Summary
finding that sufficient evidence existed to support a conviction, the sentence was proper and no harmful error occurred
Summary of this case from Carnahan v. QuartermanOpinion
No. 13-03-155-CR
Memorandum Opinion Delivered and Filed June 2, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On appeal from the 347th District Court of Nueces County, Texas.
Before Justices HINOJOSA, YANEZ and CASTILLO.
MEMORANDUM OPINION
The indictment charged appellant Robert Narvell Carnahan with thirteen counts of various sexual offenses against his minor stepdaughters. A jury returned a guilty verdict on all counts and assessed punishment at fifteen years for each count of indecency and sexual assault, and forty years for each count of aggravated sexual assault. Carnahan presents twenty-four issues on appeal. We address these seriatim.
The two minor children were identified by pseudonyms "110194-010183" and "100195-042984."
For ease of reference, we adopt Carnahan's use of "older stepdaughter" and "younger stepdaughter," respectively.
See Act of May 29, 1993, 73rd Leg., R.S., ch. 900, § 1.01, sec. 21.11, 1993 Tex. Gen. Laws 3586, 3616, amended by Act of May 23, 2001, 77th Leg., R.S., ch. 739, 2001 Tex. Gen. Laws 1463, 1464 (current version at TEX. PEN. CODE ANN. § 21.11(a)(1) (Vernon 2003)).
Tex. Pen. Code Ann. 22.011(f) (Vernon 2003).
See Act of May 26, 1999, 76th Leg., R.S., ch. 417, § 2, 1999 Tex. Gen. Laws 2752, 2753, amended by Act of May 15, 2001, 77th Leg., R.S., ch. 459, § 5 (current version at TEX. PEN. CODE ANN. § 22.021 (Vernon Supp. 2004-05)).
I. COMPETENCY A. Inquiry or Hearing
By his first issue, Carnahan argues that the trial court had the duty to conduct a competency inquiry and hearing. The State responds that Carnahan waived error because defense counsel did not pursue competency or, alternatively, the evidence presented failed to raise the issue. In both Texas and the federal system, "it has long been accepted that a person whose mental condition is such that he lacks the capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing his defense may not be subjected to a trial." McDaniel v. State, 98 S.W.3d 704, 709 (Tex.Crim.App. 2003). The conviction of an accused person while he is legally incompetent violates due process. Id. Thus, to protect a criminal defendant's constitutional rights, a trial court must inquire into the accused's mental competence once the issue is sufficiently raised. Id. These due process standards are built into the Texas Code of Criminal Procedure. Id.; see TEX. CODE CRIM. PROC. Ann. art. 46B.001-.171 (Vernon Supp. 2004-05) ( formerly codified at TEX. CODE CRIM. PROC. Ann. art. 46.02 (Vernon 1979)). Former article 46.02 section 1A(a) provided that "[a] person is incompetent to stand trial if the person does not have: (1) sufficient present ability to consult with the person's lawyer with a reasonable degree of rational understanding; or (2) a rational as well as a factual understanding of the proceedings against the person." Act of June 14, 2001, 77th Leg., R.S. ch. 828, §§ 3, 4, 2001 Tex. Gen. Laws 1650, 1652, repealed by Act of May 14, 2003, 78th Leg., R.S. ch. 35, §§ 15, 16, 2003 Tex. Gen. Laws 57, 72 (current version at TEX. CODE Crim. PROC. ANN. art. 46B.001-.171 (Vernon Supp. 2004-05)). Former article 46.02 section 2 provided:(a) The issue of the defendant's incompetency to stand trial shall be determined in advance of the trial on the merits if the court determines there is evidence to support a finding of incompetency to stand trial on its own motion or on written motion by the defendant or his counsel filed prior to the date set for trial on the merits asserting that the defendant is incompetent to stand trial.
