Evans v. State

769 S.W.2d 319, 1989 Tex. App. LEXIS 1275, 1989 WL 49903
Court of Appeals of Texas·Decided March 30, 1989·No. No. 05-88-00105-CR·Published·Cited by 5 cases

Opinion

LAGARDE, Justice.

Robert Evans, Jr. (Evans), appeals his conviction by a jury for aggravated sexual assault of a child. The jury assessed punishment at confinement for twenty years in the Texas Department of Corrections. In two points of error, Evans asserts that: (1) the evidence was insufficient to support a conviction in that the State failed to provide any evidence that the incident which was alleged to have occurred on or about January 15, 1987, actually occurred within the statute of limitations and anterior to the presentment of the indictment; and (2) the conviction is void since the special prosecutor failed to execute an oath as required by article 2.07 of the Texas Code of Criminal Procedure. We disagree with both points of error; consequently, we affirm.

The facts in this case show that the thirteen-year-old complainant was Evans’ stepdaughter. On or about January 15, 1987, Evans approached the complainant while his wife, the child’s biological mother, was not at home. Evans took off the child’s pants and touched her vaginal area with his penis. Several incidents of this nature occurred on or around January 15, 1987. In fact, repeated incidents of this type had occurred over the six-year period that Evans had been married to the complainant’s mother.

On some occasions, Evans would make contact between his mouth and the child’s vaginal area, and, on other occasions, he would make contact between his penis and the child’s vaginal area or stomach. On at least some of these occasions, he would ejaculate on her stomach or vaginal area. To keep the child from revealing these incidents, Evans told the child that he would hurt her mother “real bad” if she told anyone.

Eventually, the complainant slipped a note into her mother’s purse and alerted her mother to the sexual abuse that was taking place. The police were contacted, and, subsequently, on October 8, 1987, a grand jury returned a true bill of indictment charging Evans with aggravated sexual assault of a child. On November 30, 1987, the trial court entered an Order Disqualifying Counsel and Appointing Special Prosecutor. The trial commenced on January 20, 1988.

For a clear understanding of what Evans alleges in his first point of error, we must first set out the applicable law. The Court of Criminal Appeals has held that the State is not bound by the date on or about which the offense is alleged to have been committed, and a conviction may be had upon proof that the offense was committed at any time prior to the return of the indictment and within the period of limitation. Swabado v. State, 597 S.W.2d 361, 363 (Tex.Crim.App.1980); TEX.CODE CRIM. PROC.ANN. art. 21.02(6).

In a two-pronged attack, Evans first claims that the evidence was insufficient to establish the date of the offense alleged in the indictment. Second, Evans claims that the evidence actually showed that the offense was committed approximately eight years prior to the return of the indictment, and, as a result, the offense was outside the period of limitation.

In relation to the first prong of Evans’ attack, we find that the evidence was sufficient to establish the date of “on or about January 15, 1987.” The thirteen-year-old complainant testified in response to the prosecutor’s questioning as follows:

Q Okay. _, I want you to think back now to about the 15th. On or about, okay? The 15th day of January, 1987. Okay?
A Yes.
Q Where were you living at that time?
A On 18th Street.
Q Is that in Plano?
A Yes.
[321]*321Q Is that in Collin County?
A Yes.
Q And Collin County is in the State of Texas?
A Yes.
Q I’m sorry. I have to ask a couple of questions that might seem strange. Okay. On or about that day, did your stepfather, Robert Evans, Jr., make physical contact with you?
A Yes.
Q Where were you? At home?
A Yes.
Q Okay. Was your mother at home at the time?
A No.
Q Where in the house did this happen?
A Sometimes in the living or in the bedroom.

[Objection Interposed]

Q (By Mr. Morgan) All right. First of all — I’m sorry,_Let me ask you a couple of questions real quick. You’re thirteen years old; is that right?
A (By the witness) Yes.
******
Q Okay. Did Robert Evans ever contact you, make physical contact with you when you — on or about that day when you were in your bedroom?
A Yes?
Q Okay. And how did this happen? What happened? Let me ask you: was it at night?
A Sometimes.
Q Can you think of one time when it was at night around that date?
A Does it have to be in that house — Oh, well, no.
Q Okay. How about in the daytime?
A Yes.
Q Did you have your clothes on?
A I did. He would take them off me.
Q Okay. You originally had your clothes on?
A Yes.
Q Okay. And did he make you take them off?
A He would take them off me.
Q He took them off.
* * * ⅜ * *
Q (By Mr. Morgan) Again, we don’t have to talk exactly on the 15th of January. Do you understand that?
A (By the witness) Yes.
Q We have to talk on or about that date. All right. So that gives us some range. All right?
A Yes.
Q Okay. I want you to give me a particular incident that occurred. Tell me where it occurred, that you can think of in your mind, where did it occur?
A In the living room.
Q Of your house in Plano?
A Yes.
Q Did it occur in the daytime or at nighttime?
A At night.
Q Okay. Did you (sic) stepfather approach you?
A Yes.
Q Did he put you on the floor?
A We were — That’s where I was.
Q Okay. Why were you there?
A Because we had just moved into that house and it — that’s where we slept.
Q Hadn’t gotten the furniture over yet?
A Yeah.
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Evans v. State, 769 S.W.2d 319, 1989 Tex. App. LEXIS 1275, 1989 WL 49903 (Tex. Ct. App. 1989).

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