Stewart v. State

933 S.W.2d 555, 1996 WL 195475

• Court: Court of Appeals of Texas
• Decided: January 22, 1997
• Docket: 04-95-00293-CR
• Status: Published

Opinions

OPINION

LÓPEZ, Justice.

The trial court convicted appellant of sexual assault of a child, found two enhancement paragraphs to be true, and assessed punishment at forty years confinement. In one point of error, appellant challenges the sufficiency of the evidence to support the conviction. We reverse and remand for a judgment of acquittal.

Appellant was indicted for sexual abuse of a child, T.S., occurring on or about July 15, 1992. At the time of the offense, the Code of Criminal Procedure provided that a conviction for sexual assault could be sustained on the uncorroborated testimony of the victim if the victim informed another person of the alleged offense within six months of the date on which the offense allegedly occurred.¹ Act of May 26, 1983, 68th Leg., R.S., ch. 382, 1983 Gen.Laws 2090, 2091. It further provided that the outcry requirement did not apply if the victim was younger than fourteen years of age at the time of the alleged offense.² Id.; see also Scoggan v. State, 799 S.W.2d 679 (Tex.Crim.App.1990) (outcry or corroboration requirement applies to victim between fourteen and seventeen even though victim is too young to be accomplice). It is undisputed in the present case that T.S. did not make any outcry within six months of the date of the alleged offense. It is also uneon-tested that her testimony at trial is not corroborated. The issue, then, is whether there is sufficient evidence to show that T.S. was younger than fourteen years of age at the time of the alleged offense.

T.S. testified that she was born on August 2,1978. For her to be included in the exception to the outcry requirement, the offense must have been committed before August 2, 1992. The following testimony relates to the date of the alleged offense:

Q Back in the summertime, around the time that school started in 1992, did you have sexual intercourse with Terry Wayne Stewart?

A Yes.

Q What grade were you in at the time this happened?

A I was in fifth, I think.

Q Now, [T.S.], do you know exactly what the date was that this happened?

A No.

Q Do you have a point of reference or a time that you believed it happened?

A I think it happened about September.

Q Why do you believe that?

A Because it was near the time school started. i>

Q How is it that you relate that to the time that school started?

A Because it was in the summer.

Q It was the end of summertime?

A Yeah.

Q And you remember that school was about to start?

A Yeah.

Q Had school started yet?

A Yes.

Neither party addresses what standard of proof applies to the issue of proving the victim’s age in this context.³ However, even if we assume that the State need only prove that the victim was younger than fourteen by a preponderance of the evidence, we must conclude that the evidence is insufficient. The great weight and preponderance of the testimony recited above shows that the offense occurred later than August 1, 1992. For example, T.S. testified that she thought the offense occurred in September, that it occurred near the time school started, that it occurred at the end of the summer, and that school had already started at that time. While there is no specific reference to when T.S.’s school started in 1992, her grandmother testified that in 1991 school started toward the end of August.

The State argues that it proved that the offense occurred when T.S. was thirteen years old because T.S. testified that she thought she was in fifth grade at the time: “usually a 5th grade student is younger than 14 years of age.” While the usual fifth grader may well be younger than fourteen, there is no evidence in our record showing that T.S. was younger than fourteen at the time she was in fifth grade.⁴ The State also emphasizes T.S.’s testimony that the offense occurred in the summer. Her specific testimony, however, was that it occurred at the end of the summer. We reject the State’s contention that the “end of summer” or “near the beginning of school” could mean June through August. By common understanding, these points of reference could well include August (a time when T.S. was fourteen) but not June or July (a time when T.S. was thirteen).

Finally, the State argues that the prosecutor set a point of reference by directing T.S.’s attention to “that time in 1992 around July, August, September.” This statement does not constitute any proof that T.S. was younger than fourteen at the time of the offense. First, during August and September, T.S. was fourteen years old, not thirteen. Second, the specific question asked by the prosecutor in relation to this time frame was who was living at a certain house on Catherine Street. The offense in question did not even occur at that house.