(b) If during the trial evidence of the defendant's incompetency is brought to the attention of the court from any source, the court must conduct a hearing out of the presence of the jury to determine whether or not there is evidence to support a finding of incompetency to stand trial.The difference between section 2(a) and section 2(b) is the timing. McDaniel, 98 S.W.3d at 710. In section 2(a), the issue of competency is raised before trial, while under section 2(b), the issue of competency is first raised at some point during the trial. Id. Thus:
(1) if a competency issue is raised by the defendant, any party, or the court; and
2) evidence of incompetency is brought to the attention of the trial court by the defendant, any party, or the court;
(3) of the type to raise a bona fide doubt in the judge's mind regarding the defendant's competency to stand trial; then
(4) the judge must conduct a Section 2 "competency inquiry" to determine if there is some evidence sufficient to support a finding of incompetence, and if there is,
(5) the judge must impanel a jury for a Section 4 "competency hearing."See McDaniel, 98 S.W.3d at 710-11. The requirements of each step must be fulfilled before moving on to the next. Id. at 711. A defendant is presumed competent to stand trial and shall be found competent to stand trial unless proved incompetent by a preponderance of the evidence. Act of June 14, 2001, 77th Leg., R.S. ch. 828, §§ 3, 4, 2001 Tex. Gen. Laws 1650, 1652 (repealed 2003). Whether an issue of incompetency exists at trial is left to the discretion of the judge. Ainsworth v. State, 493 S.W.2d 517, 521 (Tex.Crim.App. 1973). A section 2 or "competency" inquiry is required only if the evidence brought to the judge's attention raises a bona-fide doubt in the judge's mind about the defendant's competency to stand trial. McDaniel, 98 S.W.3d at 710. In this case, Carnahan's original defense counsel moved for a competency examination by an expert because "[t]here is an issue regarding whether [Carnahan] is 'competent' to stand trial." Defense counsel's affidavit filed in support of the motion states that (1) he knew Carnahan for ten years, (2) Carnahan was a lawyer with above average skill and intelligence, (3) Carnahan's conclusion that a document was exculpatory (when according to counsel it was not) "alone raises in [counsel's] mind the question of incompetency," (4) Carnahan's conduct "indicates an irrational lack of understanding of the proceedings against him and the uncontroverted facts surrounding the charges against him," and (5) Carnahan lacked "sufficient present ability to consult and assist in his defense." The defense argued the motion at a pre-trial hearing, reasserting the statements in the affidavit. The trial court ordered a psychiatric examination. At the same hearing, the trial court granted defense counsel's motion to withdraw based on his lack of experience in criminal cases. Further proceedings on the competency issue did not occur. Carnahan did not object to the trial court's proceeding with the trial. He testified at trial. During post-trial proceedings, both trial counsel, appointed after the withdrawal of initial counsel, testified they made the decision not to pursue the competency issue. Carnahan essentially argues that his motion and the trial court's ruling were sufficient to require further competency proceedings before trial. We conclude he forfeited any purported error because he failed to object to the trial court's proceeding to trial. McDaniel, 98 S.W.3d at 711. Even assuming Carnahan preserved error, on this record, we cannot conclude the trial court abused its discretion. Under the former article 46.02 section 1A(b), the evidence adduced did not overcome the presumption of competency. See Act of June 14, 2001, 77th Leg., R.S. ch. 828, §§ 3, 4, 2001 Tex. Gen. Laws 1650, 1652 (repealed 2003). . Carnahan's motion merely requested an examination to determine competency; it did not specifically assert that he was incompetent. See McDaniel, 98 S.W.3d at 711. The trial court granted the relief requested. We overrule Carnahan's first issue.
B. Motion for New Trial
By his second and third issues, Carnahan argues the trial court erred in overruling his motion for new trial because (1) he did not waive his competency issue, and (2) he presented sufficient evidence for a jury to determine competence. In criminal cases, there is no common law right to a new trial. Banks v. State, 186 S.W. 840, 841 (Tex.Crim.App. 1916). The right is purely statutory. Id.; see Drew v. State, 743 S.W.2d 207, 223 (Tex.Crim.App. 1987) (en banc); see also Tex.R.App.P. 21.2. The trial court is granted wide latitude in exercising the decision to grant or deny a motion for new trial, and in the absence of an abuse of discretion, an appellate court should not reverse. Lewis v. State, 911 S.W.2d 1, 7 (Tex.Crim.App. 1995). Even assuming the evidence was sufficient to raise the issue of competency, Carnahan did not fulfill the requirements of each of the McDaniel steps because he did not submit to the psychiatric examination ordered. See McDaniel, 98 S.W.3d at 710-11. A mere assertion of incompetency, unsupported by any facts or evidence, is not sufficient to require a "competency inquiry" under section 2a or a "competency hearing" under section 4. See id. at 711. On this record, we conclude the trial court did not abuse its discretion in denying the motion for new trial. We overrule the second and third issues presented.II. PSEUDONYMS
By his fourth and fifth issues, Carnahan argues that the trial court erred in applying pseudonyms to the victims because the use tainted the presumption of innocence and denied him a fair trial. The State counters that the use of pseudonyms to identify victims is statutory and that Carnahan waived error. A victim may choose to use a pseudonym instead of his or her name in all public files and records concerning the offense, including police summary reports, press releases, and records of judicial proceedings. TEX. CODE CRIM. Proc. ANN. art. 57.02(b) (Vernon Supp. 2004-05); see also Greeno v. State, 46 S.W.3d 409, 413 (Tex.App.-Houston [14th Dist.] 2001, no pet.). A victim who elects to use a pseudonym must complete a pseudonym form developed under this article and return the form to the investigating law enforcement agency. TEX. CODE Crim. PROC. ANN. art. 57.02(b) (Vernon Supp. 2004-05). Article 57.02(f) requires that the prosecutor use the pseudonym "in all legal proceedings concerning the offense." TEX. CODE Crim. PROC. ANN. art. 57.02(f) (Vernon Supp. 2004-05). The trial court may be permitted to disclose the victim's legal name, but only if the court finds that information to be essential in the trial of the offense, or the identity of the victim is in issue. TEX. CODE Crim. PROC. ANN. art. 57.02(g) (Vernon Supp. 2004-05). Carnahan complains in particular about the conditions the trial court imposed on the use of pseudonyms during trial. He argues that the trial court's comments regarding this use "brought undue attention to their [the complainants'] version of the facts so as to rebut the presumption of innocence." The only reference to the record points us to the following trial court statement:THE COURT: I'm gonna let you use names, so how are you harmed? You want names, you can get to use names. But, me, what I'm gonna do is try to safeguard it not leave this room. You need the names to leave this room?
