Jesus Antonio Reydom v. State ( 2020 )

AFFIRMED as MODIFIED and Opinion Filed December 28, 2020
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-19-01486-CR
JESUS ANTONIO REYDOM, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 7
Dallas County, Texas
Trial Court Cause No. F16-40079-Y
MEMORANDUM OPINION
Before Justices Partida-Kipness, Pedersen, III, and Evans
Opinion by Justice Evans
Jesus Antonio Reydom appeals his conviction for aggravated sexual assault
of a child younger than fourteen years of age. After finding appellant guilty, the jury
assessed punishment at eighteen years in prison. In nine issues, appellant contends
the evidence is insufficient to support his conviction; the trial court erred by
overruling his objections to the admission of certain evidence and to a portion of the
State’s closing argument; his due process rights were violated when he was tried on
an indictment that was not amended; and the judgment should be modified to reflect
the correct offense. We modify the judgment to reflect appellant was found guilty of
aggravated sexual assault of a child under section 22.021 of the penal code and, as
modified, we affirm.
Background
Dolores Montes and David Gomez began dating in 2015. They lived together,
along with several of their children, in his house in Mesquite. Appellant was David’s
good friend who often visited and sometimes stayed over at the house. In December
2015, Dolores and her daughters moved out of the house to a new residence in
Lancaster.
On September 1, 2016, Dolores was having dinner with her daughters, Denise,
CM, and TM. It was Denise’s nineteenth birthday. When Dolores left the table,
eleven-year-old TM told Denise she had been sexually abused by appellant. Denise
found her mother and told her appellant had “been touching” TM. Dolores called
David and told him they “needed to get [appellant] out of there.” Dolores told TM
she was going to call the police, but TM said she was afraid and did not want to talk
about it. Nevertheless, several days later, Dolores contacted the police and took TM
to the Dallas Children’s Advocacy Center for a forensic interview.
Although initially charged with continuous sexual abuse of a young child,
appellant was tried for and convicted of aggravated sexual assault of a child under
fourteen years of age. The jury assessed punishment at eighteen years in prison. This
appeal followed.
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Indictment
In his ninth issue, appellant contends the trial court erred by proceeding to
trial as if the indictment had been amended. He claims he was denied due process of
law by being convicted of an offense “to which the indictment was not amended.”
The indictment alleged that appellant:
did then and there intentionally and knowingly, during a period that was
30 or more days in duration, when the defendant was 17 years of age or
older, commit two or more acts of sexual abuse against [TM], a child
younger than 14 years of age, hereinafter called complainant, namely
by THE PENETRATION OF THE COMPLAINANT’S FEMALE
SEXUAL ORGAN BY THE DEFENDANT’S FINGER.
Seven months before trial, the State filed a motion to abandon the words “during a
period that was 30 or more days in duration, when the defendant was 17 years of age
or older” and “two or more acts of.” Appellant did not file a response or otherwise
object to the motion.
Appellant did not file any pretrial motions regarding the indictment before the
case proceeded to trial in November 2019. When appellant was arraigned in court
on aggravated sexual assault of a child, he entered a “not guilty” plea. The attorney
for the State then informed the trial court “just to note it for the record, the defendant
was charged with a [sic] continuous sexual abuse of a child. Prior to my taking over
the case, the indictment was amended to reflect what I just read, which is the
aggravated sexual assault charge.” Appellant did not object or lodge a complaint at
this time. Later, during voir dire, appellant’s counsel read the indictment for
aggravated sexual assault to the venire panel and relied on its language, specifically
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that it alleged he committed “sexual abuse against [T.M.] a child younger than 14
years of age . . . by the penetration of the female sexual organ.”
Despite opportunities to do so, appellant did not timely object to the State’s
motion to abandon language in the indictment. Under these circumstances, we
conclude he waived any complaint. See TEX. CODE CRIM. PROC. ANN. art. 1.14 (if
defendant does not object to defect, error, or irregularity of form or substance in
indictment before date on which trial on merits begins, he waives and forfeits right
to object and may not raise objection on appeal or in any other postconviction
proceeding); Jenkins v. State, 592 S.W.3d 894, 902 (Tex. Crim. App. 2018). We
overrule appellant’s ninth issue.
