No. 01-07-00473-CR
July 17, 2008. DO NOT PUBLISH. Tex. R. App. P. 47.2(b)
On Appeal from the 149th District Court, Brazoria County, Texas Trial Court Cause No. 48663.
Panel consists of Chief Justice RADACK and Justices KEYES and HIGLEY.
SHERRY RADACK, Chief Justice.
A jury convicted appellant, Juan Segueda, of two charges of aggravated sexual assault of A.M., a child under the age of fourteen, and the trial court assessed punishment at sixty years' confinement. See Tex. Penal Code Ann. § 22.021(a)(1)(B)(iii) (Vernon 2003 Supp. 2007). In two points of error, appellant contends that (1) the evidence is legally insufficient to support the conviction and (2) the trial court erred in admitting evidence of an extraneous offense at punishment because appellant received inadequate notice of the State's intent to use the offense. We affirm.
BACKGROUND
A.M., a thirteen-year-old girl, testified that when she was eight or nine years old she was forced to engage in vaginal and anal sex with appellant, her step-father, more than five times. During each of the incidents, appellant took A.M. into her bedroom, put her stomach-down on the bed, pulled her pants down, and touched her on her "middle part" or bottom" with his "middle part." When he touched her, he would touch her on "the inside." Sometimes he would move slow and sometimes he would move fast. When he touched her, it hurt "a lot." During the assaults, A.M. saw something come out of appellant's "middle part." Appellant is the only person who has put his "middle part" in A.M.'s "middle part" or "bottom." The assaults took place during the summer, when A.M. lived with appellant and her mother. A.M. did not tell her mother about the sexual assaults for a long time because she feared that appellant would do something to her mother or sister. A.M. told her mother about the assaults after appellant moved out of their house. Ernestina Sanchez, A.M.'s grandmother, testified at trial that A.M. lived with her during the school year and with her mother and appellant during the summer. Sanchez testified that, around the time of the sexual assaults, A.M. started having nightmares. "She would start screaming, crying, shaking, calling out for her mom and her little sister." When asked what she was afraid of, A.M. responded that she was afraid for the lives of her mother and little sister. In addition to the nightmares, A.M.'s grades declined, she cried when told that she would be going to her mother's house, and she acted fearful around appellant. Dr. James Lukefahr, a pediatrician with the University of Texas Medical Branch in Galveston who works with child victims of alleged sexual abuse, testified regarding the medical examination A.M. received after making her outcry. Dr. Lukefahr testified that A.M.'s mother disclosed that A.M. was unhappy at home, her grades declined, she directed angry outbursts at her mother and siblings, she contemplated suicide, and she preferred to live with her grandmother. During the examination, A.M. disclosed that appellant used his "middle front, front private" to penetrate her vaginally and anally. She reported pain with both vaginal and anal penetration. The assaults began when she was eight years old, and would occur "in [her] room when [her] mom was at work." A.M. disclosed that appellant told her that if she told anyone he would hurt her mother. Dr. Lukefahr testified that none of A.M.'s physical characteristics were inconsistent with a sexual assault victim. He also testified that the hospital diagnosed A.M. with chlamydia of the anus, a sexually-transmitted disease. The only explanation for the diagnosis was contact between her anus and the sexual organ of someone infected with the disease. LEGAL SUFFICIENCY
In point of error one, appellant contends the evidence is legally insufficient to support a conviction. Appellant argues that the State failed to prove the essential element of section 22.021 of the Penal Code, that appellant penetrated either the anus or the sexual organ of the victim. Specifically, appellant contends that the State's use of the non-technical term "middle part" to represent A.M.'s or appellant's sexual organ and the term "bottom" to represent A.M.'s anus, without giving definitions of those terms, renders the evidence legally insufficient to support the jury's verdict. Standard of Review