[DEFENSE COUNSEL]: No.By enacting article 57.02 and changing the manner in which the victim may be identified in an indictment, the Legislature sought to satisfy two competing interests: the defendant's due process right to notice of the offense for which he was indicted; and the victim's interest in avoiding the embarrassment associated with a public pronouncement of the details of the alleged offense. Stevens v. State, 891 S.W.2d 649, 651 (Tex.Crim.App. 1995) (en banc). We conclude the trial court's conditions were consistent with legislative intent. Carnahan received notice of the offense, including the identity of his accusers, and the accusers' names were protected from public disclosure. See id. The record does not reflect that the trial court's conditions exceeded the scope of its statutory authority. We overrule the fourth and fifth issues presented.
III. LIMITING CROSS-EXAMINATION
By his sixth and seventh issues, Carnahan argues the trial court violated his confrontation right by severely limiting his cross-examination of two State's witnesses regarding (1) behavioral characteristics of his stepdaughters, and (2) the younger stepdaughter's sexual history. The State responds, in part, that error, if any, is harmless. Carnahan points first to the trial court's ruling precluding the defense from questioning his ex-wife about his stepdaughters' trophies and achievements. The trial court sustained the State's relevancy objection and requested the defense to present persuasive authority to allow the question. Outside the jury's presence, the defense argued that the "particular response that I was looking for, was that they would be unable to feel any pride of accomplishment." The question was one in a "list of behaviors that . . . basically, describe what people do when things happen." The defense offered to "back off of trophies." The trial court ruled that he would allow the question if the defense presented to the jury "that there's a study . . . a pattern that . . . victims of sexual crimes behave a certain way." Still outside the presence of the jury, the defense provided the court with the questions "[n]ot about trophies" that would be asked of the same witness. The defense argued that the State did not object to those questions. The trial court stated, "I don't have any problem, if I don't have an objection." Before the jury, the defense asked, without objection, questions on the girls' behaviors. Carnahan's ex-wife responded that they were "normal kids," the older one would mumble when flustered, the "little one would get quite angry" with Carnahan, and they did not have nightmares or hallucinations. Because the defense withdrew the question about trophies, the complaint is not preserved for review. See TEX. R. CIV. P. 33.1(a)(1). The Sixth Amendment guarantees a criminal defendant the right to confront the witnesses against him. See U.S. Const. amend. VI. The confrontation clause is made applicable to the states by the Fourteenth Amendment. Shelby v. State, 819 S.W.2d 544, 546 (Tex. Crim App. 1991) (en banc); see U.S. Const. amend. XIV. A primary interest secured by the confrontation clause is the right of cross-examination. Lopez v. State, 18 S.W.3d 220, 222 (Tex.Crim.App. 2000). Because cross-examination is a cornerstone of the criminal trial process, a defendant must be given wide latitude to explore a witness's story, to test the witness's recollection of events, and to impeach his or her credibility. Love v. State, 861 S.W.2d 899, 904 (Tex.Crim.App. 1993) (en banc). However, the trial court retains wide latitude to impose reasonable limits on cross-examination, based upon concerns about "harassment, prejudice, confusion of issues, the witness's safety, or interrogation that is repetitive or only marginally relevant." Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986); Lopez, 18 S.W.3d at 222. Rule 608 of the Texas Rules of Evidence governs admissibility of impeachment evidence. TEX. R. EVID. 608. Rule 608(b) expressly forbids the use of specific instances of conduct to impeach a witness's credibility except to "expose bias or interest, rebut affirmative representations made on direct examination, or to demonstrate a lack of capacity." Lagrone v. State, 942 S.W.2d 602, 613 (Tex.Crim.App. 1997) (en banc). Thus, while the defendant has a constitutional right to confront witnesses, this right is not absolute and the trial court retains broad discretion to limit cross-examination. See Thomas v. State, 137 S.W.3d 792, 797 (Tex.App.-Waco 2004, no pet.) (citing Carroll v. State, 916 S.W.2d 494, 498 (Tex.Crim.App. 1996) (en banc)). An abuse of discretion occurs when the trial court acts arbitrarily or unreasonably, without reference to guiding rules or principles. Montgomery v. State, 810 S.W.2d 372, 379 (Tex.Crim.App. 1990) (en banc). In other words, an abuse of discretion occurs only when the trial court's decision is so wrong as to lie outside that zone within which reasonable persons might disagree. Id. We conclude the trial court did not abuse its discretion in sustaining the State's relevancy objection regarding the girls' achievements because the ruling lies within the zone of reasonable disagreement. Id. Even so, the record shows the jury heard some evidence regarding the girls' school achievements and activities. We overrule the sixth issue presented. Next, we address Carnahan's complaint that the trial court's ruling limited cross-examination of the younger stepdaughter regarding her sexual history. Carnahan argues that this line of questioning was necessary to rebut medical testimony that a cyst on her leg could have been caused by a sexually transmitted disease. Outside the presence of the jury, the defense argued that the State opened the door to questioning about the younger stepdaughter's sexual history when it elicited this testimony. The trial court instructed the jury to limit its "consideration of that evidence only to show what led to the outcry of the young girl, and not that it was caused by the defendant or anybody else, the cyst." In a prosecution for a sexual offense, reputation or opinion evidence of the past sexual behavior of an alleged victim of such crime is not admissible. See Tex. R. EVID. 412(a). Similarly, evidence of specific instances of an alleged victim's past sexual behavior is not admissible unless necessary to rebut or explain medical evidence offered by the State. See TEX. R. EVID. 412(b)(2)(A). Ruling outside the presence of the jury, the trial court disallowed the cross-examination of the younger stepdaughter on grounds that the purpose of the evidence was to show that the examination of the cyst led to the child's outcry statement. Subsequently, the trial court gave the jury a limiting instruction. Under Rule 105(a), when evidence is admissible for one purpose, but not another, "the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly." TEX. R. EVID. 105(a). We cannot conclude that the trial court's ruling was without reference to guiding rules or principles or outside the zone of reasonable disagreement. Montgomery, 810 S.W.2d at 379. We overrule Carnahan's seventh issue.IV. SUFFICIENCY
