NUMBER 13-13-00650-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
MIGUEL ANGEL AGUILERA, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 138th District Court of Cameron County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Longoria Memorandum Opinion by Chief Justice Valdez
A jury found appellant Miguel Angel Aguilera guilty of first-degree aggravated
sexual assault of a child. See TEX. PENAL CODE ANN. § 22.021(a)(2)(B) (West, Westlaw
through 2015 R.S.). By eight issues, which we have reorganized, Aguilera contends: (1)
the evidence is legally insufficient to prove that S.G., the complainant, was under six years
of age at the time of the offense [issue seven]; (2) the trial court erred in admitting the testimony of the State’s outcry witness [issue one]; (3) the trial court erred in finding that
S.G. was competent to testify [issue three]; (4) the trial court erred in allowing the State
to ask S.G. leading questions on direct examination [issue four]; (5) the trial court erred
in admitting S.G.’s video statement as a prior consistent statement under Texas rule of
evidence 801(e)(1)(B) [issue two]; (6) the evidence is legally insufficient to satisfy the
“penetration” element of aggravated sexual assault of a child [issue eight]; (7) the trial
court erred in admitting a nurse examiner’s medical report, which contained hearsay
statements of S.G. and S.G.’s mother under Texas rule of evidence 803(4) [issue five];
and (8) the State violated Aguilera’s equal protection rights under Batson v. Kentucky,
476 U.S. 79 (1986) by peremptorily striking a disproportionate number of men from the
venire [issue six]. We affirm.
I. Background
On December 13, 2012, S.G. made an outcry that her mother’s ex-boyfriend,
Aguilera, sexually assaulted her at his house. Following S.G.’s outcry, Aguilera was
arrested and charged by way of an indictment with sexually assaulting S.G. The State’s
indictment specifically alleged that on or about March 31, 2012, Aguilera “intentionally or
knowingly caus[ed] the penetration of the sexual organ of S.G., a pseudonym, a child who
was then and there younger than 6 years of age, by [Aguilera’s] finger.” Aguilera pleaded
not guilty to this charge, and the case was called for a jury trial.
At trial, the State admitted Aguilera’s written statement into evidence, wherein he
confessed that:
Around March or April of 2012[,] I was living with [S.G.’s mother and S.G.] at the Villa Madre [Apartments] # 206. One night I was watching T.V. on the sofa when [S.G.] came and sat on my lap. . . . I started to get arouse[d] and put her panties aside and I placed my right hand middle finger inside
2 her vagina. It was only in there for about 5 seconds because [S.G.] said it hurt. I panic[ed] and took out my finger and told her to go to her mom who was in the room asleep.
Also presented at trial was the testimony of S.G., who identified Aguilera by his first name
(Miguel) and, while pointing to a diagram depicting a female sexual organ, testified that
Aguilera touched her “part” with his hand. Over Aguilera’s hearsay objection, the State
also presented the testimony of its outcry witness, Melissa Cardenas, who testified that it
was during an after-school visit with S.G. and S.G.’s mother on December 13, 2012 that
S.G confided in her that Aguilera put his “fingernails” in her female sexual organ and that
this happened at Aguilera’s house. Over another hearsay objection by Aguilera, the State
admitted a video statement that S.G. made on December 14, 2012 to Joanna Frausto, a
forensic interviewer with the children's advocacy center, wherein S.G. related that
Aguilera sexually abused her. Later at trial, the State admitted a redacted version of a
medical report prepared by a forensic nurse who examined S.G. after she made her
outcry to Cardenas. On page twelve of this medical report, S.G. and S.G.’s mother are
quoted relating details to the nurse concerning the timing and the nature of the sexual
abuse.
After presentation of all the evidence, the jury found Aguilera guilty of aggravated
sexual assault of a child under the age of six as charged in the indictment. Aguilera
elected to have the trial court assess punishment, and the judge sentenced him to thirty-
three years’ imprisonment. This appeal followed.
