Mario Limone Saucedo v. The State of Texas--Appeal from 198th Judicial District Court of Menard County

MEMORANDUM OPINION
No. 04-02-00864-CR
Mario Limone SAUCEDO,
Appellant
v.
The STATE of Texas,
Appellee
From the 198th Judicial District Court, Menard County, Texas
Trial Court No. 02-1892
Honorable Emil Karl Prohl, Judge Presiding

Opinion by: Catherine Stone, Justice

Sitting: Catherine Stone, Justice

Paul W. Green, Justice

Karen Angelini, Justice

Delivered and Filed: October 8, 2003

AFFIRMED

A jury found appellant, Mario Saucedo, guilty of two counts of aggravated sexual assault and one count of indecency with a child by contact. On appeal, Saucedo claims the evidence is legally and factually insufficient for a rational trier of fact to find beyond a reasonable doubt the allegations contained in Count one. Saucedo also argues that the trial court erred by failing to admonish him in accordance with Articles 26.13 and 26.14 of the Code of Criminal Procedure, thus rendering involuntary his plea of guilty to count five of the indictment. We disagree and affirm the trial court's judgment.

BACKGROUND

In January of 2002, P.S., then a ten-year-old student, told her school counselor that her dad, Mario Saucedo, had been touching her. The school notified the sheriff and then P.S. and her sister A.S. (then twelve-years old) spoke with a Child Protective Services ("CPS") worker. P.S. and A.S. were later taken to Kerrville and examined by a Sexual Assault Nurse Examiner.

The State prosecuted Saucedo on four counts of aggravated sexual assault and one count of indecency with a child. Brief captions of the counts are as follows:

Count one: On or about August 6, 1997, Mario Saucedo knowingly and intentionally sexually assaulted P.S. by causing the male sexual organ of Mario Saucedo to contact and penetrate the female sexual organ of P.S.

Count two: On or about December 22, 2001, Mario Saucedo knowingly and intentionally sexually assaulted P.S. by causing the male sexual organ of Mario Saucedo to contact and penetrate the female sexual organ of P.S.

Count three: On or about October 20, 2001, Mario Saucedo knowingly and intentionally sexually assaulted P.S. by causing the male sexual organ of Mario Saucedo to penetrate the mouth of P.S.

Count four: On or about February 10, 1994, Mario Saucedo knowingly and intentionally sexually assaulted A.S. by causing the male sexual organ of Mario Saucedo to contact and penetrate the anus of A.S.

Count five: On or about June 15, 2000, Mario Saucedo intentionally and knowingly engaged in sexual contact with A.S. by placing his hands and portions thereof upon and against the breasts and genitals of A.S. with the intent to arouse or gratify the sexual desire of Mario Saucedo.

Appellant plead guilty to Count five, the indecency allegation.

At trial, both P.S. and A.S. testified to various sexual encounters with their father by adoption, Mario Saucedo. P.S. explained that she refers to a male sexual organ as a "dick" and a female sexual organ as a "china." She recounted episodes where Saucedo touched her female sexual organ and her behind with his hands and his sexual organ. More specifically, P.S. described times when he engaged in anal and oral sex with her. P.S. initially told two of her older sisters and her mother about Saucedo's conduct, and later told the school counselor. The sexual assault nurse who examined both P.S. and A.S. in Kerrville stated that P.S. explained in her interview that these occurrences had been ongoing since she was two-years old, adding up to over fifty times.

A.S. also recounted similar incidents involving Saucedo entering her from behind and also touching her sexual organ with his hands. Like P.S., A.S. told people close to her such as her cousin and her older sister. Just as P.S. did, A.S. did not share any details with her family, but stated only that Saucedo had touched her. The sexual assault nurse examiner explained that neither A.S. nor P.S. had any physical scars or tears pertaining to these specific allegations. However, she also stated that the history each girl shared with her was consistent with sexual assault.

The jury returned a verdict of not guilty to Counts two and four, and guilty to Counts one, three, and five. The jury sentenced Saucedo to twelve years confinement for Count one, twelve years confinement for Count three, and ten years confinement for Count five. The Judge ordered these sentences to run consecutively.