By his eighth through twentieth issues, Carnahan argues the evidence was legally and factually insufficient to sustain the convictions for indecency, sexual assault, and aggravated sexual assault. The State responds that the evidence is sufficient.A. Standards and Scope of Review 1. Legal Sufficiency
A legal-sufficiency challenge requires us to review the relevant evidence in the light most favorable to the verdict, and then to determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Escamilla v. State, 143 S.W.3d 814, 817 (Tex.Crim.App. 2004) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)); see also Swearingen v. State, 101 S.W.3d 89, 95 (Tex.Crim.App. 2003) (en banc); Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000) (en banc). This standard is designed to give "full play to the [jury's] responsibility fairly" to "draw reasonable inferences from basic facts to ultimate facts." Sanders v. State, 119 S.W.3d 818, 820 (Tex.Crim.App. 2003). We consider all the evidence that sustains the conviction, whether properly or improperly admitted. Conner v. State, 67 S.W.3d 192, 197 (Tex.Crim.App. 2001) (citing Garcia v. State, 919 S.W.2d 370, 378 (Tex.Crim.App. 1994) (en banc)). Similarly, we consider all the evidence that sustains the conviction, whether submitted by the prosecution or the defense, in determining the legal sufficiency of the evidence. King v. State, 29 S.W.3d 556, 562 (Tex.Crim.App. 2000) (en banc); Cook v. State, 858 S.W.2d 467, 470 (Tex.Crim.App. 1993) (en banc). In this review, we are not to reevaluate the weight and credibility of the evidence; rather, we act only to ensure that the jury reached a rational decision. Muniz v. State, 851 S.W.2d 238, 246 (Tex.Crim.App. 1993) (en banc). The legal sufficiency of the evidence is measured against the elements of the offense as defined by a hypothetically correct jury charge for the case. Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App. 1997). This standard of legal sufficiency ensures that a judgment of acquittal is reserved for those situations in which there is an actual failure in the State's proof of the crime, rather than a mere error in the jury charge submitted. Id. We then determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson, 443 U.S. at 319; Johnson, 23 S.W.3d at 7. If we reverse a criminal case for legal insufficiency, we reform the judgment of conviction to reflect conviction for a lesser offense only if a jury charge on the lesser offense was either submitted or requested, but denied. Collier v. State, 999 S.W.2d 779, 782 (Tex.Crim.App. 1999). Otherwise, we vacate the judgment of conviction for legal insufficiency and order a judgment of acquittal. Swearingen, 101 S.W.3d at 95.2. Factual Sufficiency
We are constitutionally empowered to review the judgment of the trial court to determine the factual sufficiency of the evidence used to establish the elements of the offense with which Carnahan was charged. See Johnson, 23 S.W.3d at 6. The Texas Court of Criminal Appeals has restated the factual sufficiency standard of review:There is only one question to be answered in a factual sufficiency review: Considering all of the evidence in a neutral light, was a jury rationally justified in finding guilt beyond a reasonable doubt? However, there are two ways in which the evidence may be insufficient. First, when considered by itself, evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt. Second, there may be both evidence supporting the verdict and evidence contrary to the verdict. Weighing all the evidence under this balancing scale, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met, so the guilty verdict should not stand. This standard acknowledges that evidence of guilt can 'preponderate' in favor of conviction but still be insufficient to prove the elements of the crime beyond a reasonable doubt. Stated another way, evidence supporting guilt can 'outweigh' the contrary proof and still be factually insufficient under a beyond-a-reasonable-doubt standard.Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex.Crim.App. 2004). A clearly wrong and unjust verdict occurs where the jury's finding is "manifestly unjust," "shocks the conscience," or "clearly demonstrates bias." Prible v. State, No. AP-74,487, 2005 Tex. Crim. App. LEXIS 110, at *16-*17 (Tex.Crim.App. January 26, 2005) (designated for publication). When the State bears the burden of proof, the proof of guilt is factually insufficient if it is so obviously weak as to indicate that a manifest injustice has occurred or if it is greatly outweighed by contrary proof. Zuliani v. State, 97 S.W.3d 589, 593-94 (Tex.Crim.App. 2003). In determining the factual sufficiency of the elements of the offense, we view all the evidence neutrally, not through the prism of "the light most favorable to the prosecution." Johnson, 23 S.W.3d at 6-7 (citing Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996)). However, we approach a factual-sufficiency review with appropriate deference to avoid substituting our judgment for that of the fact finder. Id. Our evaluation should not intrude substantially on the fact finder's role as the sole judge of the weight and credibility given to witness testimony. Id. We must consider the most important evidence that the appellant claims undermines the jury's verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App. 2003). Every fact need not point directly and independently to the accused's guilt. Vanderbilt v. State, 629 S.W.2d 709, 716 (Tex.Crim.App. 1981). A conclusion of guilt can rest on the combined and cumulative force of all the incriminating circumstances. Id. We reverse a judgment of conviction only if proof of guilt is so obviously weak and manifestly unjust or the contrary evidence is so strong that the standard of proof beyond a reasonable doubt could not have been met. Prible, 2005 Tex. Crim. App. LEXIS 110, at *16-*17. In conducting a factual sufficiency review, we review all the evidence. Cain v. State, 958 S.W.2d 404, 408 (Tex.Crim.App. 1997). In the opinion, we "show our work" when we consider and address the appellant's main argument for urging insufficiency of the evidence. See Tex.R.App.P. 47.1; Sims, 99 S.W.3d at 603 ("A proper factual sufficiency review must include a discussion of the most important and relevant evidence that supports the appellant's complaint on appeal."). This practice benefits the parties, maintains the integrity of the justice system, and improves appellate practice. Id. If we reverse a criminal case for factual insufficiency, we vacate the judgment of conviction. Clewis, 922 S.W.2d at 133-34. We remand for a new trial a criminal case reversed for factual insufficiency so a second jury may have the chance to evaluate the evidence. Swearingen, 101 S.W.3d at 97.
