Gonzalo Segura v. State ( 2005 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-03-00685-CR
Gonzalo Segura, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 403RD JUDICIAL DISTRICT
NO. 3021904, HONORABLE BRENDA KENNEDY, JUDGE PRESIDING
MEMORANDUM OPINION
A jury convicted appellant Gonzalo Segura of aggravated sexual assault of a child and
indecency with a child by contact, and the trial court sentenced him to five years’ imprisonment for
the assault and three years for the indecency. See Tex. Pen. Code Ann. § 21.11 (West 2003)
(indecency with a child), § 22.021 (West Supp. 2004-05) (aggravated sexual assault). On appeal,
appellant argues that the trial court erred in allowing the testimony of certain witnesses, in allowing
evidence related to a photographic lineup consisting only of appellant’s photograph, in refusing
appellant’s request for a mistrial, and in refusing to allow appellant to present evidence of mistaken
identity. Appellant also argues that the evidence is legally insufficient to support the convictions.
We affirm the judgments of conviction.
Factual Summary
Y.G., a twelve-year-old girl, testified that she came to Austin from Mexico for a
medical procedure in 1998 when she was eight.1 For somewhere between a few weeks and several
months, she lived with her aunt, Reyna Perez, Perez’s husband, and several cousins. Y.G.’s father
was either in Austin already or came to Austin shortly after Y.G. arrived, but he did not live with
Y.G. at her aunt’s house, and Y.G.’s mother came to Austin after Y.G. Y.G. said that three other
men also lived at her aunt’s house; one was named Gonzalo and was a friend of her father’s. Y.G.
did not know his last name, but identified appellant as Gonzalo. Y.G. shared a room and bed with
her three cousins, and she testified that Gonzalo came into the room one night while her cousins
were asleep, unzipped Y.G.’s pants and touched her “private part” with his finger. He touched her
for several minutes but stopped when she moved and left the room without speaking. Y.G. testified
that sometime after this incident Gonzalo put his hand under her shirt after Perez had gone to work.
Finally, Y.G. recounted that Gonzalo touched her on the thigh when he was driving her, as well as
his daughter K. and Y.G.’s cousins, to a flea market and told her she was going to be his girlfriend.
Y.G. testified that she waited “a while” to tell anyone about the touching because she
was scared that her father would do something to Gonzalo and get in trouble. The first person she
told was her fourth-grade teacher, Hector Negrete. Y.G. told Negrete about Gonzalo’s touching after
a police officer came to school and said that students could talk to her if they had any problems.
When Y.G. asked to talk to the officer, Negrete asked why, and Y.G. told him what had happened.
1
Y.G. had an interpreter translate questions asked of her from English into Spanish but said
she was comfortable answering in English.
2
The State next called Negrete to testify. Appellant objected to Negrete’s testimony
as an outcry witness on grounds that Y.G.’s statement to him made no specific allegations, but only
an “allusion of sexual abuse.” After a hearing outside of the jury’s presence, the trial court overruled
appellant’s objection and allowed Negrete to testify as an outcry witness. Negrete was Y.G.’s
teacher in the 2000-2001 school year and at the end of the year, he presented a program about
unwanted touching, during which a student asked who they should tell about unwanted touching, and
he said they should tell an adult they trusted. Afterwards, Y.G. approached and asked to speak to
a female police officer who had visited the school earlier. Negrete asked if he could help because
the officer had not been at the school for some time, and Y.G. told him that “she had received
unwanted touches” by someone she called Gonzalo who lived at her aunt’s house. She said the
touching occurred when she stayed overnight at her cousins’ home, that it had happened repeatedly,
and that “it had been a while since the last time that it had happened, a few months.” Y.G. told
Negrete that she had been touched on her “private parts” and chest. Negrete said that Y.G. was
initially calm, but became upset and started crying as she described what had happened. She said
she had not told her parents because she was afraid of what they would do. Mr. Negrete then called
Child Protective Services (“CPS”) and reported the alleged abuse.
Cyndi Cantu, interviewer at the Children’s Advocacy Center, testified that she
interviewed Y.G. at the request of a police officer who had a “very vague” report and needed more
details. Cantu was selected to conduct the interview because she is bilingual. Cantu spoke to Y.G.
at school in late November and then took a videotaped statement from Y.G. about ten days later.