Sufficiency of the Evidence
In his first issue, appellant claims the evidence is insufficient to support his
conviction because there is no evidence to corroborate TM’s accusations.
When reviewing a challenge to the sufficiency of the evidence to support a
criminal conviction, the standard of review we apply is whether, after reviewing the
evidence in the light most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt. Murray
v. State, 457 S.W.3d 446, 448 (Tex. Crim. App. 2015) (quoting Jackson v. Virginia,
443 U.S. 307, 319 (1979)). “This standard tasks the factfinder with resolving
conflicts in the testimony, weighing the evidence, and drawing reasonable inferences
from basic facts.” Id. On appeal, we determine whether the necessary inferences are
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reasonable based upon the combined and cumulative force of all the evidence when
viewed in the light most favorable to the verdict. Id.
A person commits aggravated sexual assault of a child by intentionally or
knowingly causing the penetration of the sexual organ of the child by any means,
and the child is younger than fourteen years of age. TEX. PENAL CODE ANN. §
22.021(a)(1)(B)(i), (2)(B). Contrary to appellant’s complaint, the testimony of a
child victim alone is sufficient to support a conviction for aggravated sexual assault
of a child. Tear v. State, 74 S.W.3d 555, 560 (Tex. App.—Dallas 2002, pet. ref’d)
(child victim’s testimony sufficient to support conviction for aggravated sexual
assault); Villarreal v. State, 470 S.W.3d 168, 170 (Tex. App.—Austin 2015, no pet.);
see also TEX. CODE CRIM. PROC. ANN. art. 38.07 (conviction supportable on
uncorroborated testimony of victim of sexual offense if victim informed any person,
other than defendant, of alleged offense within one year after date on which offense
was alleged to have occurred).
Denise Villagomez testified she is one of Dolores’s eight children. Her sister,
TM, is the youngest. On September 1, 2016, Denise was having dinner with her
mother and two youngest sisters when TM told her appellant had touched her.
Denise, in turn, told her mother. Dolores then called David and told him.
Dolores testified she met and began dating David in 2015. She met appellant
because he was a friend of David’s. In fact, David and appellant were so close they
referred to each other as brothers. In the middle of 2015, Dolores and several of her
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daughters moved in with David, but by the end of the year, she and her daughters
moved to Lancaster. In August 2016, Dolores’s daughter, Anissa, went to the
hospital to have her baby. About the same time, David was arrested. Dolores needed
help with her television-installation business, so David told her to call appellant.
Because appellant was a family friend, a person she trusted to be around her kids,
and someone they “all loved . . . very much,” she drove to Quinlan to pick him up.
Dolores could not remember the exact date that she did so.
On September 1, Dolores went to dinner with Denise, CM, and TM to
celebrate Denise’s birthday. Later that evening, Denise told her appellant had been
touching TM. Dolores called David and later contacted the police. Although TM did
not tell her any specific details, Dolores said she believed TM because “[s]he is very,
very, very honest. . . [and] always has been.”
TM testified she was born on April 19, 2005; at the time of trial, she was
fourteen years old and lived with her mother, Dolores, and her sister, CM. Her older
sister, Denise, lived with them previously but recently had moved out. According to
TM, she is close to both Denise and CM. TM met appellant through David, her
mother’s former boyfriend. She and appellant used to hang out together, and at one
point, she considered him her best friend. But that changed when appellant began
touching her.
At trial, TM detailed two instances when appellant touched her. The first was
when she and appellant were at the Lancaster home in the upstairs room she shared
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with CM, watching a scary movie. They were lying on the floor while CM was on
her bed, watching a different movie on her phone. Appellant put his hands under the
jean shorts TM was wearing, touching her “private area.” He touched the inside of
her vagina and “started rubbing it” with a circular motion. She said it made her feel
disgusted; she stood up and got on her bed to get away from him. Appellant followed
her and tried to do it again, but she moved his hand and pulled the bed cover over
her body.