II. Discussion
A. Legal Sufficiency
3 By his seventh issue, Aguilera contends that the evidence is legally insufficient to
prove that S.G. was under the age of six when he sexually assaulted her. In reviewing
the legal sufficiency of the evidence to support a criminal conviction, we view the evidence
in the light most favorable to the prosecution and then ask whether “any rational trier of
fact could have found the essential elements of the crime beyond a reasonable doubt.”
See Jackson v. Virginia, 443 U.S. 307, 319 (1979); see also Brooks v. State, 323 S.W.3d
893, 902 n.19 (Tex. Crim. App. 2010). Under this standard of review, the jury is the
“exclusive judge of the credibility of witnesses and of the weight to be given testimony,
and it is also the exclusive province of the jury to reconcile conflicts in the evidence.”
Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000).
A person commits the offense of aggravated sexual assault of a child if the person
intentionally or knowingly causes the penetration of the sexual organ of a child under the
age of six, by any means. See TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(i), (iv). In this
case, the indictment alleged that Aguilera sexually assaulted S.G. “on or about March 31,
2012.” Thus, in order to satisfy the age element of this offense, the State had to present
evidence that S.G. was under the age of six “on or about March 31, 2012.” Here, the jury
heard undisputed evidence that S.G. was born on June 6, 2006, allowing them to
reasonably infer that S.G. was five years of age on or about March 31, 2012.
Furthermore, Aguilera confessed that the sexual abuse occurred “[a]round March or April
2012,” which was before S.G.’s sixth birthday in June of that year. 1 Therefore, we
conclude that the jury, as a rational trier of fact, could have determined that the abuse
described by S.G. and confessed to by Aguilera occurred when S.G. was under the age
1Aguilera argues that the trial court should have made an affirmative finding that S.G. was under the age of six. However, he provides no authority to support this proposition, and we find none.
4 of six. See Brooks, 323 S.W.3d at 902 n.19; see also Dekneef v. State, 379 S.W.3d 423,
429 (Tex. App.—Amarillo 2012, pet. ref'd) (finding the evidence sufficient to support the
jury’s verdict that the victim was under the age of six based on evidence of the victim’s
date of birth, coupled with other evidence that the victim was still under the age of six
when the defendant moved out of the house where the sexual abuse occurred). We
overrule Aguilera’s seventh issue.
B. Outcry Witness
By his first issue, Aguilera contends that the trial court should have excluded
Cardenas’ testimony concerning S.G.’s December 13, 2012 outcry because the State
failed to provide him sufficient notice of its intent to call Cardenas as an outcry witness
pursuant to Texas code of criminal procedure article 38.072. See TEX. CODE CRIM. PROC.
ANN. art. 38.072, § 2(a), (b) (West, Westlaw through 2015 R.S.). Aguilera argues that
because the State’s notice was deficient, Cardenas’ outcry testimony was not admissible
under article 38.072 and therefore constituted inadmissible hearsay.
1. Applicable Law and Standard of Review
There is no dispute that S.G.’s December 13, 2012 outcry to Cardenas was
hearsay. Hearsay statements are not admissible in Texas unless otherwise provided by
the rules of evidence or by statute. See TEX. R. EVID. 802. Article 38.072 creates a
statutory exception to the rule against hearsay for statements of child-abuse victims if
certain conditions are met. Davidson v. State, 80 S.W.3d 132, 135–36 (Tex. App.—
Texarkana 2002, pet. ref'd) (citing TEX. CODE CRIM. PROC. ANN. art. 38.072). Article
38.072 provides that in sexual offense cases committed against a child, a statement that
was made by the child to the first adult about the offense will not be inadmissible because
5 of the hearsay rule. TEX. CODE CRIM. PROC. ANN. art. 38.072, § 2(b)(1)(A). In order for
this hearsay exception to apply, the State must notify the defendant of its intention to offer
such statement on or before the fourteenth day before trial begins. Id. The purpose of
this fourteen-day requirement is to avoid surprising the defendant with the introduction of
outcry hearsay testimony. See Gay v. State, 981 S.W.2d 864, 866 (Tex. App.—Houston
[1st Dist.] 1998, pet. ref’d). To achieve this purpose, the State must provide the name of
the witness through whom it intends to offer the child’s statement and a written summary
of the statement. TEX. CODE CRIM. PROC. ANN. art. 38.072, § 2(b)(1)(C)–(D); Davidson,
80 S.W.3d at 136. The notice is sufficient if it reasonably informs the defendant of the
essential facts related in the outcry statement. Davidson, 80 S.W.3d at 136. The trial
court has broad discretion to determine whether a child’s statement is admissible under
article 38.072. See Reed v. State, 974 S.W.2d 838, 841 (Tex. App.—San Antonio 1998,
pet. ref'd). The exercise of that discretion will not be disturbed on appeal unless the
record shows a clear abuse of discretion. Id.
