Saul Sanchez-Hernandez v. State ( 2013 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
________________________
No. 07-11-0474-CR
________________________
SAUL SANCHEZ-HERNANDEZ, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 69th District Court
Sherman County, Texas
Trial Court No. 915, Honorable Ron Enns, Presiding
April 9, 2013
MEMORANDUM OPINION
Before Quinn, C.J. and Campbell and Pirtle, JJ.
Appellant Saul Sanchez-Hernandez appeals from his jury conviction of the
offense of continuous sexual abuse of a child1 and the resulting sentence of twenty-five
years of imprisonment. Through six issues, appellant contends the trial court erred. We
will affirm the judgment of the trial court as modified herein.
1
Tex. Penal Code Ann. § 21.02 (West 2011).
Background
In February 2010, law enforcement officers received a report of sexual abuse by
appellant concerning a female child, S.C., then fourteen years old. Appellant is not
S.C.’s biological father, but appellant and S.C.’s mother were married for twelve years.
They have three children together, two girls, G.S., who was then nine years old and
A.S., then four, and a boy, J.S., then ten years old. Officers scheduled forensic
interviews and SANE exams for all four children. After those interviews and exams,
appellant was arrested for continuous sexual abuse.
The SANE nurse, Becky O’Neal, testified at trial to her examination of each of the
children. Her reports, which include statements made to her by each of the children,
were also admitted at trial. O’Neal testified she found two healed tears on S.C.’s
hymen, caused by penetration of her female sexual organ. G.S. and A.S. each also had
healed tears to their hymens and O’Neal noted immediate dilation of the anus of A.S.,
which O’Neal said indicated multiple penetrations of her anus.
S.C.’s statement to O’Neal included allegations that appellant touched her
“private” with his hands and “sometimes it hurts.” She also stated appellant “would rub
against my butt with his dick, it felt hard, our clothes were on.” She further stated
appellant touched her “boobs” on her skin with his hands. The statement includes also
the allegation S.C.’s brother J.S. “puts his dick in my private, he’s done it lots of times.
He learned it from my dad.” In her trial testimony, S.C. said appellant once “stuck his
finger inside” her sexual organ, and that he “many times” touched her without sticking
his finger inside. On cross-examination, S.C. admitted she liked her mother better than
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appellant and that appellant disciplined her. However, confronted with the possibility
that she was lying about the allegations against appellant, she reaffirmed appellant
touched her.
J.S.’s statement indicated appellant hit him with his hands and a belt, made his
nose bleed, and made him “have sex” with S.C. He also said he saw appellant touch all
of his sisters.
Appellant testified, denying each of the allegations against him.
Analysis
Sufficiency of the Evidence
By appellant’s first two issues, he challenges the sufficiency of the evidence to
support his conviction. He presents three arguments, two focusing on the periods of
time alleged in the indictment, the third focusing on a contention S.C.’s and J.S.’s
allegations were fabricated and untrue.
Applicable Law
In evaluating challenges to the sufficiency of the evidence, we consider all the
evidence in the light most favorable to the verdict. Jackson v. Virginia, 443 U.S. 307,
319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979); Brooks v. State, 323 S.W.3d 893,
895 (Tex.Crim.App. 2010) (plurality op.). If, from the evidence viewed in that light, a
rational factfinder could have found the essential elements of the offense true beyond a
reasonable doubt, then the evidence is sufficient to support the verdict. Jackson, 443
U.S. at 319. The jury is free to believe or disbelieve all or any part of any witness's
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testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim.App. 1986). We resolve any
inconsistencies in the testimony in favor of the verdict. Curry v. State, 30 S.W.3d 394,
406 (Tex.Crim.App. 2000). We also defer to the jury’s determination of the weight to be
given contradictory evidence. Johnson v. State, 23 S.W.3d 1, 9 (Tex.Crim.App. 2000).
The jury is permitted to draw reasonable inferences from basic facts to ultimate facts.