Another time, TM was downstairs, watching a movie. Her mom and David
were in her mom’s room which looked out toward the television. TM was lying on
the floor with a big purple blanket covering her. Appellant laid down next to TM
and “went under [the] cover.” Although she moved away from him, appellant put
his hands in her pants and touched the inside of her vagina with his finger. TM froze
and did not know what to do. Appellant moved his hand in a circular motion for “two
or three minutes.” She then stood up and went into the bathroom where she stayed
until the movie ended.
Finally, TM described a time when she, appellant, David’s daughter, RG, and
several other family members were at the hospital where TM’s sister, Anissa, was
having a baby. It was late, and RG wanted to go home. When appellant said he
wanted to leave as well, TM felt she needed to go to protect RG who was younger
than TM. Once they got home, RG went into a bedroom to play on TM’s phone. TM
laid down on the floor in front of the television. Appellant laid down next to her so
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TM turned on her side. According to TM, she felt something on her back. Appellant
told her “It’s hard[,]” and tried to grab her hand. She pulled her hand away because
she did not want to touch his penis. Appellant told her he would get in a lot of trouble
if she told anyone what had happened. Although TM said she could not remember
the order in which the three incidents occurred or the specific dates when appellant
touched her vagina, she said the time appellant did not touch her vagina but tried to
make her touch his penis occurred on August 21, 2016, when her nephew was born.
After hearing this testimony as well as that of other witnesses, including the
outcry witness, TM’s therapist, and Detective Jason Rohack, the jury found appellant
guilty. The jury, as factfinder, was able to assess the credibility and demeanor of the
witnesses and to resolve any conflicts in the evidence. More importantly, the jury
was able to assess TM’s credibility and demeanor when she testified. Clearly, the
jury found TM credible. Viewing the evidence in the light most favorable to the
verdict, we conclude a reasonable factfinder could have found appellant guilty of
aggravated sexual assault of TM. See Tear, 74 S.W.3d at 560 (child victim’s
testimony alone sufficient to support conviction). We overrule appellant’s first issue.
Juror No. 1
In his second and third issues, appellant contends the trial court erred by
overruling his objection to Juror No. 1, Kassa Wondimu. He claims the trial court’s
action resulted in the denial of his constitutional right to a trial by twelve jurors.
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On the first day of trial, the trial court informed the venire of the qualifications
required to serve as a juror, including the ability to read and write the English
language. When the court asked if everyone was able to read and write English, a
woman raised her hand and said she was not following what was being said. The
trial court then asked, “Anyone else who struggles with the English language or
comprehension and maybe won’t be able to follow all the evidence in this case?” No
one responded. The woman was subsequently struck, and the jury panel, including
Wondimu, was sworn in.
The following morning, the bailiff told the trial court that Wondimu had
“language issues.” In the presence of appellant and the State, the trial court
questioned Wondimu about his language skills; Wondimu said he “can listen and
understand, but to respond to something is hard.” He further clarified that giving an
opinion is difficult because he struggles with “using the proper language. The verbs.
. . I’m not perfect. But if you want me, I can try.” Responding to the State’s
questions, he said he understood the questions, the discussion of the law, the
presumption of innocence, and the burdens discussed during voir dire, but that it
would be hard to make a statement. He continued:
Conversation, like, when you have a – like, making statements. Like, if
you ask me something about the things, explain this thing and that
situation, and that would be a little bit harder for me, I don’t know the
language. This is my second language. . . My accent is one [issue], and
the other thing, like, if you ask me some question, to explain – not
translate it or say it in another way, I can’t do that. That is what I am
trying to say.
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The court then said, “I think what Mr. Wondimu is saying is that he can
understand everything that we’re talking about, the questions and the answers, but
he’s worried about his own communication. Is that correct?” Wondimu agreed,
adding that he felt comfortable giving his opinion and explaining to the other jurors
what he thought about a specific piece of evidence. Although appellant objected on
the ground that Wondimu is “not fluent . . . which would cause him to misunderstand
the basis of what the jury is supposed to do,” Wondimu said it was mostly his accent
that he was concerned about and that he reads, writes, and understands the English
language. The trial court overruled appellant’s objection, and Wondimu remained
on the jury.