2. Analysis
The record in this case shows that more than fourteen days before trial, the State
provided written notice to Aguilera of its intention to offer S.G.’s outcry statement through
Cardenas. See TEX. CODE CRIM. PROC. ANN. art. 38.072, § 2(b)(1)(A). The State
specifically identified Cardenas by name in its notice and also provided a written summary
of the outcry S.G made to her on December 13, 2012. See id. art. 38.072, § 2(b)(1)(C)–
(D). Aguilera does not argue on appeal that the State’s notice suffered from any
deficiency of substance or otherwise failed to inform him of the essential facts concerning
S.G.’s outcry to Cardenas. Instead, Aguilera argues that the State’s notice caught him
6 by surprise because it also contained a summary of S.G.’s video statement to Joanna
Frausto at the children’s advocacy center on December 14, 2012, which, in relevant
substance, repeated the outcry that S.G. made to Cardenas the day before. Aguilera
asserts that by identifying both Cardenas and Frausto as outcry witnesses for the same
sexual conduct alleged, the State’s notice failed to identify the first adult to whom S.G.
made an outcry. However, the State’s notice indicates that on December 13, 2012, S.G.
told Cardenas what Aguilera had done to her and that she repeated it to Frausto the next
day. Because there was never any confusion as to the sequential order of S.G.’s outcries
in the State’s notice, we cannot agree with Aguilera that the State failed to identify the
first adult to whom S.G. made an outcry. Furthermore, Aguilera provides no authority to
support his argument that the State fails to give proper notice under article 38.072 when
it identifies two possible outcry witnesses in sequential order for the same conduct
alleged, and we find none. We therefore conclude that the trial court did not abuse its
discretion in finding that S.G.’s outcry to Cardenas, though hearsay, was admissible
under article 38.072. See TEX. R. EVID. 802; see also TEX. CODE CRIM. PROC. ANN. art.
38.072. We overrule Aguilera’s first issue.
C. S.G.’s Competence to Testify
By his third issue, Aguilera contends that the trial court erred in finding that S.G.
was competent to testify.
Texas rule of evidence 601(a) states that “[e]very person is competent to be a
witness” unless otherwise excluded under the rule. TEX. R. EVID. 601(a). Rule 601(a)
further states that “persons lacking sufficient intellect” are incompetent to testify, including
a child “whom the court examines and finds lacks sufficient intellect to testify concerning
7 the matters in issue.” Id. Three elements must be considered by a reviewing court in
determining whether a child witness is competent to testify: (1) the competence to
observe intelligently the events in question at the time of their occurrence; (2) the capacity
to recollect the events; and (3) the capacity to narrate them, which involves the ability to
understand questions asked and to frame intelligent answers, and the ability to
understand the moral responsibility to tell the truth. Reyna v. State, 797 S.W.2d 189,
191–92 (Tex. App.—Corpus Christi 1990, no pet.); Hollinger v. State, 911 S.W.2d 35, 39
(Tex. App.—Tyler 1995, pet. ref'd). The determination of a trial court that a child witness
is competent to testify is reviewed for an abuse of discretion. See Reyna, 797 S.W.2d at
191. In conducting this review, we must consider all the testimony of the child witness,
including any testimony at a competency hearing. Id.