3. General Verdict
When the indictment alleges alternate theories of committing the same offense, it is proper for the jury to be charged in the disjunctive and to return a general verdict of guilty. TEX. CODE CRIM. Proc. ANN. art. 37.07, § 1(a) (Vernon Supp. 2004-05) (verdict must be general); Kitchens v. State, 823 S.W.2d 256, 258 (Tex.Crim.App. 1991) (en banc). The conviction will be upheld if the evidence is sufficient to support a finding of guilt under any one of the theories submitted. Kitchens, 823 S.W.2d at 258; see Aguirre v. State, 732 S.W.2d 320, 326 (Tex.Crim.App. 1987) (en banc); Yandell v. State, 46 S.W.3d 357, 363 (Tex.App.-Austin 2001, pet. ref'd).4. Testimony of a Child in Sexual Conduct Cases
The testimony of a child sexual abuse victim alone is sufficient to support a conviction for aggravated sexual assault. TEX. CODE CRIM. PROC. Ann. art. 38.07 (Vernon 2005); see Garcia v. State, 563 S.W.2d 925, 928 (Tex.Crim.App. 1978). Courts give wide latitude to testimony given by child victims of sexual abuse. See Villalon v. State, 791 S.W.2d 130, 134 (Tex.Crim.App. 1990) (en banc). The victim's description of what happened to her need not be precise, and she is not expected to express herself at the same level of sophistication as an adult. See id. There is no requirement that the victim's testimony be corroborated by medical or physical evidence. Garcia, 563 S.W.2d at 928; Kemple v. State, 725 S.W.2d 483, 485 (Tex.App.-Corpus Christi 1987, no writ).B. The Hypothetically Court Charge
A hypothetically correct charge is one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or restrict its theories of liability, and adequately describes the particular offense. Malik, 953 S.W.2d at 240; Cano v. State, 3 S.W.3d 99, 105 (Tex.App.-Corpus Christi 1999, pet. ref'd). A hypothetically correct jury charge does not simply quote from the controlling statute. Gollihar v. State, 46 S.W.3d 243, 254 (Tex.Crim.App. 2001). Its scope is limited by the statutory elements of the offense as modified by the charging instrument. See Fuller v. State, 73 S.W.3d 250, 254 (Tex.Crim.App. 2002) (Keller, P.J., concurring) (quoting Curry v. State, 30 S.W.3d 394, 404 (Tex.Crim.App. 2000)). Malik flatly rejects use of the jury charge actually given as a means of measuring sufficiency of the evidence. See Gollihar, 46 S.W.3d at 252. Malik controls sufficiency of the evidence analysis even in the absence of alleged jury charge error. Id. at 255.C. The Law Applicable to the Indecency-with-a-Child Counts 1. Counts 1, 4 and 5
The statutory period of limitation for indecency with a child is ten years from the child's eighteenth birthday. TEX. CODE CRIM. Proc. ANN. art. 12.01(5)(A) (Vernon 2005). The indictment alleged various sexual offenses against Carnahan's minor stepdaughters. Count 1 alleged indecency with the older stepdaughter on or about November 1, 1993 by touching her genitals. Counts 4 and 5 alleged indecency with the younger stepdaughter on or about October 1, 1995, and October 1, 1996, respectively, by touching her genitals. See Act of May 29, 1993, 73rd Leg., R.S., ch. 900, § 1.01, sec. 21.11, 1993 Tex. Gen. Laws 3586, 3616, amended by Act of May 23, 2001, 77th Leg., R.S., ch. 739, 2001 Tex. Gen. Laws 1463, 1464 (current version at TEX. PEN. CODE ANN. 21.11(a)(1) (Vernon 2003)).2. "On or About" Allegation of Date of Offense
Unless the date is a material element of an offense, it is not necessary for an indictment to specify the precise date on which the charged offense occurred. See Garcia v. State, 981 S.W.2d 683, 685-86 (Tex.Crim.App. 1998) (en banc). The primary purpose of specifying a date in the indictment is not to notify the accused of the date of the offense. Id. at 686. Rather, the purpose of providing a date is to show that the prosecution is not barred by the statute of limitation. Id. When an indictment alleges that a crime occurred "on or about" a certain date, the State may prove an offense "with a date other than the one specifically alleged so long as the date is anterior to the presentment of the indictment and within the statutory limitation period and the offense relied upon otherwise meets the description of the offense contained in the indictment." Yzaguirre v. State, 957 S.W.2d 38, 39 (Tex.Crim.App. 1997) (en banc) (quoting Sledge v. State, 953 S.W.2d 253, 256-57 (Tex.Crim.App. 1997) (en banc)). Accordingly, the hypothetically correct jury charge in this case would instruct the jury that the State could prove that the charged offenses were committed before, on, or after the dates alleged in the indictment so long as the dates were before the date of the indictment and within the applicable limitation period. Mireles v. State, 901 S.W.2d 458, 459 (Tex.Crim.App. 1995) (en banc); DeMoss v. State, 12 S.W.3d 553, 560 (Tex.App.-San Antonio 1999, pet. ref'd).3. The Elements of Indecency with a Child as Limited by the Indictment