Article 35.16 of the code of criminal procedure provides the grounds on which
parties may assert a challenge for cause as to a potential juror. TEX. CODE CRIM.
PROC. ANN. art. 35.16; Butler v. State, 830 S.W.2d 125, 130 (Tex. Crim. App. 1992).
When a prospective juror is challenged on one of these grounds, the trial court
determines the capability or fitness of the prospective juror. TEX. CODE CRIM. PROC.
ANN. art. 35.21; see Phillips v. State, 656 S.W.2d 219, 220 (Tex. App.—Fort Worth
1983, no pet.). If the court determines that the prospective juror is incapable or unfit,
the trial court should excuse the juror. See Saldivar v. State, 980 S.W.2d 475, 485
(Tex. App.—Houston [14th Dist.] 1998, pet. ref’d). A juror is incapable or unfit and
may be challenged for cause based on the juror’s inability to read and write. TEX.
CODE CRIM. PROC. ANN. art. 35.16(11). Encompassed in this specific challenge is a
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juror’s inability to understand English. Montoya v. State, 810 S.W.2d 160, 170 (Tex.
Crim. App. 1989) (juror’s trouble understanding English is excludable ground under
art. 35.16(a)(11)). Because this challenge is not an absolute disqualification, it must
be raised before the jury is empaneled and sworn in; a party forfeits the right to
complain if it is not raised during voir dire. See Webb v. State, 232 S.W.3d 109, 112
(Tex. Crim. App. 2007) (holding that absent an absolute disqualification, challenge
for cause is forfeited if not asserted); TEX. CODE CRIM. PROC. ANN. art. 35.19
(absolute disqualifications are when juror “is subject to the second, third or fourth
cause of challenge” in article 35.16).
Appellant objected to Wondimu based on his fluency in the English language;
however, the trial court questioned Wondimu and, based on his answers and the
court’s own conversation with the juror, determined Wondimu could read, write, and
understand the English language. Given the record before us, the trial court did not
abuse its discretion in so concluding. See Webb, 232 S.W.3d at 112-13. We overrule
appellant’s second and third issues.
Evidence
In his fourth, fifth, and sixth issues, appellant contends the trial court erred by
overruling his objections to the admission of certain evidence.
We review a trial court’s decision to admit or exclude evidence under an abuse
of discretion standard. Rhomer v. State, 569 S.W.3d 664, 669 (Tex. Crim. App.
2019); Johnson v. State, 490 S.W.3d 895, 908 (Tex. Crim. App. 2016). The trial
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court abuses its discretion when it acts without reference to any guiding rules and
principles or acts arbitrarily or unreasonably. Rhomer, 569 S.W.3d at 669. We will
not reverse the trial court’s ruling unless it falls outside the zone of reasonable
disagreement. Johnson, 490 S.W.3d at 908.
Chart
In his fourth issue, appellant claims the trial court erred by overruling
appellant’s objection to State’s Exhibit 1, a general timeline of events. Appellant
argues the chart should not have been admitted because it had no probative value.
During its case-in-chief, the State created a timeline of certain events based
on the testimony of various witnesses:
 TM’s birthday (April 19, 2005)
 Dolores meets appellant (2015)
 Dolores/David: Mesquite (2015)
 move to Lancaster (Dec. 2015)
 appellant helps mom in Lancaster (2016)
 Bentley born (Aug. 2016)
 Denise’s birthday at Cicis (Sept. 1, 2016)
 Police called (Sept. 10, 2016)
 Forensic Interview (Oct. 11, 2016)
The State offered the chart as Exhibit 1 along with Exhibit 2, a “family tree”
with the names of Dolores, her family members, David, and appellant. Appellant
objected to Exhibit 1 as “hearsay,” “irrelevant,” and “meant to mislead the jury.”
The trial court overruled the objections and allowed both exhibits “for record
purposes.”
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Although appellant now assigns this ruling as error, we disagree. The trial
court may, in its discretion, allow the use of visual aids to illustrate witnesses’
testimony that is already before the jury. Clay v. State, 592 S.W.2d 609, 613 (Tex.