Hooper v. State, 214 S.W.3d 9, 13 (Tex.Crim.App. 2007). Circumstantial evidence is as
probative as direct evidence in establishing the guilt of an actor. Clayton v. State, 235
S.W.3d 772, 778 (Tex.Crim.App. 2007); Hooper, 214 S.W.3d at 13.
The sufficiency of the evidence is measured by the elements of the offense as
defined by the hypothetically correct jury charge for the case, not the charge actually
given. Hardy v. State, 281 S.W.3d 414, 421 (Tex.Crim.App. 2009); Malik v. State, 953
S.W.2d 234, 240 (Tex.Crim.App. 1997).
The testimony of a victim, standing alone, even when the victim is a child, is
sufficient to support a conviction for sexual assault. Tex. Code Crim. Proc. Ann. art.
38.07 (West 2005). Ruiz v. State, 891 S.W.2d 302, 304 (Tex.App.—Fort Worth 1994,
pet. ref’d); Weeks v. State, Nos. 07-09-077-CR, 07-09-078-CR, 07-09-079-CR, 07-09-
080-CR, 2010 Tex.App. LEXIS 5695 (Tex.App.—Amarillo July 20, 2010, pet. ref’d)
(mem. op., not designated for publication).
A person commits the offense of continuous sexual abuse of a child if: "(1) during
a period that is 30 or more days in duration, the person commits two or more acts of
sexual abuse, regardless of whether the acts of sexual abuse are committed against
one or more victims; and (2) at the time of the commission of each of the acts of sexual
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abuse, the actor is 17 years of age or older and the victim is a child younger than 14
years of age." Tex. Penal Code Ann. § 21.02 (West 2011). If a jury is the trier of fact, as
here, members of the jury are not required to agree unanimously on which specific acts
of sexual abuse were committed by the defendant or the exact date when those acts
were committed. Tex. Penal Code Ann. § 21.02(d) (West 2011). The jury need only
agree unanimously that the defendant, during a period that is 30 or more days in
duration, committed two or more acts of sexual abuse. Id. Conviction is permitted only
if all elements of the offense occurred on or after September 1, 2007. Act of May 18,
2007, 80th Leg., R.S., ch. 593, § 4.01(a), 2007 Tex. Gen. Laws 1120, 1148.
Thus, to convict appellant, the State was not required to prove the exact dates of
the acts of sexual abuse, but the jury must have found that appellant committed at least
two acts of sexual abuse over a period of 30 or more days. Tex. Penal Code Ann. §
21.02(d) (West 2011); Smith v. State, 340 S.W.3d 41, 48 (Tex.App.—Houston [1st Dist.]
2011, no pet.) (statute requires proof “the last act of sexual abuse occur[red] on at least
the 29th day after the day of the first act”); Williams v. State, 305 S.W.3d 886, 889
(Tex.App.—Texarkana 2010, no pet.) (listing elements of offense).
Application
The indictment alleged appellant committed acts of indecency involving genital
contact against all four children.2 Most of the evidence concerned acts committed
2
See Tex. Penal Code Ann. § 21.02(c)(2) (listing manner of indecency with a
child among acts of sexual abuse); § 21.11(a)(1) (describing manner of indecency with
child); § 21.11(c) (defining “sexual contact”) (West 2011).
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against S.C. By his first argument, appellant contends the evidence was insufficient to
establish that one or more of the acts of sexual abuse occurred “on or about February 9,
2008 through December 31, 2009,” as the indictment alleged. Appellant specifically
argues no evidence showed when the single instance of digital penetration of S.C.
occurred.
Typically, dates alleged in an indictment are an approximation that allow the
State to prosecute a defendant for acts occurring within the limitations period. Sledge v.
State, 953 S.W.2d 253, 256 (Tex.Crim.App.1997); Addicks v. State, 15 S.W.3d 608, 611
(Tex.App.—Houston [14th Dist.] 2000, pet. ref'd). The "on or about" language of an
indictment allows the State to prove a date other than the one alleged in the indictment
as long as the date is anterior to the presentment of the indictment and within the
statutory limitations period. Id.; see Thomas v. State, 753 S.W.2d 688, 693
(Tex.Crim.App.1988) ("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."). No statutory
limitations period applies to the offense of continuous sexual abuse. Tex. Code Crim.