Cantu testified that when she first spoke with Y.G at her school, Y.G. said that in 1998, while she
3
lived with Perez, she had been touched on her chest and vagina and that it had happened more than
once. Cantu then stopped the school interview and made arrangements for the videotaped interview.
In the videotaped interview ten days later, Y.G. gave further details, telling Cantu that appellant had
once touched her vagina in 1998 while she was in bed in her cousin’s room and that another time
he tried to touch her breasts, but she stopped him.
Detective Scott Ogle testified that Y.G. gave a general description of her abuser,
saying he was “skinny, speaks only Spanish, and works as a carpet layer,” and that he “had short hair,
was about 28 to 30 years old, tall, black eyes, light complexion.” Ogle then showed Y.G. a
photograph of appellant, and she identified him as the man who had touched her. The photograph
was presented by itself, not as part of a photographic lineup, and it shows a Hispanic man with a
mustache and hair to his shoulders. The copy shown to Y.G. apparently had appellant’s name typed
on it. Ogle said the photograph represented appellant’s appearance except that when Ogle saw him,
appellant had shorter hair. On cross-examination, Ogle said that he would not describe appellant as
overweight in the photograph, but nor could he describe him as “skinny.” Ogle also said appellant
was light-complected and had long hair in the photograph and agreed that appellant’s name appeared
somewhat prominently on the photograph, but he did not think Y.G. read it from the distance she
saw the photograph. He said, “You have to understand she lived with the man for several months.”
Asked what information he relied on in deciding to seek an arrest warrant in this case, he answered
that he mostly relied on Y.G.’s unwavering testimony. Ogle testified that the “basic information”
Y.G. gave about her abuser’s description matched Ogle’s observations of appellant, and he said,
“With a photograph being confirmed, there was no doubt in my mind.”
4
Santiago Hernandez testified that he knew Reyna Perez and lived at her house for
about three years, after moving into the house in late 2000. Y.G. no longer lived there but sometimes
stayed overnight. A man nicknamed “Mona” also lived there briefly, and Hernandez described Mona
as slender or skinny, “[t]all, kind of light-skinned,” with curly hair. Hernandez worked with Perez’s
husband laying carpets and said that both Mona and appellant worked with them at different times.
Hernandez witnessed a dispute between Mona and Reyna over Y.G. and said that Perez kicked Mona
out of the house after the dispute.
Reyna Perez, Y.G.’s aunt, testified that appellant lived in her house for about five
years, including the approximately two months that Y.G. lived with her, and that she helped raise
appellant’s daughter K. She testified that several men lived in the house on and off through the
years, but she could not recall exactly when they lived there or moved out. Perez testified that she
confronted appellant with Y.G.’s allegations when she learned of them in May 2001, and that
appellant was shocked but agreed to leave the house as requested. Sometime after May 2001,
appellant and Y.G. were at the same party, and Perez did not notice any unusual behavior by either
one. Perez said that the photograph shown to Y.G. represented appellant’s appearance and said “[h]e
has never been skinny.” She testified that Mona was tall and thin and said she thought he had short
hair. She could not recall when she made Mona leave the house, and asked whether the reasons for
asking him to leave were “very serious,” answered, “Well, yeah, somewhat.”
Dr. Beth Nauert, a pediatrician in Austin with specialized training in child abuse,
examined Y.G. in September 2002 after a referral by the Austin Police Department. Nauert testified
that Y.G. told her she was touched by “a man named Gonzalo” when she was about eight years’ old
and that she knew Gonzalo because her aunt took care of his daughter. Y.G. told Nauert that
5
Gonzalo touched her breasts and between her legs and inside her vagina, and said that it stopped
when she moved out of her aunt’s house. Nauert said that the results of Y.G.’s physical examination
showed a small cleft in Y.G.’s hymen, which was “consistent with her history of previous vagina
penetration but were not proof of it.” Nauert explained that the majority of girls who are the victims
of penetrating sexual assault “are going to have a normal exam by the time they get to the doctor.”
She said therefore that “seeing the cleft gets my attention,” but did not lead her to say with
“reasonable medical certainty” that Y.G. had been abused. She summarized her conclusions by
stating, “I would call this exam abnormal. It is consistent with this child’s history of having
something put into her vaginal area, but it is not proof by itself that this happened.”
