i i i i i i
MEMORANDUM OPINION
No. 04-08-00588-CR
Rodolfo RUIZ,
Appellant
v.
The STATE of Texas,
Appellee
From the 226th Judicial District Court, Bexar County, Texas
Trial Court No. 2008-CR-4280
Honorable Sid L. Harle, Judge Presiding
Opinion by: Phylis J. Speedlin, Justice
Sitting: Karen Angelini, Justice
Sandee Bryan Marion, Justice
Phylis J. Speedlin, Justice
Delivered and Filed: August 5, 2009
AFFIRMED
Rodolfo Ruiz was convicted by a jury of three counts of indecency with a child, two counts
of sexual performance of a child, and two counts of aggravated sexual assault of a child. Ruiz
asserts twenty-eight points of error in his brief raising challenges regarding: (1) the jury charge; (2)
the sufficiency of the evidence; (3) the admissibility of evidence; and (4) cumulative error. We
overrule Ruiz’s points of error and affirm the trial court’s judgment.
04-08-00588-CR
JURY CHARGE
In his twenty-third point of error, Ruiz contends the jury charge violated his due process right
to a fair trial “by preventing the jury from understanding what precise charges they were weighing
which resulted in an impossible task to clarify the verdicts with the jury charge requiring a full
acquittal on all charges in the indictment.” The crux of Ruiz’s complaint is that where the jury
charge refers to the indictment counts, the jury charge misidentifies the count to which the particular
offense relates, with the exception of the first three counts. For example, the offense of indecency
with a child by sexual contact involving Ruiz’s touching of the complainant’s genitals on or about
October 31, 2005 is charged in Count V of the indictment; however, the paragraph of the jury charge
relating to this offense refers to Count IV of the indictment. Thus, the jury’s verdict finding Ruiz
guilty of Count IV of the indictment actually relates to the offense charged in Count V of the
indictment.1
1
… Count V of the indictment stated:
on or about the 31st day of October, 2005, RODOLFO RUIZ, hereinafter referred to as defendant, did
intentionally and knowingly engage in sexual contact with [A.F.], A FEMALE CHILD YOUNGER
THAN SEVENTEEN (17) YEARS AND NOT THE SPOUSE OF THE DEFENDANT, by touching
PART OF THE GENITALS of [A.F.], with the intent to arouse or gratify the sexual desire of any
person;
Paragraph XVII of the jury charge provided:
Now, if you find from the evidence beyond a reasonable doubt that on or about the 31st day of
October, 2005, in Bexar County, Texas, the defendant, Rodolfo Ruiz, did intentionally and knowingly
engage in sexual contact with [A.F.], a female child younger than seventeen (17) years and not the
spouse of Rodolfo Ruiz, by touching part of the genitals of [A.F.], with the intent to gratify the sexual
desire of any person, then you will find the defendant guilty of indecency with a child by sexual
contact as charged in Count IV of the indictment.
If you do not so believe, or if you have a reasonable doubt thereof, you will find the
defendant not guilty in Count IV of the indictment.
The jury’s verdict form stated:
W e, the Jury, find the defendant, Rodolfo Ruiz, guilty of indecency with a child as charged in Count IV of the
indictment.
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The State responds that the misnumbering of the indictment counts in the jury charge likely
resulted from a directed verdict being granted on Counts IV, IX, and XIII. The State speculates that
the trial court, in essence, renumbered the indictment counts after omitting Counts IV, IX, and XIII.
The only case cited in Ruiz’s brief with regard to this point of error is In re Hernandez, No.
04-03-00151-CV, 2003 WL 1733673 (Tex. App.—San Antonio Apr. 2, 2003, orig. proceeding). In
that opinion, the court was discussing the law applicable in a civil case when one jury answer
directly conflicts with another jury answer so that the jury’s answers contain an irreconcilable
conflict. See id. at *1. In the instant case, the jury’s answers did not conflict with each other.
Instead, the jury charge’s references to the indictment counts conflict with the numbering of the
counts in the indictment.2 Because the jury’s answers in this case did not contain an irreconcilable
conflict, Hernandez is readily distinguishable.
Ruiz argues that the jury “must have been extremely confused.” There is no indication in the
record, however, that the jury had access to the indictment and attempted to match the counts
referenced in the jury charge with the counts in the indictment. In the absence of evidence to the
contrary, we must assume the jury focused on the elements of the offenses that were properly
contained in the charge.