DISCUSSION

Saucedo presents three issues, complaining of legal and factual insufficiency and the trial court's failure to admonish him prior to accepting his plea of guilty to Count five.

Sufficiency of the Evidence

In his first issue, Saucedo contends the evidence is legally insufficient for a rational trier of fact to find beyond a reasonable doubt the allegations contained in Count one. When reviewing the legal sufficiency of the evidence, the appellate court must view the evidence in a light most favorable to the verdict and determine 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); Whitaker v. State, 977 S.W.2d 595, 598 (Tex. Crim. App. 1998); Johnson v. State, 103 S.W.3d 463, 464 (Tex. App.-San Antonio 2003, no pet.). "A determination that the evidence is 'legally insufficient' means that the case should never have been submitted to the jury." Clewis v. State, 922 S.W.2d 126, 132-33 (Tex. Crim. App. 1996).

Saucedo also argues that the evidence is factually insufficient for a rational trier of fact to find beyond a reasonable doubt the allegations contained in Count one. In reviewing the factual sufficiency of the evidence, the court of appeals must view "all the evidence without the prism of 'in the light most favorable to the prosecution.' ... [and] set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust." Clewis, 922 S.W.2d at 129. However, an appellate court must defer to a jury's findings and cannot reverse just because it disagrees with their findings. Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). A finding of factual insufficiency may be made only where it is necessary to prevent a manifest injustice, and even then a detailed explanation of the finding must be provided. Id.; Johnson v. State, 23 S.W.3d 1, 9 (Tex. Crim. App. 2000). After a neutral review of all of the evidence, both for and against the finding, the appellate court must determine if "the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof." Johnson, 23 S.W.3d at 11.

P.S. testified that Saucedo sexually assaulted her with his male sexual organ. Saucedo claims the evidence is insufficient since P.S.'s testimony appears to be contradictory and shifts between a discussion involving the allegations of Count one (i.e. contact or penetration) at home and one involving anal penetration (for which Saucedo was not indicted as regards to P.S.) at the farm. Saucedo further argues that the prosecutor asked P.S. multiple questions at once, thus it was unclear and confusing as to what she was answering. Her testimony did indicate indecency by contact, assault by contact, and assault by anal penetration. Likewise, her testimony referred to assault by vaginal penetration. Nonetheless, Saucedo claims that P.S.'s testimony fails to establish when or if vaginal penetration or contact occurred.

If one were to read P.S.'s testimony concerning just the incident at the farm, it is conceivable that there could be confusion about whether the farm incident involving anal penetration also refers to the incident as alleged in Count one, vaginal penetration or contact. However, Saucedo fails to acknowledge that in the beginning of P.S.'s testimony, she clearly answered "yes" when the prosecutor asked her if her father's sexual organ had touched her sexual organ.

Q. Okay. Now, did he ever rub his - or touch his dick to your china? Did his dick ever touch your china?

A. Yes.

Q. Okay. And did that happen one time or more than one time?

A. One time.

As P.S.'s testimony continues, it is possible that parts appear contradictory depending on which of the prosecutor's questions she is answering. However, "[w]hat weight to give contradictory testimonial evidence is within the sole province of the jury, because it turns on an evaluation of credibility and demeanor." Cain, 958 S.W.2d at 408-09. Therefore, it was within the jury's discretion to believe or disbelieve the portions of P.S's testimony concerning contact between her and Saucedo's sexual organs. In addition, "the testimony of a sexual assault victim [such as P.S.] alone is sufficient evidence of penetration to support a conviction, even if the victim is a child." Hellums v. State, 831 S.W.2d 545, 547 ( Tex. App.-Austin 1992, no pet.); Tear v. State, 74 S.W.3d 555, 560 (Tex. App.-Dallas 2002, pet. ref'd); Tex. Code Crim. Proc. Ann. art. 38.07 (Vernon Supp. 2003). Therefore, the evidence is sufficient to support a finding of contact between their sexual organs. It was the jury's decision to believe or disbelieve the testimony.

