De Leon v. State

771 S.W.2d 569, 1989 Tex. App. LEXIS 970, 1989 WL 37931
CourtCourt of Appeals of Texas
DecidedApril 20, 1989
DocketNo. 13-87-512-CR
StatusPublished
Cited by4 cases

This text of 771 S.W.2d 569 (De Leon v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
De Leon v. State, 771 S.W.2d 569, 1989 Tex. App. LEXIS 970, 1989 WL 37931 (Tex. Ct. App. 1989).

Opinion

OPINION

DORSEY, Justice.

A jury found appellant, Eduardo De Leon, guilty of aggravated sexual assault and assessed punishment at 35 years’ imprisonment. Appellant now complains of the judgment by six points of error. We set aside the judgment and remand the cause to the trial court.

[570]*570The evidence as presented by the State may be summarized as follows. The victim, an eleven-year-old girl, testified that her Aunt Norma had married appellant before the victim started the fourth grade. On several occasions when she would visit her aunt, appellant would grab her, fondle her, and sometimes penetrate her sexual organ with his own; she could not remember the dates on which these incidents occurred. She then specifically stated that during the weekend following her tenth birthday, April 17, 1986, appellant began touching her and would not let her leave his house; he then caused his sexual organ to penetrate hers. The victim stated that she remembered the incident took place on the Saturday after her birthday, or April 19, 1986.

Dora Rodriguez, a nurse’s aid at the victim’s elementary school, testified that on May 6, 1986, the victim informed her and the school counselor, Olga Quintero, that appellant had been “touching her in a bad way.” Pediatrician Dr. Jorge Kutagata also took the stand and stated that he examined the victim on May 6, 1986, and was of the opinion that the victim had definitely been sexually abused.

The indictment charges that “on or about” the 19th day of April, 1986, appellant intentionally and knowingly caused his sexual organ to penetrate that of the victim at a time when the victim was younger than 14 years of age.

Appellant does not challenge the sufficiency of the evidence to support his conviction. By his first and second points of error, he contends the trial court erred in charging the jury as follows:

you are instructed that the State has specifically elected to stand on the offense, if any, allegedly committed, if it was, on or about the 19th day of April, 1986, and not on any other offense, if any, alleged in the indictment, (emphasis added).

At trial appellant moved for the State to elect which sexual assault it was relying on and sought an instruction pursuant to that election that the alleged offense occurred on April 19, 1986. The State objected to appellant’s proposed instruction; the court overruled the objection, but announced the following morning that it was changing the wording from “on the 19th” to “on or about the 19th.”1 Appellant now contends that the complained-of instruction allowed the jury to consider all of the acts of sexual intercourse about which the victim testified, and essentially amounted to no election.

It is undisputed that this case, which involved testimony about several acts of sexual abuse occurring over a two-year period, was one in which the State was required to elect which specific assault it was basing its prosecution upon. See Crawford v. State, 696 S.W.2d 903, 970 (Tex.Crim.App.1985). At issue is whether the wording of the court’s charge in fact authorized a conviction for any of the sexual assaults testified to at trial.

We recognize that when the language “on or about” is used in an indictment, the State is not bound by the specific date alleged, and a conviction may be had upon proof that the offense was committed any time prior to filing of the charging instrument that is within the period of limitation. See Ex parte Alexander, 685 S.W.2d 57, 59 (Tex.Crim.App.1985); Green v. State, 736 S.W.2d 218, 220 (Tex.App.—Corpus Christi 1987, no pet.).

Courts have customarily applied this broad definition in cases where a variance between the date of the offense alleged in the charging instrument and the date reflected by the evidence is claimed. See Alexander, 685 S.W.2d at 59; Green, 736 S.W.2d at 220. The issue in those cases is whether the evidence will support a conviction under the allegations of the indictment. The purpose of applying the definition in such instances is presumably to [571]*571excuse inadvertent errors made in an indictment or information where the evidence clearly reflects the actual date of the offense and where such date falls within the limitations period.

In the case at bar, we are not concerned with the sufficiency of the indictment. Our inquiry relates solely to the specificity of the court’s charge and whether its “on or about” language, which was not defined for the jury,2 was so broad as to obstruct appellant’s right to force an election by the State. We therefore disagree with appellant’s assertion that the broad definition set forth in Ex parte Alexander necessarily applies to the “on or about” language used in the charge.

The victim stated at trial that her tenth birthday was on Thursday, April 17, 1986; that she went to see her grandmother during the weekend following her birthday; and that from there she had gone to visit appellant and her aunt. She could not remember whether she arrived at her grandmother’s on Friday, Saturday, or Sunday. When asked whether anything happened on April 19, the victim initially responded “no.” Although she later stated that she remembered that appellant had in fact sexually assaulted her on the Saturday after her birthday, she did not specify what time of the day or night the assault took place, or whether it actually happened after midnight on April 19th.

A common sense construction of the “on or about” language would allow the jury to convict appellant for any sexual assault occurring any time during the weekend following the victim’s tenth birthday. Given the ambiguity of the victim’s testimony as to the exact dates and times, such a construction would certainly be reasonable here. Considering this in addition to the presence of the extraneous offense instruction in paragraph VI of the charge, (which instructed the jury not to consider any evidence of “other” offenses except for the purpose of aiding them in deciding whether the particular act relied on by the State, as charged in the indictment, was committed), we conclude that the trial court’s use of the phrase “on or about” effectively limited the State’s case and did not interfere with appellant’s right to force an election under Crawford. Points one and two are overruled.

Appellant argues by his third point that the trial court erred in overruling his objection to the following portion of the State’s jury argument at the guilt-innocence phase of trial:

By your verdict you will be telling [the victim] that it was right to tell on Uncle Eddie. You will be telling Edna that it was right for her to tell. Or you will be telling her child molester he can get away with it. Your (sic) just a little girl that doesn’t matter. You’re not important. This child molester is not going to be punished for what he did to you.
MR. CISNEROS: May it please the Court, at this time the defense is going to object on the grounds that she is now making — she is making reference to — directly to the matter of punishment and at this time we ask the Court to instruct the jury to disregard that comment, Your Honor.

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Bluebook (online)
771 S.W.2d 569, 1989 Tex. App. LEXIS 970, 1989 WL 37931, Counsel Stack Legal Research, https://law.counselstack.com/opinion/de-leon-v-state-texapp-1989.