Fernando De Leon v. The State of Texas--Appeal from 175th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-06-00649-CR
Fernando DE LEON,
Appellant
v.

The STATE of Texas,

Appellee

 
From the 175th Judicial District Court, Bexar County, Texas
Trial Court No. 2004-CR-9228
Honorable Mary Roman, Judge Presiding

Opinion by: Phylis J. Speedlin, Justice

 

Sitting: Alma L. L pez, Chief Justice

Catherine Stone, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: May 16, 2007

 

AFFIRMED

A jury found Fernando De Leon guilty of aggravated sexual assault of a child and sentenced him to eight years imprisonment. On appeal, De Leon argues the evidence was legally and factually insufficient to support his conviction, a fatal variance exists between the date alleged in the indictment and the proof presented at trial, and the prosecutor engaged in improper jury argument. We affirm the judgment of the trial court.

Background

On October 18, 2003, J.C. and her brother spent the night at the home of Maria Herrera-Lucio, a friend of J.C.'s mother, Carolyn Contreras. Herrera-Lucio awoke in the middle of the night to find J.C., an eight year-old female, moaning and fondling herself in the vaginal area over her clothing. Herrera-Lucio awakened J.C. to send her to use the bathroom, as J.C. had a history of bed-wetting. The following morning, Herrera-Lucio relayed the events of the previous night to Ms. Contreras, and with her permission, Herrera-Lucio spoke to J.C. in the presence of Contreras and her boyfriend, Fernando De Leon. Herrera-Lucio told J.C. what she had seen her doing and asked if anyone had hurt her or touched her inappropriately; she answered, "no." De Leon then left the room and, upon further questioning, J.C. said De Leon had fondled her over her clothing. J.C.'s mother began to cry and Herrera-Lucio said she would call the police and have De Leon arrested, at which point J.C. recanted her story. At the time, J.C. was living in a trailer with her mother, brother, and De Leon. J.C. stated at trial that she recanted because she was afraid that she would be taken away from her mother.

On November 4, 2003, an investigator from Child Protective Services ("CPS") interviewed J.C. at school with Contreras' permission. Lynn Sokolowski, the CPS investigator, subsequently interviewed De Leon and Contreras at their home, and implemented a safety plan whereby De Leon would have no contact with J.C. pending further investigation. Contreras and the two children left the home for a short period of time, but later moved back in. A CPS caseworker subsequently found De Leon present in the home with Contreras and the children in violation of the safety plan. On November 19, 2003, at the request of CPS, Dr. Nancy Kellogg conducted a sexual assault examination of J.C. at the Alamo Children's Advocacy Center. The physical exam was normal. During the medical history portion of the exam, J.C. told Dr. Kellogg that De Leon had touched her vaginal area under her panties and put his fingers "in" her on one occasion. De Leon was subsequently charged with aggravated sexual assault of a child and indecency with a child that occurred "on or about" October 31, 2003. De Leon pled "not guilty" to the charges. A jury found him guilty of aggravated sexual assault of a child. De Leon timely appealed.

Analysis

Legal and Factual Sufficiency

 

In his first two issues, De Leon claims (1) the evidence is legally and factually insufficient to support the jury's finding that he committed aggravated sexual assault of J.C. because the evidence showed the offense did not occur on or about the particular date, October 31, 2003, alleged in the indictment, and (2) the evidence is factually insufficient to prove intentional or knowing penetration of the child's sexual organ. We review the sufficiency of evidence under the appropriate standards of review. See Jackson v. Virginia, 443 U.S. 307, 319 (1979) (legal sufficiency); Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex. Crim. App. 2005) (same); Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006) (factual sufficiency); Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000) (same).

At trial, J.C., then eleven years old, testified that on one occasion she awoke to find De Leon touching her "cookie" with his finger. J.C. described her "cookie" as her private part with which she "uses number one," "to pee." The prosecutor asked whether De Leon's finger "stay[ed] outside your cookie or did it go inside your cookie?" J.C. answered that it went "inside." She stated that it made her feel uncomfortable, and "sort of" hurt. J.C. testified that she did not tell anyone right away because she was scared that she would be taken away from her mom. Later, she told Herrera-Lucio that De Leon had touched her over her clothes; she admitted that she "might have" later said that it did not happen because she did not want to be taken away from her mom. She did not remember how old she was, or what month the incident occurred, nor did she remember it happening on Halloween.