Here, S.G. was seven years of age at the time of trial and five years of age at the
time of the offense. See Hollinger, 911 S.W.2d at 38 (holding that the child, who was four
years of age at the time of trial, was competent to testify about being victimized when he
was three years of age). S.G. knew her name, her age, her hometown, the name of her
first-grade teacher, and she knew the difference between the truth and a lie. See id.
(concluding that a child was competent to testify after correctly answering questions
concerning his family, his name, his birthday, and after acknowledging the difference
between the truth and a lie). Furthermore, during questioning about the events giving rise
to the prosecution, S.G. identified Aguilera by his first name (Miguel) and recollected that
he touched her “part” with his hand, which she described by circling an area of a diagram
depicting a female sexual organ. See id. (determining that a child was competent to
8 testify after identifying the defendant as the one who “hurted” him and remembering that
he told his mother a long time ago that defendant had hurt him).
We acknowledge that S.G. had some difficulty recalling certain events surrounding
the sexual assault, such as her video statement at the child advocacy center, and she
gave mostly one-to-two worded answers to the questions put to her by the trial court and
the trial attorneys. However, the record also reflects that she was seven years old at the
time of trial, in first grade, and being called upon to recollect a traumatic event in a
courtroom setting. See id. (holding that the trial court did not abuse its discretion in finding
that a child was competent to testify even though he did not provide much detail
concerning the alleged assault).
After reviewing all of S.G.’s testimony, we hold that she was competent to
intelligently observe the sexual-assault event at the time it happened; she had sufficient
capacity to recollect that event; and she was able to frame intelligent, age-appropriate
answers to the questions put to her by the parties while understanding the moral
responsibility to tell the truth. See id. Therefore, we conclude that the trial court did not
abuse its discretion in finding that S.G. possessed sufficient intellect to testify concerning
the matters in issue. See TEX. R. EVID. 601(a). We overrule Aguilera’s third issue.
D. Leading Questions to S.G. on Direct Examination
By his fourth issue, Aguilera complains that the trial court erred in overruling his
objections to leading questions put to S.G. by the State during direct examination.
Texas Rule of Evidence 611(c) provides that “leading questions should not be used
on direct examination except as may be necessary to develop the testimony of the
witness.” TEX. R. EVID. 611(c) (emphasis added). The general rule against leading
9 questions is relaxed with child witnesses—particularly among those exhibiting a learning
disability. See Clark v. State, 952 S.W.2d 882, 886 (Tex. App.—Beaumont 1997, no pet.)
(citing Moon v. State, 856 S.W.2d 276, 279 (Tex. App.—Fort Worth 1993, pet. ref’d)); In
re J.A.W., 976 S.W.2d 260, 262 (Tex. App.—San Antonio 1998, no pet.) (holding that the
trial court had the discretion to allow leading questions on the direct examination of a child
in special education classes with a learning disability); see also Trevino v. State, 783
S.W.2d 731, 733 (Tex. App.—San Antonio 1989, no writ) (same). In such cases, courts
hold that leading a child witness on direct examination is necessary to develop his or her
testimony. In re J.A.W., 976 S.W.2d at 262; Trevino, 783 S.W.2d at 733. Permitting
leading questions lies within the sound discretion of the trial court, which calls for reversal
on appeal only when that discretion has been abused. Newsome v. State, 829 S.W.2d
260, 270 (Tex. App.—Dallas 1992, no pet.); See Hernandez v. State, 643 S.W.2d 397,
400 (Tex. Crim. App. 1982).
In this case, S.G. was seven years old at the time of trial, and S.G.’s mother
testified that S.G. tested for special education, had a learning disability, and had to repeat
the first grade. Under these circumstances, we hold that the trial court did not abuse its
discretion in allowing the State to ask S.G. leading questions on direct examination in
order to develop her testimony. See Uhl v. State, 479 S.W.2d 55, 57 (Tex. Crim. App.