Dr. William Carter testified about delayed outcries in sexual abuse cases and said that
in a majority of such cases, outcries are delayed by “days, weeks, months, even years” and that in
a number of cases, outcries are never made at all. Carter testified that a child might make an outcry
to a teacher after a sexual education program because it would be “an opportunity presenting itself
and then a child taking advantage of that opportunity.” He did not believe that a false outcry would
be likely in that kind of situation. In evaluating the truth of an outcry, Carter considers the child’s
personality, “their capacity to keep the story together, their consistency,” and “how their words and
their behavior and their emotions match up.” Carter testified that he would not necessarily be
concerned if in an initial outcry a child said that she had been touched in “her private part area and
on her chest area,” and then later was more specific and said that her vagina was actually penetrated.
Carter said that he would be looking to see if the child’s reports “basically match up.”
Appellant called Dr. Charles Weaver to testify about the reliability of children’s
memories. Weaver testified that memory fades and becomes more unreliable as time passes and said
6
that a person shown a single-photo lineup may “reconstruct” her memory to fit that photograph,
resulting in a false memory that is “very difficult to shake.” He agreed that a “precise example of
source confusion” would be if “a person remembers someone . . . skinny, short hair, light
complected, mustache, and gives an accurate identification to someone else. But then you show
them a picture of someone else entirely that is heavy, heavyset, got long hair. Is it possible now they
are going to transpose the memory of this with their original perception of the event?” Weaver also
testified about “memory hardening,” meaning the process by which a memory gels and becomes
consistent as a story is repeated, and said that witnesses will become more confident in their
memories as they are questioned repeatedly, even if those memories are false. Finally, Weaver
testified about how suggestible children can be and how easily their statements can be manipulated
or changed, even accidentally. Weaver said that in the videotape of Y.G.’s interview with Cantu,
he saw instances where Y.G. appeared to change her testimony in response to Cantu’s questions.
Evidentiary Rulings
In his first, second, and fifth points of error, appellant argues that the trial court erred
in allowing the testimony of Negrete, Cantu, and Nauert. He asserts that Negrete should not have
been allowed to testify as an outcry witness because Y.G.’s statement to him was too vague. He
asserts that Cantu should not have been allowed to testify because the trial court had already allowed
Negrete as the outcry witness and, thus, Cantu’s testimony was impermissible cumulative testimony.
He argues that Nauert’s testimony was not helpful to the jury because she testified only that Y.G.’s
examination was consistent with the alleged abuse but did not establish whether abuse occurred.
7
In determining whether a witness may testify as an outcry witness or in making other
evidentiary decisions, a “trial court’s findings will be upheld when they are supported by the
evidence, and a trial court has broad discretion in determining the admissibility of such evidence.
The exercise of that discretion will not be disturbed unless a clear abuse of that discretion is
established by the record.” Garcia v. State, 792 S.W.2d 88, 92 (Tex. Crim. App. 1990); see
Hernandez v. State, 973 S.W.2d 787, 789 (Tex. App.—Austin 1998, pet. ref’d) (“As with other
decisions regarding the admissibility of evidence, we will not reverse the trial court’s admission of
the testimony from the second outcry witness absent an abuse of discretion.”).
1. Outcry witnesses
We will first examine whether Negrete was a proper outcry witness and then will
determine whether Cantu’s testimony was properly admitted over appellant’s objection.
A witness may testify as to a child’s hearsay statement if that witness was the first
adult to whom the abused child made a statement about the abuse. Tex. Code Crim. Proc. Ann. art.
38.072, § 2(a) (West 2005). Such testimony is allowed if the trial court determines the statement is
reliable and the child testifies or is available to testify. Id., § 2(b). Texas courts construe the statute
to apply to the first adult to whom the child “makes a statement that in some discernible manner
describes the alleged offense,” and the “statement must be more than words which give a general
allusion that something in the area of child abuse was going on.” Garcia, 792 S.W.2d at 91; see
Jones v. State, 92 S.W.3d 619, 621 (Tex. App.—Austin 2002, no pet.). Although children often do
not speak in exact or precise terms, if the child sufficiently communicates that she was touched on
a part of the body within the statutory definition, the statement may be admissible. See Villalon v.
8
State, 791 S.W.2d 130, 134 (Tex. Crim. App. 1990) (“we cannot expect the child victims of violent
crimes to testify with the same clarity and ability as is expected of mature and capable adults”);
Gallegos v. State, 918 S.W.2d 50, 54 (Tex. App.—Corpus Christi 1996, pet. ref’d) (“Where the child
has sufficiently communicated that the touching occurred to a part of the body within the definition
of the statute, the evidence will be sufficient to support a conviction regardless of the unsophisticated
language that the child uses.”).