When evaluating the legal sufficiency of the evidence, we view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Drichas v. State, 175 S.W.3d 795, 798 (Tex.Crim.App. 2005). The standard is the same for both direct and circumstantial evidence cases. King v. State, 895 S.W.2d 701, 703 (Tex.Crim.App. 1995). We do not resolve any conflict of fact, weigh any evidence, or evaluate the credibility of any witnesses, as this is the function of the trier of fact. See Adelman v. State, 828 S.W.2d 418, 421 (Tex.Crim.App. 1992); Matson v. State, 819 S.W.2d 839, 843 (Tex.Crim.App. 1991). Instead, our duty is to determine whether both the explicit and the implicit findings of the trier of fact are rational by viewing all the evidence admitted at trial in the light most favorable to the verdict. See Adelman, 828 S.W.2d at 422. In conducting our review, we resolve any inconsistencies in the evidence in favor of the verdict. Matson, 819 S.W.2d at 843. A person commits aggravated sexual assault of a child if he intentionally or knowingly causes the sexual organ or anus of a child to contact or penetrate the mouth, anus, or sexual organ of another person, including the actor. Tex. Penal Code Ann. § 22.021(a)(1)(B)(iii). The testimony of the child victim alone is sufficient to support the conviction for sexual abuse. Tex. Code Crim. Proc. Ann. art. 38.07(a) (Vernon 2005); Tran v. State, 221 S.W.3d 79, 88 (Tex.App.-Houston [14th Dist.] 2005, pet. ref'd). Analysis
Having reviewed the evidence in the requisite light most favorable to the verdict, we conclude that A.M.'s testimony was legally sufficient to establish that appellant sexually assaulted her as section 22.021(a)(1)(B)(iii) of the Penal Code defines that offense and as charged in the indictment. Although the State did not have any witness testify about what A.M. meant when she used the non-technical terms "middle part" and "bottom," the prosecutor did have A.M. use four photographs of people, State's Exhibits 1-4, to identify the terms she used for the different body parts. She identified the head, arms, breasts, stomach, "middle part," legs, and feet on State's Exhibit 3, and the back, arms, "bottom," and legs on State's Exhibit 4. She also identified the head, arms, "middle part," legs, and feet on State's Exhibit 1, and the back, "bottom," and legs on State's Exhibit 2. When faced with an undescribed demonstration, as here, we presume that the demonstration supports the judgment. See Rogers v. State, 756 S.W.2d 332, 336 (Tex.App.-Houston [14th Dist.] 1988, pet. ref'd); Gaona v. State, 733 S.W.2d 611, 613 n. 1 (Tex.App.-Corpus Christi 1987, pet. ref'd). Accordingly, we must view the excerpts of the demonstration in the record as evidence that A.M.'s identification of the body parts was sufficient to allow the jury to conclude that A.M. identified the male and female sexual organs as the "middle part" and the anus as the "bottom." Additionally, A.M. testified that she told the police that appellant "put his penis in [her]." Medical evidence also showed that A.M. tested positively for chlamydia in her anus. Dr. Lukefahr testified that chlamydia in a child A.M.'s age could only be caused by sexual contact with an infected person. A.M. testified that appellant was the only person who had ever "put their [sic] middle in her bottom." Appellant also argues that the State failed to prove that he penetrated either the victim's sexual organ or anus. The State does not need to prove penetration. Under section 22.021(a)(1)(B)(iii) of the Penal Code, and as stated in the indictment, the State has to prove that appellant intentionally or knowingly caused A.M.'s sexual organ or anus to contact his sexual organ. Tex. Penal Code Ann. § 22.021 (a)(1)(B)(iii) (emphasis added). A.M. testified that appellant touched her on her "middle part" and "bottom" with his "middle part." Additionally, Dr. Lukefahr testified that, during her medical examination, A.M. stated that appellant used his "middle front, front private" to penetrate her vaginally and anally. Because the testimony of the child victim alone is sufficient to support the conviction, we hold that a reasonable jury could find beyond a reasonable doubt that appellant intentionally or knowingly caused the sexual organ and anus of A.M. to contact his sexual organ. See Tex. Code Crim. Proc. Ann. art. 38.07(a). We overrule appellant's first point of error. Inadequate Notice
In his second point of error, appellant contends the trial court erred by allowing evidence of an extraneous offense at punishment because appellant received insufficient notice of the State's intent to offer such evidence under article 37.07 of the Code of Criminal Procedure. Specifically, appellant argues that the State's failure to inform him of the specific date on which the extraneous offense took place renders the notice insufficient. Background