Thus, the hypothetically correct jury charge against which we measure legal sufficiency in Count 1 of the indictment in this case would ask the jury if Carnahan (1) on or about November 1, 1993, (2) intentionally or knowingly (3) engaged in sexual contact (4) with the older stepdaughter, who was then a child under 17 years old and not his spouse, (5) by touching her genitals. For Counts 4 and 5 involving the younger stepdaughter, the hypothetically correct jury charge would contain the same elements, alleged to have occurred on or about October 1, 1995, and October 1, 1996. We turn to the relevant definitions.4 Definitions Used in the Indecency-with-a-Child Statute
The penal code defines "sexual contact" as "any touching of the anus, breast, or any part of the genitals of another person with intent to arouse or gratify the sexual desire of any person." TEX. PEN. CODE Ann. § 43.01 (Vernon 2003). The offense of indecency with a child requires proof of the accused's intent to engage in the proscribed contact rather than an intent to bring about any particular result. Rodriguez v. State, 24 S.W.3d 499, 502 (Tex.App.-Corpus Christi 2000, pet. ref'd). Thus, the definitions in the hypothetically correct jury charge in this case concerning the applicable culpable mental state for the indecency-with-a-child counts would be limited to the nature of the conduct, rather than the result of conduct or circumstances surrounding the conduct. A person acts intentionally, or with intent, with respect to the nature of the conduct or a result of the conduct when it is the person's conscious objective or desire to engage in the conduct or cause the result. TEX. PEN. Code ANN. § 6.03(a) (Vernon 2003). Similarly, a person acts knowingly, or with knowledge, with respect to the nature of conduct or to circumstances surrounding the conduct when the person is aware of the nature of the conduct or that the circumstances exist. Tex. PEN. CODE ANN. § 6.03(b) (Vernon 2003). A fact finder may infer the accused's mental state from the acts, words, and conduct of the accused and from the circumstances surrounding the acts in which the accused engaged. See Hernandez v. State, 819 S.W.2d 806, 810 (Tex.Crim.App. 1991) (en banc); Dillon v. State, 574 S.W.2d 92, 94 (Tex.Crim.App. [Panel Op.] 1978). An accused rarely facilitates conviction by admitting to the requisite intent or knowledge, and it is seldom possible to prove by direct evidence what an accused intended or knew at the time of the incident. Thus, the fact finder usually must infer intent and knowledge from circumstantial evidence rather than direct proof. See Gardner v. State, 736 S.W.2d 179, 182 (Tex.App.-Dallas 1987), aff'd, 780 S.W.2d 259 (Tex.Crim.App. 1989); see also Hernandez, 819 S.W.2d at 810; Dillon, 574 S.W.2d at 94-95. Specifically, the fact finder can infer the requisite intent to arouse or gratify the sexual desire of a person from conduct, remarks, or all the surrounding circumstances. Robertson v. State, 871 S.W.2d 701, 705 (Tex.Crim.App. 1993); McKenzie v. State, 617 S.W.2d 211, 216 (Tex.Crim.App. 1981). The intent to arouse or gratify may be inferred from conduct alone. McKenzie, 617 S.W.2d at 216. No oral expression of intent is necessary. Id.; Gregory v. State, 56 S.W.3d 164, 171 (Tex.App.-Houston [14th Dist.] 2001, pet. granted). Nor is visible evidence of sexual arousal required. McKenzie, 617 S.W.2d at 216; Gregory, 56 S.W.3d at 171. Further, the fact finder may draw an inference of guilt from the accused's acts, words, and conduct before, during, and after the incident. See Foster v. State, 779 S.W.2d 845, 859 (Tex.Crim.App. 1989) (en banc) (inference of guilt may be drawn from flight).D. The Law Applicable to the Aggravated-Sexual-Assault-of-a-Child Counts 1. Counts 2, 3, 6, 7, and 8
The statutory period of limitation for aggravated sexual assault of a child is ten years from the child's eighteenth birthday. TEX. CODE Crim. PROC. ANN. art. 12.01(5)(B) (Vernon 2005). Counts 2 and 3 of the indictment alleged that Carnahan intentionally and knowingly caused digital penetration of the older stepdaughter's sexual organ on or about March 1 and November 1, 1994, respectively. Counts 6, 7, and 8 alleged that Carnahan intentionally and knowingly committed aggravated sexual assault of the younger stepdaughter by (1) genital-to-genital contact on or about March 1, 1997, (2) genital-to-mouth contact on or about October 1, 1997, and (3) digital penetration on or about March 1, 1998.2. The Elements of Aggravated Sexual Assault of a Child