Appellant contends that Y.G.’s statement to Negrete was too vague to be considered
an outcry. Y.G. told Negrete that “Gonzalo,” a man who lived at her aunt’s house, had repeatedly
touched her on her “private parts” and chest. Y.G.’s statement, although not rife with details such
as date, time, or anatomical names, clearly communicated that someone named Gonzalo had touched
her against her wishes and on areas of her body “within the definition of the statute,” amounting to
criminal conduct. See Gallegos, 918 S.W.2d at 54; see also Tex. Pen. Code Ann. §§ 21.11, 22.021
(elements of offenses). The trial court did not abuse its discretion in allowing Negrete to testify as
an outcry witness under article 38.072. We overrule appellant’s first point of error.
Appellant next argues that Cantu should not have been allowed to testify because the
trial court had already allowed Negrete to testify as an outcry witness.
Y.G. testified first, and during his cross-examination of her, appellant repeatedly
referred to her videotaped session with Cantu, asking about what he implied were inconsistencies
between her trial testimony and her taped statement and inconsistencies in the taped statement itself.
When the State called Cantu as a witness, appellant objected, arguing that the State could only use
one outcry witness. The State countered that it was not proffering Cantu as an outcry witness but
instead to answer appellant’s issues related to the interview. The trial court allowed Cantu to testify,
9
and the State limited its questions of her to her educational and professional background, the
arrangements for the interview with Y.G., and her demeanor during the interview. On cross-
examination, appellant asked numerous questions related to leading questions and the effect such
questions can have on the testimony of children and referred to the videotaped interview, which had
not been introduced into evidence, asking about portions when Y.G.’s answers differed. Appellant
particularly emphasized Cantu’s questions regarding whether Y.G. was wearing panties under her
shorts on the night appellant came into her room. For example, appellant asked Cantu, “Either she
at some point said she had panties or you at some point told her, You had panties under your shorts;
and then that’s when she started saying she had panties under her shorts. Do you recall that?”
Appellant also asked Cantu about her use of anatomically correct dolls with Y.G., asking about her
knowledge of certain bans on the use of such dolls as inherently suggestive. On re-direct, the State
sought to ask Cantu more questions about her interview with Y.G., arguing that appellant had opened
the door to those questions by his implied charge of improper influence and improper questioning
techniques. The trial court overruled appellant’s objection and allowed the State to inquire as to
Cantu’s interview with Y.G. and Y.G.’s answers.
Rule 801(e)(1)(B) provides that one witness’s testimony as to another witness’s prior
statement is not hearsay if the declarant testifies and the statement is consistent with the declarant’s
testimony and is offered to rebut a charge of recent fabrication or improper influence or motive. Tex.
R. Evid. 801(e)(1)(B). Here, appellant called the credibility or reliability of Y.G.’s allegations into
question from the very beginning, impliedly charging that Y.G. had been led into making her
allegations of abuse and identifying appellant as her abuser by improper questioning and techniques.
When Cantu was called to testify, appellant again implied that Cantu had improperly led Y.G. into
10
alleging sexual assault through leading questions, making false statements of fact that were then
adopted by Y.G., and using anatomically correct dolls. The trial court could reasonably have found
that Cantu’s testimony as to questions she asked and how Y.G. answered was necessary to counter
appellant’s implied charge of improper influence under rule 801(e)(1)(B).2 The trial court did not
abuse its discretion in allowing Cantu to testify. We overrule appellant’s second point of error.
2. Medical testimony
Appellant asserts that Nauert’s testimony was not helpful to the jury and should not
have been allowed because she testified only that Y.G.’s examination was consistent with the alleged
abuse but could not testify that the examination established that the abuse actually took place.3
Evidence is relevant if it has any tendency to make a fact more or less probable. Tex.
R. Evid. 401. Relevant evidence may still be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice or confusion. Tex. R. Evid. 403. A medical or other
expert may give expert testimony if the evidence will assist the jury in understanding the evidence
or determining a fact question. Tex. R. Evid. 702.
2
We further note that appellant did not object at other points in the trial when witnesses,
including Y.G. and Ogle, testified about what Cantu asked and Y.G. said during her taped interview.
