jurors indicating they were confused concerning the application of good conduct in this case. See id. In the absence of any evidence supporting his allegation, we conclude Maldonado has failed to carry his burden “to demonstrate that there is a reasonable likelihood that this jury unconstitutionally misapplied the concept of 'good conduct time' to assess a higher sentence as a result of the instruction, thereby denying appellant due process or due course of law.” See id. at 368; see also Gallegos v. State, 76 S.W.3d 224, 228-29 (Tex. App.-Dallas 2002, pet. ref'd).
        We overrule Maldonado's fifth point of error.
Conclusion
        We have resolved Maldonado's second through fifth points against him. We reverse the judgment insofar as it awards no time credited to Maldonado's sentence for time served, and we remand the case for the sole purpose of calculating the back-time credit due him. In all other respects, the judgment of the trial court is affirmed.
 
 
                                                          
                                                          KERRY P. FITZGERALD
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 47
051386f.u05
 
Footnote 1 This offense forms the basis of trial cause number F04-36311-T and appellate cause number 05-05-01386-CR.
Footnote 2 This offense forms the basis of trial cause number F04-36313-T and appellate cause number 05-05-01387-CR.
Footnote 3 Dr. Dawn Johnson performed the examination of the Child. She testified the Child's hymen was irregular, which was not normal for her age. The condition was consistent with a traumatic injury more than three days earlier. Dr. Johnson categorized her findings as “nonspecific.” This kind of abnormally-shaped hymen is most often caused by trauma, but the doctor could not say to a medical certainty that the Child had been abused.
Footnote 4 Mother testified at trial that she had been persuaded to sign the letter because she was persuaded - during one of their reconciliations - that Maldonado had not committed the abuse.