Crim. App. [Panel Op.] 1980); Baker v. State, 177 S.W.3d 113, 123 (Tex. App.—
Houston [1st Dist.] 2005, no pet.). In this case, Exhibit 1 was created in court as
witnesses testified, and it listed events based on specific testimony. Thus, the
contents of the list were already before the jury, and the chart was merely a visual
aid that depicted that testimony. We cannot conclude its admission was improper or
an abuse of discretion. See Clay, 592 S.W.2d at 613. We overrule appellant’s fourth
issue.
Outcry Witness
In his fifth issue, appellant argues the trial court erred by concluding the
forensic interviewer was the proper outcry witness, instead of Denise or Dolores.
Outside the jury’s presence, the trial court held a hearing to determine who
was the proper outcry witness. Denise, Dolores, and the forensic interviewer,
Bernadette Yupit-Martinez, were present and testified.
Denise said TM asked her what she would do if somebody was touching her.
When Denise asked who was touching her, TM said appellant. However, TM never
gave Denise any details.
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Dolores testified it was Denise, not TM, who told her appellant was touching
TM. According to Dolores, she did not ask TM any details, and TM did not tell her
anything about the incidents.
In contrast, Yupit-Martinez testified that when she conducted TM’s forensic
interview on October 11, 2016, TM discussed three distinct incidences when
appellant digitally penetrated her with his finger. Yupit-Martinez gave additional
details about TM’s disclosures. Yupit-Martinez said it was her understanding the she
was the first adult over eighteen to whom TM gave details on the sexual abuse.
At the conclusion of the hearing, appellant argued none of the witnesses were
appropriate outcry witnesses. The trial court disagreed and designated Yupit-
Martinez.
Although appellant now claims the trial court “improperly designated the
forensic interviewer rather than the sister or mother,” he specifically argued at the
hearing that neither the sister nor the mother was the appropriate outcry witness.
Having done so, he cannot complain on appeal that neither the sister nor the mother
was designated. See TEX. R. APP. P. 33.1; Swain v. State, 181 S.W.3d 359, 367 (Tex.
Crim. App. 2014) (issue on appeal not preserved when complaint does not comport
with trial objection).
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Expert Witness on Grooming
In his sixth issue, appellant complains about the trial court’s ruling on his
objection to therapist Tama Walley’s designation as an expert witness on
“grooming.” Specifically, appellant objected that she was not qualified.
Rule 702 provides:
A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of an opinion
or otherwise if the expert’s scientific, technical, or other specialized
knowledge will help the trier of fact to understand the evidence or to
determine a fact in issue.
TEX. R. EVID. 702. The rule was designed “to relax the traditional barriers to opinion
testimony.” Morris v. State, 361 S.W.3d 649 (Tex. Crim. App. 2011). There are
three requirements for the admission of expert testimony: (1) the witness qualifies
as an expert by reason of her knowledge, skill, experience, training, or education;
(2) the subject matter of the testimony is an appropriate one for expert testimony;
and (3) admitting the expert testimony will assist the factfinder in deciding the case;
these are commonly referred to as qualification, reliability, and relevance. Davis v.
State, 329 S.W.3d 798, 813 (Tex. Crim. App. 2010). “Because the possible spectrum
of education, skill, and training is so wide, a trial court has great discretion in
determining whether a witness possesses sufficient qualifications to assist the jury
as an expert on a specific topic in a particular case.” Rodgers v. State, 205 S.W.3d
525, 527–28 (Tex. Crim. App. 2006).
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Before the rule 705 hearing, Walley testified she has been a therapist at the
Children’s Advocacy Center for about four years. Prior to that, she was a school
counselor for four years and a teacher for nine years at the international school in
Bamako, Mali, West Africa. She has a bachelor’s degree in psychology, a master’s
degree in social work, and a clinical license to practice as a counselor/therapist. To
have a clinical license requires 3000 hours of supervision over a two-year period.
Walley is licensed and trained in trauma-focused cognitive behavioral therapy,
internal family systems therapy, and eye movement desensitization and reprocessing
therapy. She explained that she was specifically trained for “trauma, to work with
disassociation, to work with other things that come with complex trauma.” Her role
as a therapist encompasses the entire family because the whole family is affected.