3
On appeal, appellant argues that Nauert’s testimony was of no assistance to the jury and
was prejudicial, referencing rules 403 and 702. See Tex. R. Evid. 403, 702. Before the trial court,
appellant argued at great length that Nauert’s testimony was prejudicial and irrelevant but did not
reference rule 702, at most asking at one point how the testimony would assist the jury. The trial
court overruled appellant’s objection, holding the evidence was relevant and probative. See Tex. R.
Evid. 401, 403. Appellant’s trial objection clearly focused on rules 401 and 403 and did not bring
any other objections to the court’s attention. Therefore, appellant waived any objection beyond those
based on rules 401 and 403. Tex. R. App. P. 33.1. Even if we consider appellant’s argument as a
rule 702 argument, however, the trial court did not err in allowing the testimony.
11
Nauert testified that the findings of her physical exam, which showed a small
abnormality in Y.G.’s hymen, were consistent with the allegations of abuse. However, she also
testified that frequently in cases where a child was sexually abused in the past, there is no physical
sign of abuse. Nauert could not say that the exam results conclusively proved that Y.G. had been
abused, but nor did the exam rule out or cast doubt on the allegations of abuse. This testimony is
relevant to the issue of whether Y.G. was abused because it helped explain why the results of Y.G.’s
examination were indefinite and why sexual abuse may not be apparent in examinations in general.
We cannot hold that the trial court abused its discretion in determining that this testimony would aid
the jury and therefore was relevant and admissible. Nor can we hold that the trial court abused its
discretion in determining that Nauert’s testimony was not overly prejudicial. Nauert testified that
the results of the examination, although not counter to the allegations, did not prove that any abuse
occurred at all. Further, since appellant’s main defensive theory was that the wrong man was
identified, testimony that was mostly neutral or slightly supportive of whether Y.G. was abused did
not harm his defense. We overrule appellant’s fifth point of error.
Motion for Mistrial
In his fourth point of error, appellant argues that the trial court erred when it denied
his motion for mistrial made after Ogle stated he believed Y.G. was telling the truth.
Ogle testified that he mostly relied on Y.G.’s unwavering testimony in deciding to
seek a warrant for appellant’s arrest. He said, “I have had several hundred child abuse cases assigned
to me, and there was no doubt in my mind that she was telling the truth.” Appellant objected to that
statement, and the trial court sustained the objection. Appellant moved for an instruction to
12
disregard, which the trial court granted, but the court denied appellant’s subsequent motion for a
mistrial. On cross-examination, appellant asked Ogle, “[V]ery clearly you said that this child’s
testimony was unwavering; is that correct?” Ogle answered, “In my opinion she was telling the
truth.” Appellant objected but did not obtain a ruling from the trial court and then said, “[W]e
already know you said she was telling the truth. You said that she was unwavering. Does that mean
that you believe that she was completely consistent?” Ogle answered, “Yes, for a victim, I do.”
A trial court’s denial of a motion of mistrial is reviewed for an abuse of discretion.
Trevino v. State, 991 S.W.2d 849, 851 (Tex. Crim. App. 1999). “Generally, any error in asking an
improper question is cured and rendered harmless by an instruction to disregard,” and a defendant
complaining of an improper question or answer must show obvious harm that could not be cured by
an instruction to disregard. McIntosh v. State, 855 S.W.2d 753, 770 (Tex. App.—Dallas 1993, pet.
ref’d) (citing Ransom v. State, 789 S.W.2d 572, 585 (Tex. Crim. App. 1989)). Here, the trial court
gave an instruction to disregard as requested by appellant, and appellant has not shown obvious and
incurable harm. Further, appellant waived any error by his own questioning that led Ogle to answer
again that he believed Y.G. was telling the truth. Appellant objected, but did not obtain a ruling, and
then went on to ask, “[W]e already know you said she was telling the truth. You said that she was
unwavering. Does that mean that you believe that she was completely consistent?” Appellant not
only brought the subject up again on cross-examination, he failed to get a ruling when he objected
to Ogle’s statement and then he repeated himself that Ogle believed Y.G. was telling the truth.
Appellant has therefore waived any error in refusing to grant his motion for a mistrial. See Massey
v. State, 933 S.W.2d 141, 149 (Tex. Crim. App. 1996); Maynard v. State, 685 S.W.2d 60, 65 (Tex.
13
Crim. App. 1985); Hyde v. State, 970 S.W.2d 81, 85 (Tex. App.—Austin 1998, pet. ref’d). We
overrule appellant’s fourth point of error.