Finally, the State urges that the trial court found appellant guilty “as charged in the indictment” and that the indictment alleges that the offense occurred on July 15, 1992. We agree with the State that the trier of fact is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Bowden v. State, 628 S.W.2d 782, 784 (Tex.Crim.App.1982); Penagraph v. State, 623 S.W.2d 341, 343 (Tex.Crim.App.1981). It is free to accept or reject all or. any part of the testimony of any witness. Penagraph v. State, 623 S.W.2d at 343. It is not, however, free to make findings that are without support in the evidence. There is simply no evidence in our record that the offense occurred on July 15, 1992.

Of course, the trial court did not necessarily find that the offense occurred on July 15, 1992, nor was it required to so find. The indictment, as the State is no doubt aware, did not allege that the offense occurred on July 15, 1992. It alleged that the offense occurred “on or about ” July 15,1992. “On or about” is a legal phrase meaning any date anterior to the presentation of the indictment that is not barred by limitation. Mireles v. State, 901 S.W.2d 458, 459 (Tex.Crim.App.1995). The indictment in the present case was presented on August 19, 1994. The relevant statute of limitations was ten years. Thus, a finding that the offense occurred “on or about” July 15, 1992 would include any date between August 19, 1984 and August 19, 1994. This range clearly includes dates after T.S.’s fourteenth birthday on August 2, 1992. Thus, the trial court’s conclusion that appellant was guilty as charged in the indictment does not mean that the court found that the offense occurred on July 15, 1992, or at a time when T.S. was thirteen years old.

We conclude that the State failed to prove that T.S. was younger than fourteen at the time of the offense. Thus, it was required either to prove that she made some outcry within six months or to corroborate her testimony with other evidence. This it failed to do. Without either outcry or corroboration, the evidence is insufficient to support the conviction.

The dissent asserts that the evidence in this case is sufficient to support the conviction because a defense exhibit contains a-statement that appellant sexually assaulted T.S. in 1989, when T.S. was eleven years old. Neither brief mentions any assault having occurred in 1989 or when T.S. was eleven years old, nor is there any testimony in the record concerning any assault in 1989 or when T.S. was eleven years old.⁵ Rather, all of the testimony offered by the State to prove or by the appellant to refute the charged offense focused on the summer of 1992. Further, the statement on which the dissent relies was introduced as a part of a packet of documents offered to show that T.S. had manufactured the charges against appellant.

The evidence shows that T.S. was intimately involved with an older man and that she ran away to live with him. Appellant found her and returned her to her grandmother’s home. T.S. again ran away and informed her family that if they tried to take her back, she would file charges against appellant. T.S. was again found and removed from her boyfriend’s home and immediately filed charges against appellant. The main theme of the defense was that T.S. fabricated the charges against appellant as revenge for being taken away from her boyfriend. Defendant’s exhibit two, which contains the statement regarding a 1989 assault, was introduced in the context of this defense:

THE COURT: When you said that you were going to file charges or something against them if they didn’t quit bringing you back, what kinds of charges were you talking about filing?

[T.S.]: I was talking about the sexual charges because I was running away because he was doing that to me.

THE COURT: Anything further? [PROSECUTOR]: Judge, I have one other question.

[The State then questioned T.S. as to whether she had threatened to bring charges because she was mad and elicited testimony that the prosecutor had to “bug her a lot” to get T.S. to come and testify. Defense counsel then conducted further examination.]

Q. [T.S.], I show you what’s been marked as Defendant’s Exhibit No. 2. That’s a citation in the interest of [T.S.], a child, is that right?

A. Yes.

Q. Does that indicate that?

A. Uh-huh.

Q. This is — contains your statement, does it not?

A. Uh-huh.

Q. On the front page — and other documents also — on the front page, it is true here it does say that this referral was received on July 15th, 1994; is that correct?

A. Uh-huh.

Q. Is that the very day that you were taken away from Eddie?

A. No, I was taken away on the 14th at— real late at night.

Q. On the 14th they take you away from Eddie and on the 15th you filed these charges?

A. Yes.

Q. That’s when you told the people at LeTot?

A. Yes.

[DEFENSE COUNSEL]: Judge, we offer Defendant’s Exhibit No. 2, which is basically the legal documents.