Proc. Ann. art. 12.01(1)(D) (West 2011); Smith, 340 S.W.3d at 48.
As noted, the statutory requirement is for proof showing commission of two or
more acts of sexual abuse over a period of 30 or more days. Smith, 340 S.W.3d at 48.
While we agree with appellant that the evidence does not establish the date of the
instance of digital penetration to which S.C. testified, proof of the date of that act was
not required.
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By his second argument, appellant contends there was insufficient evidence
allowing the jury to conclude the acts of sexual abuse occurred over a period of 30 days
or more. He acknowledges that if the jury believed the testimony of S.C. and J.S., it
properly could have concluded that the acts to which they testified occurred more than
once, but argues nothing shows they took place over the period required by the statute.
Both J.S. and S.C. testified that their first sex act, performed at appellant’s
insistence, occurred when J.S. was 8 years old. S.C.’s statement to O’Neal said their
last sexual contact was in December 2009, when J.S. was 10 years old. That also was
the month appellant and his wife separated, and appellant left the house. In addition to
the act of digital penetration, S.C. told the jury appellant touched her genitals “many
times.” J.S.’s statement to O’Neal, given in February 2010, includes the statement, “My
dad touches all my sisters too. I seen him do it.” Nothing about the children’s
statements suggests that all the acts of sexual abuse they described occurred within
any 30-day period, and those involving J.S. and S.C. clearly were described as
occurring over a longer period. We find a rational juror, hearing all the testimony, would
conclude the acts of sexual abuse occurred over a substantial period of time.
Construed in the light most favorable to the verdict, the testimony permitted the jury to
infer beyond reasonable doubt that the instances of sexual abuse occurred over a
period of 30 days or more. Smith, 340 S.W.3d at 48. See also McGough v. State, No.
11-10-00073-CR, 2012 Tex.App. LEXIS 1669, at *21-22 (Tex.App.—Eastland March 1,
2012, no pet.) (mem. op., not designated for publication) (finding evidence sufficient to
allow jury to reasonably infer appellant committed more than one act of sexual abuse
during a period that was 30 or more days in duration when the victim testified the first
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incident occurred in August 2007, the last on November 16, 2007, and did not specify
the dates of any other sexual assaults but said they occurred for “quite some time”);
Williams, 305 S.W.3d at 889-90 (similar analysis).
In his third argument, appellant points to numerous inconsistencies among the
versions of events the children gave during their forensic interviews at a child advocacy
center, and among the versions the children gave the forensic interviewer, those
reflected in the histories taken from the children by the SANE nurse, and those heard
during their trial testimony.
Evidence showed S.C. made her outcry shortly after appellant and her mother
separated, and there was evidence from which the jury could have concluded that the
mother was motivated to pursue the accusations against appellant because of issues in
their divorce. As noted, S.C. admitted she liked her mother better than appellant and
that appellant disciplined her. There also was evidence of attempts by other family
members to influence the children. Pointing to the inconsistencies in the testimony and
the evidence of coaching, appellant argues a rational finder of fact must maintain a
reasonable doubt as to the truth of their allegations against him.
The State counters that inconsistencies like those encountered in this record are
to be expected, and are not indications of fabrication. The State also points to the
evidence of penetration present on S.C. and A.S. We note also that S.C. was
effectively cross-examined and, when confronted directly with a challenge to the
truthfulness of her testimony, insisted appellant had touched her genitals. During his
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testimony, J.S. also told the jury he had once witnessed appellant touch S.C.’s private
parts. He also was effectively cross-examined.
The jury had the evidence before it; it was that body’s task to decide whether the
children were being truthful. Tex. Code Crim. Proc. Ann. art. 38.07 (West 2005);
Hammer v. State, 296 S.W.3d 555, 568 (Tex.Crim.App. 2009). Appellant’s contention
of fabrication does not explain the findings of the SANE nurse that are consistent with
sexual abuse, including penetration. The jury is the sole judge of the credibility of the
witnesses and the weight to be given their testimony. Tex. Code Crim. Proc. Ann. art.