Photographic Lineup
In his sixth point of error, appellant argues that Ogle’s testimony about Y.G.’s
identification violated his constitutional rights and that Ogle’s investigation was “so selective, one-
sided and improper” that it violated his constitutional rights.4 Appellant argues that the photographic
lineup was erroneous because: his name was written on the front; it did not resemble the physical
description given by Y.G. before she saw the photo; it was shown to Y.G. by itself, rather than as
part of a multi-photograph lineup; and it did not include a photograph of Mona, who appellant asserts
had the means and opportunity to commit the offense and more closely matched Y.G.’s physical
description. Appellant admits that he did not object to the admission of the photograph or any of the
identification testimony, but argues that the evidence is so “manifestly dangerously suggestive” that
its admission was fundamental and reversible error.
Single-photograph lineups are improperly suggestive, but not necessarily
inadmissable. See Johnigan v. State, 69 S.W.3d 749, 752 (Tex. App.—Tyler 2002, pet. ref’d) (citing
Manson v. Brathwaite, 432 U.S. 98, 109 & 117 (1977)); see also Delk v. State, 855 S.W.2d 700, 706
(Tex. Crim. App. 1993) ( finding photograph impermissibly suggestive: “Mrs. Allen was only shown
4
In his brief, appellant does not assert that the trial court erred in the admission of evidence
related to Y.G.’s identification of him based on the photographic lineup, but instead attacks the trial
court’s decision to admit the photograph used by Ogle to obtain Y.G.’s identification. Having
carefully read the substance of his argument, we will evaluate whether the evidence related to his
identification was erroneously admitted.
14
one picture. It was presented to her as the person who was in custody, under indictment, for the
murder of her husband. It is possible that this procedure suggested to Mrs. Allen that the Sheriff
believed appellant was the person who killed her husband.”); Hicks v. State, 901 S.W.2d 614, 619
(Tex. App.—San Antonio 1995, pet. ref’d) (citing Herrera v. State, 682 S.W.2d 313, 318-19 (Tex.
Crim. App. 1984)) (“Even the use of a single photograph, while suggestive, is not necessarily
inadmissible, per se.”). If a photographic display was impermissibly suggestive, we must determine
whether, based on the totality of the circumstances, the suggestive display gave rise to a “very
substantial likelihood of irreparable misidentification.” Delk, 855 S.W.2d at 706. A conviction
“based on eyewitness identification at trial following a pretrial identification by photograph will be
set aside on that ground only if the photographic identification procedure was so impermissibly
suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” Simmons
v. United States, 390 U.S. 377, 384 (1968). The core issue is whether under the totality of the
circumstances, “the identification was reliable even though the confrontation procedure was
suggestive,” considering: (1) the witness’s opportunity to view the criminal at the time of the crime;
(2) the witness’s degree of attention; (3) the accuracy of the witness’s prior descriptions; (4) the level
of certainty demonstrated by the witness; and (5) the length of time between the crime and the
identification. Neil v. Biggers, 409 U.S. 188, 199-200 (1972). We must consider the above factors
deferentially and in a light favorable to the trial court’s ruling. Loserth v. State, 963 S.W.2d 770,
773 (Tex. Crim. App. 1998). The factors, all issues of historical fact, are weighed de novo against
the suggestive pretrial identification procedure. Id. at 773-74.
15
In this case, Y.G. gave a physical description, which was rather vague, and also
consistently said her abuser was named “Gonzalo,” was a friend of her father’s, worked laying
carpet, lived at Y.G.’s aunt’s house at the same time Y.G. lived there, and had a daughter named K.
Y.G. had more than adequate opportunity to observe and even become acquainted with her assailant
before the abuse occurred. The abuse occurred more than once, and although the first instance took
place at night when Y.G. may have been half-asleep, her testimony does not demonstrate that she
was unaware of what was going on or who the person was. Other witnesses said appellant was not
what they would consider “skinny,” but the photograph of appellant’s face does not show him to be
overweight. In the photograph, appellant has hair to his shoulders, but Ogle said appellant’s hair was
shorter when he saw him. We have no photographs or descriptions of appellant other than those
described above. Appellant may not have fit Y.G.’s verbal description as well as Mona, but other
than the length of hair, the photograph of appellant does not affirmatively conflict with the verbal
description. At trial, Y.G. again identified appellant as the person who had touched her.5 Based on
this record and viewed in the light most favorable to the trial court’s decision, we cannot hold that
the single-photo lineup gave rise to a “very substantial likelihood of irreparable misidentification.”