The outcry witness, Herrera-Lucio, testified that she babysat J.C. and her brother on or about October 18, 2003, and observed J.C. moaning and fondling herself "in her vaginal area" while asleep. The next morning, upon being asked if anyone had been hurting or touching her, J.C. told her that De Leon had "fondled her over her clothing in the vaginal area." When J.C. learned the police would be called, she recanted the allegation. Sokolowski testified that J.C. told her the same information that she told Herrera-Lucio, and she made a finding of "reason to believe" that J.C. had been sexually abused. On November 4, 2003, Sokolowski implemented a family safety plan which required J.C. to have no contact with De Leon.

Dr. Kellogg testified that the physical exam yielded "normal" results; however, Dr. Kellogg went on to say that "the majority of exams in sexually abused children are normal or non-specific regardless of the time of the sexual act." Dr. Kellogg read her medical evaluation of J.C., which stated that J.C. told Dr. Kellogg that De Leon had put his finger inside her. In addition to her testimony regarding the medical examination of J.C., Dr. Kellogg also testified about medical literature addressing reasons that child victims of sexual assault recant allegations of sexual abuse. Based on this literature, Dr. Kellogg said it is more common for a child to recant an accusation of abuse against a relative than a non-relative, and the biggest reason a child recants is fear of what will happen to the child or the person against whom the accusation is made. Other evidence showed that J.C.'s mother continued her relationship with De Leon, and her parental rights to J.C. have been terminated.

Finally, De Leon testified that he and Contreras and her children moved into a trailer home together in October 2003. He worked nights as a security guard, and would sometimes take the children to school in the mornings after Contreras had gone to work. De Leon testified that he never touched J.C. inappropriately, underneath or over her clothes, and, specifically did not touch her in the vaginal area. He further stated that he was never alone with J.C. and her brother in the trailer.

De Leon first asserts that because the trial evidence showed that the incident, if any, occurred prior to the outcry on October 18, 2003, and not "on or about October 31, 2003" as alleged in the indictment, the evidence is legally and factually insufficient to support his conviction. De Leon acknowledges the well established law that when an indictment alleges an offense occurred "on or about" a particular date, the State is not bound by the date alleged, and may prove commission of the alleged offense on a different date as long as the date is anterior to the presentment of the indictment, and is within the applicable statute of limitations. See Tex. Code Crim. Proc. Ann. art. 21.02(6) (Vernon 1989); Wright v. State, 28 S.W.3d 526, 532 (Tex. Crim. App. 2000).

Here, the evidence was undisputed that the indictment was presented on December 21, 2004, and the date of commission of the offense fell within the applicable statute of limitations. See Tex. Code Crim. Proc. Ann. art. 12.01(5) (Vernon Supp. 2006) (applicable statute of limitations is ten years from the eighteenth birthday of the victim). De Leon argues that in this case, however, "the prosecution should not be able to rely upon such a loose estimate of dates when the State was aware early in the investigation that the offense could not have occurred under any circumstances on October 31, 2003, and in fact the prosecution presented evidence that nothing happened to the complainant on that date." De Leon cites no legal authority in support of his argument that we should disregard the well established law, and require the State to have alleged and proved a specific date in this case, and we decline to impose such a requirement. See Garcia v. State, 981 S.W.2d 683, 685-86 (Tex. Crim. App. 1998) (an indictment need not specify the precise date or a "narrow window of time" within which the charged offense occurred). The evidence was legally and factually sufficient to support the jury's finding that the offense occurred prior to presentment of the indictment and within the limitations period, and that is all that is required under the law. De Leon's issue is without merit.