1972) (holding that the “asking of leading questions will seldom be a ground for reversal
especially where a child is testifying[.]”). We overrule Aguilera’s fourth issue.
E. S.G.’s Video Statement to Joanna Frausto as a Prior Consistent Statement
By his second issue, Aguilera contends that the trial court erred in admitting S.G.’s
December 14, 2012 video statement to Frausto at the children’s advocacy center as a
10 prior consistent statement under Texas rule of evidence 801(e)(1)(B). See TEX. R. EVID.
801(e)(1)(B). We review a trial court’s determination that a prior consistent statement is
admissible under rule 801(e)(1)(B) for an abuse of discretion. See Hammons v. State,
239 S.W.3d 798, 806 (Tex. Crim. App. 2007). Under this standard, we must affirm the
trial court unless the decision was so clearly wrong as to lie outside the zone of
reasonable disagreement. Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003).
The relevant facts are as follows. At trial, S.G. testified on direct examination that
Aguilera touched her “part” with his hand. On cross examination, Aguilera asked S.G. to
recount the number of times she met with each attorney representing the State before
trial; S.G. answered “10 times” as to each State’s attorney. On re-direct, the State moved
to admit S.G.’s December 14, 2012 video statement at the children’s advocacy center, in
which S.G. related that Aguilera sexually abused her. Over Aguilera’s hearsay objection,
the trial court admitted S.G.’s video statement as a prior consistent statement under
Texas rule of evidence 801(e)(1)(B). See TEX. R. EVID. 801(e)(1)(B) (providing that a prior
consistent statement of a testifying witness is not hearsay if it is offered to rebut an
express or implied charge that the witness acted from a recent improper influence or
motive in so testifying).
To be admissible under rule 801(e)(1)(B), S.G.’s video statement had to meet the
following four requirements: (1) S.G. testified at trial and was subject to cross
examination; (2) Aguilera expressly or impliedly accused S.G. of being improperly
influenced or motivated to provide testimony substantiating the allegation of sexual abuse
contained in the State’s indictment; (3) S.G.’s video statement was consistent with her in-
court testimony; and (4) S.G.’s video statement was made prior to the time that the
11 supposed improper influence or motive to testify arose. See TEX. R. EVID. 801(e)(1)(B);
see also Hammons, 239 S.W.3d at 804 (citing rule 801(e)(1)(B)). Here, S.G. testified at
trial and was subject to cross-examination (first requirement); her testimony concerning
sexual abuse was generally consistent with her video statement (third requirement); and
her video statement was made before the State’s attorneys met with her to prepare for
trial (fourth requirement). However, the question for our review concerns the second
requirement—specifically, whether Aguilera’s cross examination of S.G. regarding the
number of times she met with the State’s attorneys impliedly accused S.G. of being
improperly influenced or motivated by the State’s attorneys to provide testimony
substantiating the allegation of sexual abuse contained in the State’s indictment.
To determine whether cross examination of a witness makes an implied charge of
improper influence or motive sufficient to satisfy the second requirement, we focus on the
“purpose of the impeaching party, the surrounding circumstances, and the interpretation
put on them by the trial court.” Hammons, 239 S.W.3d at 808. We also consider the
totality of the questioning, give deference to the trial judge's assessment of the tone and
tenor of the questioning, and look for “clues” from the impeaching party’s voir dire,
opening statement, and closing argument that might reveal whether the cross
examination at issue made an implied charge of improper influence or motive. See id.
