AT AUSTIN
NO. 3-93-342-CR
ROGELIO FERNANDEZ,
APPELLANT
vs.
THE STATE OF TEXAS,
APPELLEE
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 167TH JUDICIAL DISTRICT
NO. 0915029, HONORABLE MICHAEL LYNCH, JUDGE PRESIDING
PER CURIAM
A jury found appellant guilty of aggravated sexual assault of a child. Tex. Penal Code Ann. § 22.021 (West 1989). The district court assessed punishment at imprisonment for twenty-eight years.
The indictment alleged that on or about April 5, 1990, appellant sexually assaulted a child younger than fourteen years of age by penetrating the anus of the child with his penis and finger, by contacting the anus of the child with his penis, and by contacting the child's sexual organ with his mouth. Penal Code § 22.021(a)(1)(B)(i), (iii), (iv) & (a)(2)(B). (1) The testimony of the complaining witness, together with that of his mother and other witnesses, supports the conclusion that the assaultive conduct took place between December 1989 and April 1990, when the boy, his mother, and appellant were living together in an apartment on Daphney Street in Austin. The district court instructed the jury that
the State is not required to prove the exact date alleged in the indictment, but may prove the offense, if any, to have been committed at a time prior to the presentment of the indictment, so long as said offense, if any, occurred within 10 years of the date of the presentment of the indictment.
In his two points of error, appellant contends the limitation period for sexual assault of a child is five years, not ten years as the district court instructed, and that the evidence is legally insufficient to prove beyond a reasonable doubt that the offense was committed within the limitation period.
Any offense titled "aggravated" carries the same limitation period as the primary crime. Tex. Code Crim. Proc. Ann. art. 12.03(d) (West Supp. 1994). The limitation period for sexual assault under section 22.011(a)(2) of the Penal Code is ten years. Tex. Code Crim. Proc. Ann. art. 12.01(2)(D) (West Supp. 1994). Penal Code section 22.011(a)(2) defines the offense of sexual assault of a child. Tex. Penal Code Ann. § 22.011(a)(2) (West Supp. 1994). Penal Code section 22.021(a)(1)(B) is identical to section 22.011(a)(2) and, together with section 22.021(a)(2), defines the offense of aggravated sexual assault of a child. Applying article 12.03, the limitation period for aggravated sexual assault of a child is the same as the limitation period for sexual assault of a child: ten years. Point of error two is overruled. (2)
Appellant contends the jury could not rationally find beyond a reasonable doubt that the offense took place prior to the presentment of the indictment and within the limitation period because the date of presentment was not in evidence. This contention assumes that the quoted jury instruction conditioned appellant's conviction on a jury finding that the indictment was presented within the prescribed time period. Appellant cites no pertinent authority to support this assumption. We believe the instruction merely explained to the jury that the State was not bound to prove that the offense occurred on the precise date alleged in the indictment. Appellant did not contend at trial that the prosecution was barred by the statute of limitations. See State v. Yount, 853 S.W.2d 6, 8 (Tex. Crim. App. 1993) (limitation is a waivable defense). In the absence of any issue requiring the jury to determine when the indictment was presented, evidence of the date of presentment was not required.
The indictment, a copy of which appears in the transcript, was presented by the grand jury empaneled at the October 1991 term of the 147th District Court and bears a file mark dated October 31, 1991. From the testimony, a rational trier of fact could find beyond a reasonable doubt that the sexual assaults took place between December 1989 and April 1990. Because the record conclusively demonstrates that the crime for which appellant was convicted was committed before the indictment was presented and that the prosecution was not barred by limitation, point of error one is overruled.
The judgment of conviction is affirmed.
Before Justices Powers, Aboussie and Jones
Affirmed
Filed: June 1, 1994
Do Not Publish
1. In a second count, the indictment accused appellant of engaging in sexual contact with the child. Tex. Penal Code Ann. § 21.11 (West 1989). Having found appellant guilty of aggravated sexual assault, the jury, pursuant to the district court's charge, did not return a verdict on this count.
2. Appellant relies on the opinion in Gallegos v. State, 756 S.W.2d 45, 47 (Tex. App.--San Antonio 1988, pet. ref'd). The indictment in that case, however, was presented in March 1986, before the 1987 amendment of article 12.01 that extended the limitation period for sexual assault of a child to ten years. Compare Act of May 17, 1985, 69th Leg., R.S., ch. 330, § 1, 1985 Tex. Gen. Laws 1393 (Tex. Code Crim. Proc. Ann. art. 12.01, since amended) with Act of May 31, 1987, 70th Leg., R.S., ch. 716, § 1, 1987 Tex. Gen. Laws 2591 (Tex. Code Crim. Proc. Ann. art. 12.01, since amended).