De Leon next argues the evidence is factually insufficient to support his conviction because while J.C.'s testimony serves as some evidence of knowing and intentional penetration, it is greatly outweighed by the conflicting evidence, which includes her recantation, the fact that her outcry did not mention digital penetration, the lack of medical evidence of penetration, and De Leon's own testimony denying any touching or penetration. We disagree. The jury is the exclusive judge of the witness's credibility and the weight to be given their testimony, and may choose to believe or disbelieve all or any part of a witness's testimony. Mosley v. State, 983 S.W.2d 249, 254 (Tex. Crim. App. 1998). Likewise, reconciliation of conflicts in the evidence is within the sole province of the jury. Id. Moreover, the testimony of a child victim may alone be sufficient to support a sexual assault conviction. See Ruiz v. State, 891 S.W.2d 302, 304 (Tex. App.--San Antonio 1994, pet. ref'd); see also Tex. Code Crim. Proc. Ann. art. 38.07 (Vernon 2005). Even though De Leon denied putting his finger in J.C.'s vagina or otherwise sexually assaulting her, and further denied ever being home alone with the children, the jury chose to believe J.C., and disbelieve De Leon. J.C.'s trial testimony, while alone sufficient, was corroborated by her outcry statement to Herrera-Lucio that De Leon had fondled her vaginal area, her statements to the CPS investigator consistent with the outcry, and her statements to Dr. Kellog regarding digital penetration of her vagina. Considering all of the evidence in a neutral light, we hold that the evidence supporting De Leon's conviction is not so weak as to render the jury's verdict clearly wrong and manifestly unjust, and the conflicting evidence does not render the jury's verdict against the great weight and preponderance of the evidence. See Watson, 204 S.W.3d at 414.

Fatal Variance

In his third issue, De Leon contends there was a fatal variance between the indictment and the evidence because the State's trial evidence refuted the date alleged in the indictment. See Gollihar v. State, 46 S.W.3d 243, 246-48 (Tex. Crim. App. 2001) (a material variance occurs if a discrepancy between the allegations in the indictment and the proof presented at trial prejudices the defendant's substantial rights by depriving him of adequate notice of the charge against him and subjecting him to the risk of later prosecution for the same crime). A variance claim is treated as a sufficiency of the evidence challenge. Id. at 247. As discussed, supra, there is no variance between the offense date alleged in the indictment and the evidence at trial because the date proven is anterior to presentment of the indictment and within the statute of limitations. Wright, 28 S.W.3d at 532. Moreover, assuming there is a variance, it is immaterial because the record clearly shows De Leon had adequate notice of the charges against him, and there was only one incident involving J.C. so there is no risk of subsequent prosecution for the same conduct. Gollihar, 46 S.W.3d at 248. De Leon's third issue is overruled.

Prosecutorial Misconduct

In his final issue, De Leon complains that during closing argument the prosecutor inappropriately injected her personal opinion about De Leon's credibility, and that the argument was reversible error because the case turned on credibility. We disagree. During the State's closing argument, the prosecutor referred to De Leon's statements that he was "never" home alone with the children and that he "never" touched J.C. inappropriately and told the jury, "... and when you go back and you think about the Defendant's testimony, think about what he said. I'm always a little suspicious and suspect that people who talk in absolutes... ." Counsel's objection to the prosecutor "injecting her own personal opinion" was sustained, and the trial court instructed the jury to disregard the statement; the court denied the defense's motion for a mistrial. Assuming that the prosecutor's argument was improper, it is well established that, generally, when a trial court sustains an objection to improper jury argument and instructs the jury to disregard the improper statement, any existing error is cured. Gardner v. State, 730 S.W.2d 675, 696 (Tex. Crim. App. 1987) (appellate court presumes jury obeyed instruction to disregard); Logan v. State, 698 S.W.2d 680, 682 (Tex. Crim. App. 1985). It is only when a comment to the jury is so inflammatory that its prejudicial effect cannot be reasonably cured by an instruction to disregard that reversible error will result. Logan, 698 S.W.2d at 682 (argument must be "extreme, manifestly improper, inject new and harmful facts into the case, or violate a mandatory statutory provision" to constitute reversible error). The ultimate determination of whether the argument is harmful enough to warrant reversal is based on the argument's probable effect on the minds of the jurors. Id. Viewed in context, the prosecutor's single comment regarding her opinion of De Leon's credibility was not so extreme or prejudicial that it could not be cured by the trial court's instruction to disregard. Therefore, the trial court did not abuse its discretion in denying the motion for a mistrial. See Wood v. State, 18 S.W.3d 642, 648 (Tex. Crim. App. 2000) (an improper question will only require a mistrial when it is clearly prejudicial to the defendant and "is of such character as to suggest the impossibility of withdrawing the impression produced on the minds of the jurors").

 

Based on the foregoing reasons, the judgment of the trial court is affirmed.

Phylis J. Speedlin, Justice

 

DO NOT PUBLISH