Here, the circumstances surrounding Aguilera’s cross examination support a
finding that he made an implied charge of improper influence or motive by inquiring into
the number of times S.G. had met with the State’s attorneys prior to trial. The record
shows that before cross examining S.G., Aguilera sought to have the trial court deem
S.G. incompetent to testify, in large part, because she was only able to respond to leading
12 questions and could not answer anything without being “prompted.” The record also
shows that after Aguilera was unsuccessful in deeming S.G. incompetent to testify, the
first major topic he explored on cross examination was whether she had ever met with
the State’s attorneys and, if so, how many times. When S.G. answered that she had met
with the State’s attorneys ten times prior to trial, Aguilera sowed the seed of innuendo by
asking her to agree that ten meetings with the State represented “a bunch” of meetings—
a seed which came to full fruition during closing argument when Aguilera suggested, not
so subtly, that these “multiple” meetings might have influenced S.G. to testify about sexual
abuse that never actually occurred simply to please the State’s attorneys. Under these
circumstances, we cannot say that the trial court abused its discretion in finding that the
State was allowed to show the jury that it was not S.G.’s meetings with the State’s
attorneys that caused her to testify about sexual abuse because she had said the same
thing in a video statement before the meetings occurred. See id. (observing that the
defendant sowed the “seed of innuendo” by subtly implying on cross examination that the
sexual-assault victim’s civil attorney improperly influenced her recollection of certain
events in the criminal trial—a seed which, according to the court of criminal appeals,
“came to full fruition” during closing argument when the defendant expressly accused the
victim of fabricating evidence with her civil attorney). We conclude that the trial court did
not abuse its discretion in finding that S.G.’s video statement met all four elements under
rule 801(e)(1)(B) and therefore was properly admissible as a prior consistent statement.
See id. We overrule Aguilera’s second issue.2
2 By his eighth issue, Aguilera contends that the evidence would be legally insufficient to support
the “penetration” element of aggravated sexual assault of a child “if” we find that the trial court erred in admitting S.G.’s December 13, 2012 outcry to Cardenas and her December 14, 2102 video statement to Frausto into evidence. First, Aguilera’s eighth issue is moot because, as we discussed above, the trial
13 F. Medical Report
By his fifth issue, Aguilera contends that the trial court erred in admitting a forensic
nurse’s medical report, which contained hearsay statements of S.G. and S.G.’s mother
concerning the timing and the nature of the sexual abuse alleged. The complained-of
statements appear on page twelve of the report, wherein the forensic nurse quotes
verbatim the following statements that S.G. and S.G.’s mother made to her:
[S.G.] states: Miguel. He touched that part ([S.G.] indicates female sexual organ by pointing). With his one hand. On top of the clothes and under the clothes. Not inside. I was asleep and then he touched me. I woke up and he was here (patient indicates placement with hand) and I was here (patient demonstrates by moving hand toward her). I told my mom. It was a long time ago. When we were living with him.
....
[S.G.’s mother] states: [S.G.] told my sister and her cousin that [Aguilera] had touched her again. She hasn’t told me anything. I asked why she didn’t tell me and she said she was scared she was going to get spanked.
Aguilera contends that because S.G. and S.G.’s mother did not make these
statements for the purpose of medical diagnosis of treatment, they fell outside the
applicable hearsay exception for those types of statements under Texas rule of evidence
court properly admitted S.G.’s statements to Cardenas and Frausto. And second, more importantly, Aguilera’s eighth issue would invite misapplication of the legal sufficiency standard. It is well settled law that in reviewing a legal sufficiency point, we must consider all the evidence admitted at trial—even the erroneously admitted evidence. See Roeder v. State, 688 S.W.2d 856, 859 (Tex. Crim. App. 1985). As such, whether improperly admitted or not, we would have to consider S.G.’s statements to Cardenas and Frausto in reviewing the legal sufficiency of the evidence to support the penetration element of aggravated sexual assault of a child. Therefore, we summarily overrule Aguilera’s eighth issue. See id. (summarily refusing to consider defendant’s issue because it would invite misapplication of the legal sufficiency standard).
14 803(4). See TEX. R. EVID. 803(4) (providing that statements made for medical diagnosis
or treatment are admissible as an exception to hearsay). However, by not objecting to or
obtaining a ruling on the admissibility of these statements at trial, Aguilera waived this
issue for our review.