Thus, the hypothetically correct jury charge against which we measure legal sufficiency in Counts 2, 3, and 8 of the indictment would ask the jury if Carnahan (1) on or about the alleged dates, (2) intentionally or knowingly, (3) caused penetration of the sexual organ, (4) of each of the stepdaughters, who were then children under 14 years old and not married to him, (5) by any means. See Act of May 26, 1999, 76th Leg., R.S., ch. 417, § 2, 1999 Tex. Gen. Laws 2752, 2753, amended by Act of May 15, 2001, 77th Leg., R.S., ch. 459, § 5 (current version at Tex. PEN. CODE ANN. 22.021(a)(1)(B)(i) (Vernon Supp. 2004-05)). As to Count 6 of the indictment, the hypothetically correct jury charge would ask the jury if Carnahan (1) on or about March 1, 1997, (2) intentionally or knowingly (3) caused the sexual organ (4) of the younger stepdaughter, who was then a child under 14 years old and not his spouse, (5) to contact (6) his sexual organ. See Act of May 26, 1999, 76th Leg., R.S., ch. 417, § 2, 1999 Tex. Gen. Laws 2752, 2753, amended by Act of May 15, 2001, 77th Leg., R.S., ch. 459, § 5 (current version at TEX. Pen. CODE ANN. 22.021(a)(1)(B)(iii) (Vernon Supp. 2004-05)). As to Count 7, the hypothetically correct jury charge would ask the jury if Carnahan (1) on or about October 1, 1997, (2) intentionally or knowingly (3) caused the sexual organ (4) of the younger stepdaughter, who was then a child under 14 years old and not his spouse, (5) to contact (6) his mouth. See Act of May 26, 1999, 76th Leg., R.S., ch. 417, § 2, 1999 Tex. Gen. Laws 2752, 2753 (amended 2001). We turn to additional relevant definitions.3. Definitions Used in the Aggravated-Sexual-Assault-of-a-Child Statute
The Texas Court of Criminal Appeals has not addressed whether aggravated sexual assault of a child is a nature-of-conduct, result-of-conduct, or combined offense. See Baker v. State, 94 S.W.3d 684, 691 (Tex.App.-Eastland 2002, no pet.); see also Cook, 884 S.W.2d at 492-94 (Maloney, J., concurring); Duhart v. State, 890 S.W.2d 187, 191 (Tex.App.-Corpus Christi 1994, no pet.); Murray v. State, 804 S.W.2d 279, 281 (Tex.App.-Fort Worth 1991, pet. ref'd). Where an offense is not clearly categorized with respect to the conduct elements, the trial court may submit to the jury the full statutory definitions of "intentionally" and "knowingly" because both definitions allow the jury to consider the nature of the accused's conduct or the results of the conduct. Baker, 94 S.W.3d at 691 (citing Murray, 804 S.W.2d at 281).E. The Law Applicable to the Sexual-Assault-of-a-Child Counts 1. Counts 9, 10, 11, 12, and 13
The statutory period of limitation for sexual assault of a child is also ten years from the child's eighteenth birthday. TEX. CODE CRIM. PROC. Ann. art. 12.01(5)(B) (Vernon 2005). Counts 9, 10, 11, 12 and 13 alleged that Carnahan intentionally and knowingly sexually assaulted the younger stepdaughter by (1) genital-to-mouth contact on or about October 1, 1998, (2) digital penetration on or about March 1, 1999, (3) genital-to-mouth contact on or about October 1, 1999, (4) digital penetration on or about March 1, 2000, and (5) genital-to-mouth contact on or about October 1, 2000, respectively.2. The Elements of Sexual Assault of a Child
Thus, the hypothetically correct jury charge against which we measure legal sufficiency in Counts 9, 11, and 13 of the indictment would ask the jury if Carnahan (1) on or about the alleged dates (2) intentionally or knowingly (3) caused the sexual organ (4) of the younger stepdaughter, who was then a child under 14 years old and not his spouse, (5) to contact the mouth by any means. See TEX. Pen. CODE ANN. 22.011(a)(2)(C) (Vernon Supp. 2004-05). As to Counts 10 and 12, the hypothetically correct jury charge would ask if Carnahan (1) on or about the alleged dates (2) intentionally or knowingly (3) caused penetration of the sexual organ (4) of the younger stepdaughter, who was then a child under 14 years old and not his spouse, (5) by any means. See TEX. Pen. CODE ANN. § 22.011(a)(2)(A) (Vernon Supp. 2004-05).3. Definitions Used in the Sexual-Assault-of-a-Child Statute
Three "conduct elements" can be involved in an offense: (1) nature of the conduct, (2) result of the conduct, and (3) circumstances surrounding the conduct. McQueen v. State, 781 S.W.2d 600, 603 (Tex.Crim.App. 1989) (en banc). A particular offense may contain one or more of these conduct elements. Id. Whether sexual assault of a child is a nature-of-conduct, result-of-conduct, or combined offense is unsettled. We conclude that until the Texas Court of Criminal Appeals classifies sexual assault as a result-oriented crime, a nature-of-the-conduct offense, or a combination, "it is not error for the trial court to submit the statutory definitions of 'intentionally' and 'knowingly' because both definitions allow the jury to consider the nature of [an] offender's conduct or the results of his conduct." Saldivar v. State, 783 S.W.2d 265, 267 (Tex.App.-Corpus Christi 1989, no pet.); see also Cook, 884 S.W.2d at 492-94.F. The Evidence at Trial