Walley testified that perpetrators of child abuse are generally good at being
manipulative and deceptive. When the State asked about grooming, appellant
objected and asked to take Walley on voir dire. He then said, “I’ll withdraw that.”
Walley continued testifying about grooming and, after several minutes, appellant
objected to “the narrative response and to the witness testifying as an expert, to show
qualifications.” He then again asked to take Walley on voir dire which later turned
into a rule 705 hearing outside the jury’s presence.
During the hearing, appellant questioned Walley about the studies and
literature she relied on in forming her opinions. She explained that she was not doing
research or writing articles but had training in the dynamics of sexual abuse,
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including grooming. She was basing her opinion on her experience as a therapist
who had treated and counseled over 100 children and that grooming was part of
understanding sexual abuse and how it happens. At the conclusion of the hearing,
the trial court designated Walley as “an expert based on her education and experience
in that field.”
Appellant assigns this ruling as error. We disagree. Grooming evidence has
been presented in various court by numerous types of experts, including
psychiatrists, psychologists, therapists, social workers, and some people who work
in law enforcement. Morris, 361 S.W.3d at 665. The court of criminal appeals noted
a person can gain superior knowledge regarding the grooming phenomenon through
her experience with child-sex-abuse cases. Id. It is not necessary that the witness be
a psychiatrist or psychologist, but that she possess “superior knowledge covering the
behavior of offenders who sexually victimize children.” Id. Here, after Walley
testified about her training and experience with children who were victims of sexual
abuse, the trial court designated her an expert based on her education and experience.
We cannot conclude the trial court abused its discretion in doing so. See Rodgers,
205 S.W.3d at 527–28 (the trial court has great discretion in determining whether a
witness possesses sufficient qualifications to assist the jury as an expert on a specific
topic in a particular case). We overrule appellant’s sixth issue.
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Closing Argument
In his seventh issue, appellant argues the trial court erred by overruling his
objection to the prosecutor’s jury argument. Appellant contends the argument was a
comment on his failure to testify.
At closing, the prosecutor summarized the evidence, focusing on TM’s
testimony. In response, appellant emphasized inconsistencies in dates and focused
on TM’s inability at trial to remember dates or general timelines. He repeatedly
implored the jury to look at the “credibility of the witnesses.” During the State’s
final closing statement, the following occurred:
THE STATE: And the last thing that doesn’t make sense, she has
absolutely no motivation to lie. Because again, remember, we are not
talking about someone who she hated. We’re not talking about a
scenario where it’s a stepparent who disciplines her and she really
doesn’t like that. We’re not talking about a friend who takes her mom’s
attention away all the time. We’re talking about someone who she
called her best friend. Someone who was coming over to help her
mother at a time when her mother needed help, a time -- a person who
she said, “I really liked hanging out with him. It was really fun. He was
cool. We watched movies.” She had no motivation to make this up
about her best friend.
Who does have motivation to lie? Who is the only person in the
courtroom right now who has motivation to lie? The defendant.
DEFENSE: Your Honor, I’m going to object to that. It’s getting
into the Fifth Amendment.
THE COURT: Overruled.
THE STATE: She had --
DEFENSE: That’s improper jury argument.
THE COURT: Overruled.
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THE STATE: She has no motivation to lie. The only person who
has motivation to lie is the defendant.
DEFENSE: Same objection, Judge. I’ll have a running objection.
THE COURT: Overruled.
Proper jury argument consists of (1) a summary of the evidence; (2) a
reasonable deduction from the evidence; (3) an answer to the opponent’s argument;
or (4) a plea for law enforcement. Milton v. State, 572 S.W.3d 234, 239 (Tex. Crim.
App. 2019); Long v. State, 823 S.W.2d 259, 267 (Tex. Crim. App. 1991). The
purpose of closing argument is to facilitate the jury in properly analyzing the
evidence presented at trial so “it may arrive at a just and reasonable conclusion based
on the evidence alone, and not on any fact not admitted in evidence.” Milton, 572
S.W.3d at 239.