36.13 (West 2007); art. 38.04 (West 1979); Sharp, 707 S.W.2d at 614. S.C. was fifteen
by the time of trial. As the sole judge of their credibility, the jury was free to believe S.C.
and J.S.’s trial testimony that appellant sexually abused S.C. and forced sexual contact
between J.S. and his sister, and to disbelieve appellant’s testimony denying such acts.
Sharp, 707 S.W.2d at 614.
Viewed in the light most favorable to the verdict, the evidence is sufficient to
establish that appellant committed at least two acts of sexual abuse against the children
over the period required by statute. We overrule appellant’s first two issues.
Motion for Notice of Accusations and Motion to Quash Indictment
In appellant’s third and fourth issues, he argues the trial court erred in denying
two pre-trial motions he filed. Both motions addressed the asserted failure of the
indictment to allege the specific acts of abuse against which appellant was to prepare
his defense.3 He argues the indictment was insufficient to put him on notice of the
3
The indictment provided:
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particular offense with which he was charged. Tex. Code Crim. Proc. Ann. art. 21.11
(West 2011).
The sufficiency of an indictment is a question of law. State v. Moff, 154 S.W.3d
599, 601 (Tex.Crim.App. 2004). Therefore, we review de novo a trial court's ruling on a
motion to quash an indictment. Id. An indictment is sufficient when it charges the
commission of the offense in ordinary and concise language in such a manner as to
enable a person of common understanding to know what is meant, and with that degree
of certainty that will give the defendant notice of the particular offense with which he is
charged. Tex. Code Crim. Proc. Ann. art. 21.11 (West 2011).
The right to notice is set forth in both the United States and Texas Constitutions.
See U.S. CONST. amend. VI; Tex. Const. art. I, § 10; Moff, 154 S.W.3d at 601.
Accordingly, the charging instrument must be specific enough to inform the accused of
the nature of the accusation against him so that he may prepare a defense. Moff, 154
S.W.3d at 601. "An indictment is generally sufficient as long as it tracks the language of
a penal statute that itself satisfies the constitutional requirement of notice." Lawrence v.
State, 240 S.W.3d 912, 916 (Tex.Crim.App. 2007).
Saul Sanchez-Hernandez…did then and there, during a period that was 30 or
more days in duration, to-wit: from on or about February 9, 2008 through December 31,
2009, when the defendant was 17 years of age or older, commit two or more acts of
sexual abuse against children younger than 14 years of age, namely: then and there,
with the intent to arouse or gratify the sexual desire of said defendant, intentionally or
knowingly engage in sexual contact with [S.C.] or [G.S.] or [A.S.] or [J.S.] by touching
the genitals of [S.C.] or [G.S] or [A.S.] or [J.S.], children younger than 17 years and not
the spouse of the defendant.
10
Appellant’s argument relies on Moff, 154 S.W.3d at 601, Swabado v. State, 597
S.W.2d 361 (Tex.Crim.App. 1980), and Amaya v. State, 551 S.W.2d 385
(Tex.Crim.App. 1977). We find no support for appellant’s position in these cases. Each
of them involved charges of misconduct occurring in some transactions during periods
of time in which the defendant conducted many transactions. See Moff, 154 S.W.3d at
603 (finding it unreasonable to require defendant, a chief appraiser, to prepare defense
for each of the credit card and cash transactions made during the seven-year period
named in indictment); Swabado, 597 S.W.2d at 364 (because defendant employed
numerous staff nurses during relevant period, State was obligated to inform her of
names and dates of false entries, in prosecution for government record offense); and
Amaya, 551 S.W.2d at 387 (finding because defendant was required to make many
statements to the Department of Public Welfare, she was entitled to know which
statements the State alleged were false). The courts found the defendants were
entitled to some notice as to which transactions, out of many, the State considered
unlawful. Appellant can claim no such hindrance to preparation of his defense.