Carnahan married the girls' mother in May 1993, when the girls were about nine and ten years old. The older stepdaughter was born on January 1, 1983. The younger one was born on April 29, 1984. At the time of the marriage, Carnahan moved into the townhome where the girls were living with their mother. Allegations of sexual contact arose after the younger stepdaughter told a neighbor, during the summer of 2001, that Carnahan had molested her for the last six years. From the neighbor, the jury heard that the younger stepdaughter told her Carnahan attempted intercourse with her when she was in the fourth grade. The girls' mother confirmed the outcry from the younger stepdaughter and asked the older stepdaughter about sexual contact by Carnahan. The older stepdaughter confirmed it had occurred. The older stepdaughter testified she was nine or ten years old and in the fourth grade when her mother began dating Carnahan. Molestation began a few months after the marriage in 1993. She described for the jury sexual contact and multiple acts of sexual contact by Carnahan. She testified that the contacts and conduct occurred enough that she dreaded weekends at home and looked forward to Mondays and school. The contact stopped when she reached the sixth grade, when she was twelve years old. The younger child described for the jury years of sexual contact and multiple acts of sexual conduct by Carnahan, spanning from 1995 through 2001. The incidents began in the fall of 1995 when she was in the fifth or sixth grade and stopped the summer of her senior year in high school. Admitted in evidence was a letter Carnahan sent the girls' mother, which stated, in part, "If you really want to know about [the younger stepdaughter], she is not at all what you believe. There was very little touching, but every bit of it was by her inducement and request" (underlining in original). Both girls testified about marital discord between Carnahan and their mother. They denied telling their mother about the incidents prior to the younger stepdaughter's outcry. The jury heard that their mother pursued divorce proceedings the day after the outcry. Two defense witnesses testified that social visits with Carnahan and his stepdaughters revealed normal interaction between them, but marital problems existed between Carnahan and the girls' mother. Carnahan testified in his own defense. He told the jury that the younger stepdaughter asked him to look at a cyst on her leg because she was aware of his "pre-med" background. He viewed the cyst, in his wife's presence, and explained to the younger stepdaughter that the bump was a swollen lymph node. He checked the cyst daily. He denied that his checking the cyst led to sexual contact. Carnahan denied the charges. He admitted writing the letter to the girls' mother, explaining that he wrote it because he was contemplating suicide after receiving news of his indictment. He related to the jury that he gave the girls rubdowns at their request because their muscles hurt, but" it sure wasn't anything sexual. It was a chore, a monotonous chore, almost daily." He described numerous incidents regarding such contact. He admitted fleeing to Costa Rica pending trial.F. Sufficiency Analyses
With a hypothetically correct jury charge in mind that reflects definitions and the elements of the offenses, we turn to the legal and factual sufficiency analyses of the evidence to support the convictions for indecency, aggravated assault, and sexual assault of a child.1. Elements Common to the Charged Offenses
As an initial matter, we conclude that, viewed under the legal and sufficiency standards, the evidence conclusively established that (1) the stepdaughters were under the age of seventeen years and not married to Carnahan, and (2) the offenses occurred in Nueces County, Texas. The offenses proved by the State conformed with the allegations in the indictment, were within the statute of limitation, and occurred before the date of the indictment. See Yzaguirre, 957 S.W.2d at 39. The State was not required to prove that any particular offense occurred on any particular date. See Mireles, 901 S.W.2d at 459. Viewing the evidence under the appropriate legal and factual sufficiency standards, we conclude that any rational trier of fact could have found beyond a reasonable doubt that Carnahan committed the offenses charged in the indictment on dates prior to the date of the indictment and within the limitation period. See Jackson, 443 U.S. at 319; Johnson, 23 S.W.3d at 7; Zuniga, 144 S.W.3d at 484-85.2. The Older Stepdaughter
Count 1 charged Carnahan with indecency with a child against the older stepdaughter. Counts 2 and 3 charged him with aggravated sexual assault. The evidence showed that, shortly after he married the girls' mother, Carnahan began molesting the older stepdaughter when she was about nine years old. He continued until she was twelve. The abuse began with Carnahan's touching her sexual organ and escalated to digital penetration. Carnahan denied sexual contact and conduct.3. The Younger Stepdaughter
As to the younger stepdaughter, the indictment charged Carnahan as follows:(1) indecency with a child, Counts 4 and 5; (2) aggravated sexual assault of a child, Counts 6, 7, and 8; and (3) sexual assault of a child, Counts 9, 10, 11, 12, and 13. The younger stepdaughter testified of numerous instances of sexual conduct and contact by Carnahan. Carnahan admitted to touching her breasts and sexual organ on separate occasions but claimed he did so accidentally. In his letter to the girls' mother, he admitted "[t]here was very little touching, but every bit of it was by [the younger daughter's] inducement and request" (underlining in original).