See Simmons, 390 U.S. at 384; Delk, 855 S.W.2d at 706. We overrule appellant’s sixth point of
error.
5
As for appellant’s assertion that the admission of the photograph itself was error, the fact
that the photograph had appellant’s name written on the bottom would seem to bolster appellant’s
defense that Y.G. was led into misidentifying him rather than Mona or some other man by improper
questioning techniques. Showing the jury that Y.G. saw only one photograph, which had his name
written on it and which may not match Y.G.’s description as well as others might, would seem to
benefit appellant in his defense. Appellant has not shown that the jury’s being allowed to see the
photograph amounted to fundamental error requiring reversal.
16
Evidence of Mistaken Identity
In his seventh point of error, appellant argues that the trial court erred in refusing to
allow him to present evidence of mistaken identity by barring Perez from testifying about Mona’s
alleged attempt to get one of her sons to touch his penis.6
Outside the presence of the jury, Perez testified that one of her young sons told her
that Mona tried to get her older son to put his hand on Mona’s penis and that that was the reason
Perez kicked Mona out of the house. She could not recall if Mona lived in the house at the same
time as Y.G., but said it had been “more or less more than two years ago” and after appellant moved
out in about 2001.7 The State objected that the evidence was hearsay and irrelevant, and the trial
court sustained the objection, refusing to allow Perez to testify about the incident involving the little
boy. The court limited her to testifying that she kicked Mona out for “serious” reasons and allowed
appellant to question her about Mona’s appearance and other issues.
Perez did not witness the alleged incident between Mona and her son, and her
testimony about that incident would have been hearsay. See Tex. R. Evid. 801(d) (defining hearsay).
Appellant does not argue that the testimony fits into any of the exceptions under which hearsay is
allowable.8 See Tex. R. Evid. 803. The trial court could reasonably have determined that this
6
In this point of error, appellant asserts that the trial court erred in refusing to allow certain
“mistaken identity” evidence by Perez, but his argument goes on to assert that the evidence is
factually insufficient to support the verdict. In our discussion of this point of error we will consider
only whether the trial court erred in limiting Perez’s testimony and we will weigh both the legal and
factual sufficiency of the evidence in our later sufficiency discussion.
7
Trial was held in September 2003.
8
Appellant argued at trial that the evidence should be admissible as an excited utterance, see
Tex. R. Evid. 803(2), but he does not make this argument on appeal, nor does he argue that the
17
hearsay testimony was about an incident not sufficiently similar to the abuse alleged by Y.G. because
although both incidents involved adults sexually abusing or attempting to sexually abuse a child, the
victims were of different sexes and the abusive behavior was different. Furthermore, appellant, not
Mona, lived at Perez’s house while Y.G. lived there—Mona lived there for a month or two in about
2001, well after Y.G. had left and after the alleged abuse occurred. The trial court allowed extensive
testimony about how Mona more closely resembled Y.G.’s description of someone skinny and with
short hair. Further, the trial court allowed testimony that Mona was kicked out by Perez due to a
problem related to Y.G. Arguably, that testimony would be more persuasive as “mistaken identity”
evidence than testimony clarifying that Perez kicked Mona out after an incident involving her sons,
not related to Y.G. We cannot hold that the trial court abused its discretion in limiting Perez’s
testimony. We overrule appellant’s seventh point of error.
Sufficiency of the Evidence
In appellant’s third point of error, he argues that the evidence is legally insufficient
because the indictments alleged that the offenses occurred on or about November 20, 2001, and
November 20, 2002, but the evidence showed that the offenses occurred in 1998. We will also
consider the factual sufficiency of the evidence in answer to appellant’s argument related to his
seventh point of error. We turn first to appellant’s legal sufficiency argument.
The court of criminal appeals has held that the State is not required to allege a specific
date in an indictment and that the use of the phrase “on or about” in an indictment allows the State
evidence falls into another exception to the hearsay rule under rule 803 or is not hearsay under rule
801(e). See Tex. R. Evid. 801(e), 803.
18
to prove a date other than the one alleged as long as it is before the presentation of the indictment
and within the statute of limitations. Sledge v. State, 953 S.W.2d 253, 255-56 (Tex. Crim. App.