Saucedo also argues that the date alleged in the indictment was never substantiated at trial, thus the evidence was legally and factually insufficient to support the jury's guilty verdict for Count one. Count one of the indictment alleged that the event occurred "on or about August 6, 1997." Saucedo was found not guilty of Count two, which alleged a sexual assault occurring "on or about December 22, 2001." Saucedo claims that since the jury found him not guilty on Count two and guilty on Count one, the date for Count one (August 6, 1997) needed to be substantiated at trial in order to support his conviction under Count one. However, the Court of Criminal Appeals and this court have held the opposite.

When an indictment contains the phrase "on or about" preceding a date, it is not perceived as a literal date to prove, but rather signifies any date before the presentation of the indictment that is not barred by limitations. Sledge v. State, 953 S.W.2d 253, 256 (Tex. Crim. App. 1997); see Scoggan v. State, 799 S.W.2d 679, 680 (Tex. Crim. App. 1990); Stewart v. State, 933 S.W.2d 555, 558 (Tex. App.-San Antonio 1996, pet. ref'd.). The date of a crime is not an element of the crime that needs to be proved. See Owens v. State, 96 S.W.3d 668, 672 (Tex. App.-Austin 2003, no pet.). In fact, an indictment that alleges the event occurred "on or about" a particular date serves as notice for the accused to prepare for proof that the incident could have occurred at any time within the period of statute of limitations. Thomas v. State, 753 S.W.2d 688, 693 (Tex. Crim. App. 1988). The statutory period of limitations in this case is ten years from P.S.'s eighteenth birthday, which will be in June of 2019. See Tex. Code Crim. Proc. Ann. art. 12.01(5)(B) (Vernon Supp. 2003). Therefore, the date of August 6, 1997 is to be construed liberally and need not be substantiated as Saucedo argues.

Viewing the evidence in the light most favorable to the verdict, we hold that a rational trier of fact could have found that Mario Saucedo engaged in the aggravated sexual assault alleged in Count one. In addition, viewing the evidence in a neutral light, we hold that the jury's verdict is not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust concerning the allegations in Count one. Therefore, Saucedo's first and second issues are overruled.

Admonishments

Saucedo argues that the trial court erred in failing to admonish him in accordance with articles 26.13 and 26.14 of the Code of Criminal Procedure, thus rendering involuntary his plea of guilty to Count five of the indictment. Article 26.13 contains a list of admonishments that the trial court must administer before accepting the defendant's plea of guilty. Among the required admonishments that the trial court must inform the defendant of are: the range of punishment; the non-binding nature of the prosecutor's recommendation; the deportation consequences if the defendant is not a United States citizen; and the sex offender registration requirements. Tex. Code Crim. Proc. Ann. art. 26.13 (Vernon Supp. 2003). Further, the defendant must appear mentally competent so that the plea is free and voluntary. Id.

The only discussion concerning the defendant's guilty plea to Count five is as follows:

The Court: And how does the Defendant plead?

The Defendant: I'm going to plead guilty to indecency and not guilty to the other -

Ms. Young: Other allegations.

The Defendant: - other allegations.

Mr. Sullivan: I think he has a hard time pronouncing that, Your Honor.

The Court: Okay. You understand that if you plead guilty to the charge, the jury will have to find you guilty of that? You understand that?

The Defendant: Yes, I understand that.

The Court: Thank you. You may be seated. State may begin their opening statement.

Clearly, the proper admonishments under article 26.13 were not given. While the State and trial judge both discussed the range of punishment during voir dire, there are still other important admonishments that were not given.