On April 29, 2005, appellant filed a request for notice of intent to offer extraneous conduct under rule 404(b) and evidence of an extraneous crime or bad act under article 37.0. On March 30, 2007, the State filed a notice of intent to introduce evidence of extraneous offenses and prior convictions for impeachment and punishment. On April 19, 2007, the State filed an amended notice of intent to introduce evidence of extraneous offenses and prior convictions for impeachment and punishment. Trial took place May 29-31, 2007. The State's amended notice of intent to introduce evidence of extraneous offenses and prior convictions stated: From the time Sandra Hernandez was in middle school until she graduated high school the defendant was caught peeping in the window of Sandra Hernandez, on more than one occasion. The defendant was also caught masturbating while peeping in the window of Sandra Hernandez. All of this occurred in Freeport, Texas, in the County of Brazoria. At the punishment phase of trial, when the State called Hernandez to testify, appellant objected that her testimony was inadmissible because the State's notice did not give a specific date on which the extraneous bad acts took place. The State responds that error, if any, in failing to provide a specific date for the extraneous offense was harmless. We agree. Law and Analysis
Article 37.07 of the Code of Criminal Procedure provides: On timely request of the defendant, notice of intent to introduce evidence under this article shall be given in the same manner required by Rule 404(b), Texas Rules of Evidence. If the attorney representing the state intends to introduce an extraneous crime or bad act that has not resulted in a final conviction in a court or record or a probated or suspended sentence, notice of that intent is reasonable only if the notice includes the date on which and the county in which the alleged crime or bad act occurred and the name of the alleged victim of the crime or bad act. Code Crim. Proc. Ann. art. 37.07 § 3(g) (Vernon 2006 Supp. 2007) (emphasis added). Error in admitting evidence with insufficient notice under article 37.07 section 3(g) is nonconstitutional error. Apolinar v. State, 106 S.W.3d 407, 414 (Tex.App.-Houston [1st Dist.] 2003, pet. granted) (aff'd on other grounds) (citing Roethel v. State, 80 S.W.3d 276, 281 (Tex.App.-Austin 2002, no pet.) (concluding that error in admitting extraneous-offense evidence over objection based on article 37.07, section 3(g)'s notice requirement is subject to nonconstitutional harmless-error analysis)). We must disregard any nonconstitutional error that does not affect a substantial right. Tex. R. App. P. 44.2(b). An error affects a defendant's substantial rights when the error had a substantial and injurious effect or influence on the jury's verdict. Apolinar, 106 S.W.3d at 414 (citing King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App. 1997)). If the error had no or only a slight influence on the verdict, the error is harmless. Id. The purpose of article 37.07 is to avoid unfair surprise and to enable the defendant to prepare to answer the extraneous-offense evidence. Id. To determine harm in light of that purpose, we analyze whether and how the deficient notice affected appellant's ability to prepare for the evidence. Id. The appellate court examines the record to determine whether the deficient notice "resulted from prosecutorial bad faith" or "prevented the defendant from preparing for trial," the latter inquiry including whether the defendant was surprised by the substance of the evidence and whether the lack of notice affected his ability to prepare cross examination or mitigating evidence. Id at 414-15 (quoting Roethel, 80 S.W.3d at 282). Error in admitting evidence in violation of a notice requirement does not have an "injurious" effect on the verdict if the defendant was not surprised by the evidence. See Hernandez v. State, 176 S.W.3d 821, 825 (Tex.Crim.App. 2005) (holding that evidence admitted in violation of Rule of Evidence 404(b)'s notice requirement not harmful error if defendant not surprised by evidence). In Roethel, a jury convicted the defendant of aggravated sexual assault, attempted aggravated sexual assault, indecency with a child by contact, and second-degree felony criminal solicitation of a minor, and assessed punishment at life imprisonment. 