The dissent has taken an isolated statement out of the middle of a fourteen page documentary exhibit offered to show T.S.’s motive for filing charges against appellant. Neither the State nor the defense ever contended that the statement contained therein was offered for the truth of the matter asserted. Indeed, had it been so offered, it could have been subject to a hearsay objection. Neither the State nor the defense ever made any reference in testimony, in argument to the trier of fact, or in their briefs on appeal, to the substance of the statement or the dates contained therein. It is obvious that both parties and the trier of fact considered the exhibit to have been admitted merely to demonstrate the timing of the allegations against appellant and a possible motive for fabrication. Indeed, there is no indication in the record that the trier of fact was aware that the exhibit contained a statement setting the date of the offense in 1989. Certainly neither the State nor the defense made any reference to it in the trial court, just as they have made no reference to it in this court.

The dissent’s position also raises serious due process concerns. The dissent would affirm a conviction for an offense that it concludes occurred in 1989 even though all of the testimony and argument contained in the statement of facts relate solely to offenses alleged to have occurred in 1992 and 1994.⁶ These are the only alleged offenses that were actually litigated. “It is axiomatic that a conviction upon a charge not made or upon a charge not tried constitutes a denial of due process.” Jackson v. Virginia, 443 U.S. 307, 314, 99 S.Ct. 2781, 2786, 61 L.Ed.2d 560 (1979) (emphasis added).

This case is distinguishable from Rankin v. State, No. 1019-94, — S.W.2d - (Tex.Crim.App. January 10, 1996), in which the Court of Criminal Appeals upheld a conviction for an offense other than the offense the State intended to prove. The appellant in Rankin was charged with possession of a controlled substance. The State introduced evidence that a rock of crack cocaine was found underneath the seat of a patrol car in which appellant had been sitting. Appellant testified that he had possessed a rock of crack cocaine earlier that same day, but that the rock found in the patrol car was not his. The State argued to the jury that it could convict appellant based on his judicial admission that he had possessed cocaine earlier in the day. The Court of Criminal Appeals upheld the conviction because the earlier possession of cocaine was not an extraneous offense, but was an act “shown in the charging papers.” Further, appellant’s judicial admission proved every element set out in the indictment and the charge.

Rankin is distinguishable from the present case in a number of respects. First, the evidence there at issue was affirmative testimony offered for the truth of the matter asserted, not just a portion óf a documentary exhibit offered to demonstrate that a statement was made. Second, the possession for which appellant was convicted occurred on the same day as the possession alleged by the State. While this is not dispositive, due process is not implicated in the same manner by such a short time frame as it is when the offense charged and the offense proved are separated by a period of three years. Finally, the evidence showing the earlier possession was specifically pointed out to the trier of fact in argument as a basis for conviction. The State in the present case never requested that the trier of fact convict appellant for an offense occurring in 1989 rather than the alleged offense in 1992.

For all the foregoing reasons, we cannot conclude that the evidence is sufficient to support appellant’s conviction. Appellant’s sole point of error is sustained.

The judgment of the trial court is reversed and the cause is remanded to the trial court with directions to enter a judgment of acquittal.

DUNCAN, J., dissents.

1 . Article 38.07 now requires that the outcry be made within one year of the alleged offense. Tex.Code Crim.Proc Ann. art. 38.07 (Vernon Supp. 1996).

2 . Article 38.07 now provides that outcry is not required if the victim was younger than eighteen at the time of the alleged offense. Tex.Code Crim.Proc.Ann. art. 38.07 (Vernon Supp.1996).

3 . We think it clear that if the State was required to prove that the victim was younger than fourteen for purposes of obtaining a conviction for aggravated sexual assault, the standard of proof would be beyond a reasonable doubt. See Tex.Penal Code Ann. § 22.021(a)(2)(B) (Vernon Supp.1996). In that context, the victim’s age is an element of the offense. In the context of the present case, though, the victim's age does not relate to an element of the offense.

4 . Other evidence relating to T.S.’s age indicates that she was probably mistaken in her belief that she was in fifth grade at the time of the offense. She was bom in 1978 and was sixteen years old at the time of trial. She testified that she had dropped out of the ninth grade. If she was in fifth grade in 1992, she would not have reached ninth grade by the time of trial in 1994.

5 . There is testimony that T.S. began to exhibit a personality change in 1990 or 1991, but this evidence was related to the fact that in late 1990 the house she lived in burned down, a great-grandmother whom she loved very much died, and her grandmother with whom she lived underwent major surgery.

6 . Appellant was granted a directed verdict as to the alleged 1994 offense.