The purpose of the article 26.13 admonishments is "to assist the district judge in making the constitutionally required determination that the guilty plea was truly voluntary." Carranza v. State, 980 S.W.2d 653, 656 (Tex. Crim. App. 1998) (quoting McCarthy v. United States, 394 U.S. 459, 465 (1969). If a plea of guilty is not voluntary then it would be a violation of the defendant's due process and thus void. Aguirre-Mata v. State, 992 S.W.2d 495, 499 (Tex. Crim. App. 1999). Although substantial compliance with article 26.13 may be sufficient, in the present case the trial court did not discuss sex offender registration requirements; nor did the court inquire as to the mental competency of the defendant or the voluntariness of his guilty plea. Clearly, the court did not substantially comply with article 26.13. We hold the trial court erred in failing to administer admonishments under article 26.13 to Saucedo. The admonishments under article 26.13 are not constitutionally required since they are merely intended to help the trial court determine the voluntariness of the guilty plea, thus the error should be viewed under Tex. R. App. 44.2(b) (1). See Aguirre-Mata, 992 S.W.2d at 499. Rule 44.2(b) applies versus 44.2(a) since failing to admonish a defendant concerning the direct consequences of a guilty plea is not constitutional error, but statutory. See Burnett v. State, 88 S.W.3d 633, 637 (Tex. Crim. App. 2002). Rule 44.2(b) requires that when the court has not substantially complied in administering the admonishments under article 26.13, the appellate court must reverse the conviction if the record reflects that the defendant was unaware of the consequences of pleading guilty, and that he was misled and harmed by the court's admonishment. See id. at 638. In effect, the defendant's substantial rights must be affected or else the error is disregarded. See Tex. R. App. P. 44.2(b). The Court of Criminal Appeals has held that a "substantial right is affected when the error has a substantial and injurious effect or influence in determining the jury's verdict." Johnson v. State, 43 S.W.3d 1, 4 (Tex. Crim. App. 2001). Thus, the appellate court must examine the record to see if the defendant was unaware of the consequences of his guilty plea, and if he was misled or harmed by the trial court's failure to admonish him. See Burnett, 88 S.W.3d at 638.

The record indicates that Saucedo was aware of the consequences of his plea. As the trial progressed, Saucedo never mentioned any reservation he might have held towards his guilty plea. Before Saucedo even made his guilty plea, both the trial court and the State discussed the ranges of punishment for indecency with a child, a second degree felony. In addition, the fact Saucedo was not admonished concerning registering as a sex offender is not harmful since the statutory duty to register is not a direct consequence of pleading guilty. See Guzman v. State, 993 S.W.2d 232, 236 (Tex. App.-San Antonio1999, pet ref'd.); see Ducker v. State, 45 S.W.3d 791, 796 (Tex. App.-Dallas 2001, no pet.). Thus, the trial court's failure to inform Saucedo about registering does not invalidate his guilty plea. See Ducker, 45 S.W.3d at 796.

In conclusion, the fact Saucedo plead guilty to Count five does not appear to have influenced the jury's verdict. There was substantial testimony from the alleged victims and state health examiners, which the jury chose to believe, to support the verdict. The Court of Criminal Appeals has acknowledged that recognizing substantial evidence in support of the verdict is a factor to consider in a harmless error analysis under Rule 44.2(b). See Motilla v. State, 78 S.W.3d 352, 357 (Tex. Crim. App. 2002). There is no indication that Saucedo was unaware of the consequences of his actions, or that he was misled or harmed by the guilty plea when he specifically announced to the trial court that "I'm going to plead guilty to indecency and not guilty to the other." (2)

Although the trial court erred in not properly admonishing appellant under article 26.13, the error was harmless under Rule 44.2(b); therefore, Saucedo's third issue is overruled.

Conclusion

Finding no harmful error, we affirm the judgment of the trial court.

Catherine Stone, Justice

Do Not Publish

1. Any other error, defect, irregularity, or variance that does not affect substantial rights must be disregarded.

2. At oral argument, Saucedo's appellate counsel argued that the record supports the conclusion that the trial court and trial counsel were surprised that Saucedo pled guilty to the indecency charge. He claims that under the circumstances, the trial court should have excused the jury and then questioned and cautioned Saucedo about the potential ill-effects of pleading guilty to one count when there were four remaining counts. As counsel readily admitted, however, the trial court had no duty to provide that type of advice or admonishment.