1997); Mireles v. State, 901 S.W.2d 458, 459 (Tex. Crim. App. 1995). “Where an indictment alleges
that some relevant event transpired ‘on or about’ a particular date, the accused is put on notice to
prepare for proof that the event happened at any time within the statutory period of limitations.”
Thomas v. State, 753 S.W.2d 688, 693 (Tex. Crim. App. 1988).
The indictment was presented on December 19, 2002, and appellant was indicted for
aggravated sexual assault of a child and indecency with a child by contact, alleged to have been
committed on or about November 20, 2001, and November 20, 2002, respectively. The statute of
limitations on sexual assault of a child or indecency with a child is ten years from the victim’s 18th
birthday. Tex. Code Crim. Proc. art. 12.01(5) (West 2005). The jury charge stated that “the State
is not required to prove the exact date alleged in the indictment but may prove the offenses, if any,
to have been committed at any time prior to the presentment of the indictment so long as said
offenses, if any, occurred within 10 years of the presentment of the indictment.” The evidence shows
that the abuse probably occurred sometime in 1998 and ended no later than Spring of 2001, when
Y.G. made her outcry and appellant was asked to leave Perez’s house. Thus, the offense occurred
before the indictment was presented and within the limitation period.
Although appellant acknowledges that the State need not show that the offense
occurred on exactly the date alleged in the indictment, he argues that “it is incomprehensible that the
[S]tate can allege a certain date that deviates from the actual event by a number of years!” However,
such is the state of the law, and the evidence and indictment in this case do not violate the law as set
out by the court of criminal appeals. See Sledge, 953 S.W.2d at 256 (offenses occurred in 1986 and
19
1987, indictment presented in December 1989, alleging offense in August 1988; held that conviction
was proper because offenses occurred before presentment and within statute of limitations); see also
Mendoza v. State, No. 03-03-00162-CR, 2005 Tex. App. LEXIS 556, at *3, *8 (Tex. App.—Austin
Jan. 27, 2005, pet. ref’d) (not designated for publication) (offense committed sometime between
1995 and 1999, indictment alleged offense committed on January 15, 1999; evidence held to be
legally sufficient); Owens v. State, 96 S.W.3d 668, 671 (Tex. App.—Austin 2003, no pet.)
(continuing abuse occurred from 1996 until May 1999, indictment alleged May 15, 1999 as date of
offense). The dates alleged in the indictment do not render the evidence legally insufficient. We
overrule appellant’s third point of error and turn to whether the evidence is factually sufficient to
support the verdicts.
In reviewing the factual sufficiency of the evidence, we view all of the evidence in
a neutral light and will 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 v. State, 922 S.W.2d 126, 129 (Tex. Crim.
App. 1996); Winkley v. State, 123 S.W.3d 707, 711 (Tex. App.—Austin 2003, no pet.). We will
exercise our fact jurisdiction “only to prevent a manifestly unjust result.” Winkley, 123 S.W.3d at
711 (citing Clewis, 922 S.W.2d at 135). It is for the finder of fact to resolve evidentiary conflicts,
evaluate witness credibility, and determine the weight to be given the evidence. Id. “Any
inconsistencies in the evidence should be resolved in favor of the verdict.” Id. (citing Moreno v.
State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988)).
Y.G. testified that Gonzalo, whom she identified at trial as appellant, came into the
room she shared with her cousins one night and touched her vagina and later touched or attempted
to touch her chest. She identified her assailant by name, stating he was a friend of her father’s who
20
lived in Perez’s house and laid carpet and had a daughter named K. Negrete’s, Cantu’s, and Nauert’s
testimony about Y.G.’s statements to them was consistent with Y.G.’s trial testimony. Medical
evidence did not prove assault had occurred, but neither did it disprove an assault. Although there
was testimony that Mona was thinner than appellant, the evidence does not show that Y.G.’s
description of her abuser as tall, skinny, and with short hair could not also apply to appellant.
Although appellant attempted to raise questions as to the credibility of Y.G.’s testimony by
emphasizing inconsistencies in her statements and attempted to establish a defense of mistaken
identity, the contrary evidence is not so strong as to outweigh the evidence supporting the jury’s
verdict. See id. We hold that the evidence is factually sufficient to support the convictions.
Conclusion
We have considered and overruled all seven of appellant’s points of errors. We
affirm the judgments of conviction.
__________________________________________
David Puryear, Justice
Before Chief Justice Law, Justices B. A. Smith and Puryear
Affirmed
Filed: September 23, 2005
Do Not Publish
21