Appellant was not required to sort through instances of lawful conduct, seeking to
ascertain which acts of sexual abuse of his children the State considered unlawful.
There are no lawful acts of sexual abuse of a child.
The indictment tracks the applicable statutory language by alleging each element
of the offense of continuous sexual abuse of a child. Tex. Penal Code Ann. § 21.02(b)
(West 2011). The indictment also alleges the specific acts committed by appellant that
constitute “acts of sexual abuse” under the statute. Tex. Penal Code Ann. § 21.02(c)
(West 2011). Cf. Schrecengost v. State, Nos. 02-12-00060-CR, 02-12-00061-CR, 2013
11
Tex.App. LEXIS 1728, at *7-8 (Tex.App.—Fort Worth Feb. 21, 2013, no. pet. h.) (mem.
op., not designated for publication) (finding defendant received, from indictments and
other pretrial filings, notice of specific acts of sexual abuse alleged by State). We
conclude the indictment here provided adequate notice of the offense with which
appellant was being charged to enable him to prepare a defense. Finding the trial court
thus did not err in denying appellant’s two motions, we resolve appellant’s third and
fourth issues against him.
Admission of Extraneous Offense
In appellant’s fifth issue, he complains of testimony by S.C. describing an
extraneous offense not included in a notice from the State. See Tex. R. Evid. 404(b).
Appellant argues he filed a motion requesting notice of any extraneous offenses to be
used during trial but the State did not respond. Nevertheless, during S.C.’s testimony,
the State asked if appellant threatened her mother with anything other than his hands.
Appellant objected that this was an “extraneous offense or going into the character of
my client” but did not object on the basis of lack of notice. The trial court overruled
appellant’s objection. S.C. then testified, with no further objection from appellant, she
saw appellant place a gun under her mother’s chin.
The State contends appellant’s complaint on appeal was not preserved for our
review, and we must agree. Appellant did not make the trial court aware he was
objecting to the failure of the State to include appellant’s act in a Rule 404(b) notice.
See Tex. R. App. P. 33.1(a); Brown v. State, 880 S.W.2d 249, 252 (Tex.App.—El Paso
1994, no pet.) (holding appellant failed to preserve his failure-to-notice complaint where
12
"defense counsel did not object that the State failed to give timely notice of its intent to
use" certain extraneous misconduct); Curcru v. State, No. 13-08-00734-CR, 2010
Tex.App. LEXIS 9748, at *8-9 (Tex.App.—Corpus Christi Dec. 9, 2010, no pet.) (mem.
op., not designated for publication) (noting same). We overrule appellant’s fifth issue.
Mistake in Written Judgment
In appellant’s last issue, he points out a discrepancy in the written judgment of
conviction. Page one of the judgment correctly lists “Richard Gaida” as the jury
foreperson and shows he signed the verdict form in that capacity. The second page of
the judgment, setting out the punishment verdict, however, lists another individual as
the foreperson, an individual whose name does not appear on the list of jurors in the
record. Appellant argues the wrong name appearing at one location in the judgment
makes the judgment invalid, requiring reversal.
Noting that the name of the jury foreperson is not among the items of information
statutorily required in a judgment, see Tex. Code Crim. Proc. Ann. art. 42.01 (West
2011), the State suggests that any action by this court should be limited to reforming the
judgment to correct the erroneous entry. We agree. The proper remedy to correct a
mistake like this in the judgment is reformation of the judgment, not reversal of the
conviction. Tex. R. App. P. 43.2(b); French v. State, 830 S.W.2d 607, 609
(Tex.Crim.App. 1992) (court has authority to reform judgments and correct
typographical errors to make the record speak the truth, and may act sua sponte to do
so). We overrule appellant’s last issue, but will modify the judgment.
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Conclusion
Having resolved each of appellant’s issues against him, we modify the judgment
of the trial court to show Richard Gaida as foreperson of the jury on page 2 of the
judgment, and affirm the judgment as modified.
James T. Campbell
Justice
Do not publish.
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