The record reflects that when the State sought to admit an original version of the
forensic nurse’s report into evidence, Aguilera objected on hearsay grounds. The trial
court then made redactions responsive to Aguilera’s objection. The record further reflects
that after the trial court redacted the report, Aguilera reviewed it and affirmatively stated
that he had “no objection to it as redacted[.]” The trial court then admitted the redacted
report into evidence, which contained the complained-of statements quoted above. Thus,
not only did Aguilera fail to object to the admissibility of the statements about which he
now complains, the record shows that he affirmatively stated that he had “no objection”
to them. See Bunton v. State, 136 S.W.3d 355, 366 (Tex. App.—Austin 2004, pet. ref'd)
(holding that appellate complaints concerning the admissibility of evidence must be
preserved by proper objection at trial). And to the extent that Aguilera challenges the
correctness of the trial court’s redactions on appeal, he has waived the complaint by
failing to object or obtain an adverse ruling from the trial court on that basis. See TEX. R.
APP. P. 33.1(a) (providing that the appellant must preserve an appellate complaint in the
trial court by making a timely objection that states the grounds for the complaint and by
securing an adverse ruling on those grounds). We therefore overrule Aguilera’s fifth
issue.
G. The Batson Challenge
15 By his sixth issue, Aguilera contends that the State violated his equal protection
rights under Batson v. Kentucky by peremptorily striking a disproportionate number of
men from the venire. See 476 U.S. 79 (1986). The State responds that Aguilera did not
preserve this issue for appellate review. We agree with the State.
The Equal Protection Clause of the Fourteenth Amendment to the United States
Constitution forbids a prosecutor to peremptorily challenge potential jurors solely on
account of their race or gender. See id. at 89 (prohibiting the use of preemptory strikes
based on race); see also J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994) (prohibiting
the use of preemptory strikes based on gender). A challenge raised under this
constitutional prohibition is commonly referred to as a “Batson challenge.” See generally
Batson, 476 U.S. at 89. Each state is responsible for implementing the constitutional
prohibition recognized in Batson. See id. at 100 n.24.
To codify and implement this prohibition in Texas, the Legislature enacted article
35.261 of the Texas code of criminal procedure. See Hill v. State, 827 S.W.2d 860, 863
(Tex. Crim. App. 1992). Under article 35.261, a defendant making a Batson challenge
must do so “before the court has impanelled the jury”—otherwise, courts consider the
challenge forfeited as untimely. See Yarborough v. State, 947 S.W.2d 892, 899 (Tex.
Crim. App. 1997); Alexander v. State, 866 S.W.2d 1 n.8 (Tex. Crim. App. 1993); Hill, 827
S.W.2d at 863; Cooper v. State, 791 S.W.2d 80 (Tex. Crim. App. 1990); Woods v. State,
301 S.W.3d 327, 336 (Tex. App.—Houston [14th Dist.] 2009, no pet.); Saldivar v. State,
980 S.W.2d 475, 482–84 (Tex. App.—Houston [14th Dist.] 1998, pet. ref'd); Redman v.
State, 848 S.W.2d 710, 715 (Tex. App.—Tyler 1992, no pet.); Bucciarelli v. State, 793
S.W.2d 289, 291 (Tex. App.—Corpus Christi 1990, pet. ref'd). A jury is “impanelled” when
16 the members of the jury have been selected and sworn. See Hill, 827 S.W.2d at 864.
Here, the record clearly reflects that Aguilera made his Batson challenge after the jury
had been selected and sworn. Therefore, Aguilera failed to preserve his sixth issue for
appellate review. See Hill, 827 S.W.2d at 864; Saldivar, 980 S.W.2d at 482–84. We
overrule Aguilera’s sixth issue.
III. Conclusion
We affirm Aguilera’s conviction.
/s/ Rogelio Valdez ROGELIO VALDEZ Chief Justice
Do Not Publish. TEX. R. APP. P. 47.2(b).
Delivered and filed the 24th day of November, 2015.