80 S.W.3d at 278. The State gave notice that it intended to offer evidence at the punishment phase of trial that Roethel had sexually assaulted his sister "when she was a child." Id. at 279. The court held that, although courts have given some leeway regarding dates, the time period given in the notice was too general to satisfy the notice requirement. Id. at 280. Nevertheless, the court held that the error was harmless. Id. at 283. The court noted that there was no indication of bad faith in the State's failure to provide sufficient notice. Id. at 282. The State named the victim, specified the offense, and gave a general idea of when it occurred. Id. The court held that, because there was no indication from the record that the generality of the notice was intended to mislead the appellant or prevent him from preparing for trial, the State did not act in bad faith when it failed to give sufficient notice of its intent to introduce extraneous evidence. Id. The court also held that, because the defendant admitted to the extraneous offense and presented evidence to mitigate the testimony, there was no indication that the insufficient notice caused surprise or prevented the defendant from preparing a defense. Id. at 283. In Apolinar, the defendant argued that the State's notice was insufficient because the State did not inform the defendant of its intent to use evidence of an extraneous offense until the day before trial. 106 S.W.3d at 414. This Court held that even if the admission of the testimony was in error, the error was harmless. Id. at 414. The State did not act in bad faith by giving notice only a day before trial because the State had learned about the extraneous offense the day before trial. Id. at 415. The insufficient notice did not prevent the defendant from preparing for trial because the trial court gave the defendant twenty minutes to interview the witness before testimony began. Id. The defendant did not request more time at the end of the twenty minutes, and nothing suggested to the Court that the twenty minutes was insufficient time to allow him to prepare cross-examination. Id. Additionally, the defendant admitted to his presence at the scene of the extraneous offense, but claimed it was another person who committed the offense. Id. The Court held that nothing showed that the defendant was surprised or unable to defend against the evidence. Id. In this case, appellant argues that the State's notice was inadequate for failure to include a specific date and that the error was harmful because the jury assessed a 60-year prison term in an aggravated sexual assault case that "rested exclusively on the testimony of the victim." However, appellant does not argue that he was surprised by Hernandez's testimony or was unable to prepare cross-examination or mitigating evidence. The State notes that the notice gave appellant a way to determine the exact time period of the offenses, and, even if the notice was insufficient, the error was harmless because the State did not act in bad faith. Although the notice did not sufficiently state the date of the extraneous bad act, it did describe the nature of the act and the name of the witness. Appellant had known Hernandez for 20 years prior to trial, her parents lived next door to appellant, and appellant's sister contacted Hernandez the day before trial. The trial court noted that, although the State's notice was not ideal, the State gave appellant a way to find out the exact dates of the extraneous offense. Because appellant had the ability to contact Hernandez, he could have discovered her age and used that knowledge to determine when she was in middle school. Additionally, the trial court gave appellant time to interview Hernandez before she testified. Appellant does not argue, and nothing in the record indicates, that appellant was surprised by the substance of Hernandez's testimony or that he was unable to prepare for the evidence. At any time during the month-long period between the time the State gave notice and the time of trial, appellant could have contacted Hernandez in order to prepare cross-examination or mitigating evidence. In fact, appellant's sister did contact Hernandez before the trial. Therefore, we hold that, error, if any, was harmless, see Apolinar, 106 S.W.3d at 414, and under the standard for nonconstitutional error, we must disregard it. See Tex. R. App. P. 44.2(b). We overrule appellant's second point of error. CONCLUSION
We affirm the judgment of the trial court.