All defendants have a Fifth Amendment privilege not to testify, and neither
the trial judge nor the prosecution may comment on a defendant’s failure to testify.
See Cruz v. State, 225 S.W.3d 546, 548 (Tex. Crim. App. 2007). In determining
whether a prosecutor’s comment violated the Fifth Amendment, we view the
argument from the jury’s standpoint and resolve any ambiguities in favor of the
argument being permissible. Randolph v. State, 353 S.W.3d 887, 891 (Tex. Crim.
App. 2011). The “implication that the State referred to the defendant’s failure to
testify must be a clear and necessary one. If the language might reasonably be
construed as merely an implied or indirect allusion, there is no violation.” Id. The
test “is whether the language used was manifestly intended or was of such a character
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that the jury would necessarily and naturally take it as a comment on the defendant’s
failure to testify.” Id. When applying this standard, we analyze the context in which
the comment was made to determine whether the language used was of such
character. Id.
After reviewing the entire jury argument, we conclude the trial court’s rulings
were not an abuse of discretion. The prosecutor’s comments were not a clear
reference to appellant’s failure to testify, nor did they draw the jury’s attention to an
absence of evidence that could have been supplied only by appellant. See Brown v.
State, 92 S.W.3d 655, 667 (Tex. App.—Dallas 2002), aff’d, 122 S.W.3d 794 (2003).
Rather, they were in direct response to defense counsel’s argument that TM was not
credible, a theme that was repeated throughout his closing. See Davis v. State, 329
S.W.3d 798, 821 (Tex. Crim. App. 2010) (proper jury argument includes answer to
argument of opposing counsel). We overrule appellant’s seventh issue.
Judgment
In his eighth issue, appellant asks the Court to modify the judgment to show
he was convicted of aggravated sexual assault of a child, not continuous sexual
assault of a child. The State agrees that this Court should modify the judgment and
also asks the Court to modify the judgment to reflect the correct statute for the
offense.
We have the authority to modify an incorrect judgment where the necessary
data and information is available. See TEX. R. APP. P. 43.2(b); Bigley v. State, 865
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S.W.2d 26, 27–28 (Tex. Crim. App. 1993) (appellate courts have power to reform
judgments); Estrada v. State, 334 S.W.3d 57, 63 (Tex. App.—Dallas 2009, no pet.)
(“This Court has the power to modify an incorrect judgment to make the record
speak the truth when we have the necessary information to do so.”).
The verdict and the reporter’s record confirm the jury found appellant guilty
of aggravated sexual assault of a child. Thus, the appellate record supports the
corrections appellant seeks.
We sustain appellant’s eighth issue. We modify the trial court’s November
20, 2019 judgment by striking “SEXUAL ABUSE OF A CHILD CONTINUOUS:
VICTIM UNDER 14” and replacing it with “AGGRAVATED SEXUAL
ASSAULT OF A CHILD UNDER 14” as the “Offense for which Defendant
Convicted.” We also strike “21.02” and replace it with “22.021” under “Statute for
Offense.”
As modified, we affirm the trial court’s judgment.
/David Evans/
DAVID EVANS
Do Not Publish JUSTICE
TEX. R. APP. P. 47.2(b)
191486F.U05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
JESUS ANTONIO REYDOM, On Appeal from the Criminal District
Appellant Court No. 7, Dallas County, Texas
Trial Court Cause No. F16-40079-Y.
No. 05-19-01486-CR V. Opinion delivered by Justice Evans.
Justices Partida-Kipness and
THE STATE OF TEXAS, Appellee Pedersen, III participating.
Based on the Court’s opinion of this date, the judgment of the trial court is
MODIFIED as follows:
We strike “SEXUAL ABUSE OF A CHILD CONTINUOUS: VICTIM
UNDER 14” and replace it with “AGGRAVATED SEXUAL
ASSAULT OF A CHILD UNDER 14” as the “Offense for which
Defendant Convicted.”
We also strike “21.02” and replace it with “22.021” under “Statute for
Offense.”
As REFORMED, the judgment is AFFIRMED.
Judgment entered December 28, 2020
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