In his appellant’s brief, Ruiz does not cite Almanza v. State, 686 S.W.2d 157 (Tex. Crim.
App. 1985) (op. on reh’g), or make any effort to argue the charge contained reversible error under
the Almanza standard. The State cites opinions from two of our sister courts, however, that have
concluded that a similar misnumbering of the indictment counts in a jury charge did not surprise,
2
… W e note, however, that the indictment authorized each of the offenses for which Ruiz was convicted.
See
Martinez v. State, 225 S.W.3d 550, 554 (Tex. Crim. App. 2007) (noting due process problem arises when more
convictions are permitted than are authorized by indictment).
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prejudice, or harm the appellant. See Saldaña v. State, - - - S.W. 3d - - -, No. 13-06-180-CR, 2008
WL 451836, at *17-18 (Tex. App.—Corpus Christi Feb. 21, 2008, pet. ref’d); Robinson v. State, 658
S.W.2d 779, 783-84 (Tex. App.—Beaumont 1983, no pet.). A court of appeals is not permitted to
reframe an appellant’s complaint and reverse the trial court on a theory not raised at trial or on
appeal. State v. Bailey, 201 S.W.3d 739, 743-44 (Tex. Crim. App. 2006). Accordingly, we do not
address whether the jury charge contained error that would give rise to the level of harm necessary
for a reversal.
Ruiz’s twenty-third point of error is overruled.
SUFFICIENCY
In points of error one through three, Ruiz challenges the legal sufficiency of the evidence to
support his convictions for aggravated sexual assault. In order for evidence to be legally sufficient,
it must “convince a trier of fact beyond a reasonable doubt of the existence of every element of the
offense.” Jackson v. Virginia, 443 U.S. 307, 316 (1979). We review the legal sufficiency of the
evidence in the light most favorable to the verdict and determine whether any rational trier of fact
could have found the essential elements of the offense beyond a reasonable doubt. Vodochodsky v.
State, 158 S.W.3d 502, 509 (Tex. Crim. App. 2005). As the exclusive judge of the credibility of
witnesses, the jury may choose to believe all, some, or none of the testimony or evidence presented.
Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996).
In his first point of error, Ruiz challenges the legal sufficiency of the evidence to support his
conviction of aggravated sexual assault under Count I of the indictment. Count I of the indictment
charged Ruiz with intentionally and knowingly causing his male sexual organ to penetrate the female
sexual organ of A.F., the complainant, on or about the 31st day of October, 2005. The State was
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required to prove that Ruiz intentionally and knowingly caused the penetration of the sexual organ
of a child by any means and that the victim was younger than fourteen years of age. TEX . PEN . CODE
ANN . § 22.021(a)(1)(B)(i),(a)(2)(B) (Vernon Supp. 2008).
At trial, A.F. testified that Ruiz sexually assaulted her in the weeks following her thirteenth
birthday at the apartment where A.F. lived. After A.F. described the first time Ruiz had sexual
intercourse with her, she testified that Ruiz had sexual intercourse with her certainly five times, and
possibly more than ten times, at the apartment. These incidents occurred while A.F.’s sister was
either gone from the apartment or in the shower. Ruiz was A.F.’s sister’s boyfriend, and both Ruiz
and A.F. lived with A.F.’s sister at the time.
Annette Santos, the sexual assault nurse examiner who examined A.F., testified at trial that
A.F. told Santos that Ruiz raped her. Santos provided details from her interview of A.F. that closely
matched A.F.’s testimony at trial.
During cross-examination, Ruiz attempted to show inconsistencies between Santos’ interview
report and A.F.’s trial testimony with regard to whether Ruiz or his brother first had sexual
intercourse with A.F. Ruiz’s interpretation of the report, however, was disputed by A.F. and Santos
at trial. Moreover, although Ruiz attempted to discredit A.F.’s testimony during cross-examination
and by presenting additional evidence, the jurors, as the exclusive judge of the credibility of
witnesses, chose to believe A.F. See Jones, 944 S.W.2d at 647.
In his brief, Ruiz asserts that no forensic evidence supported A.F.’s testimony. The State,
however, is not required to produce forensic evidence to secure a conviction for aggravated sexual
assault, and the child victim’s uncorroborated testimony may suffice. TEX . CODE CRIM . PROC. ANN .
art. 38.07(a) & (b) (Vernon 2005).
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04-08-00588-CR
Ruiz also makes reference in his brief to the date of the offense. The State, however, is not
required to prove a specific date for the offense since “it is well settled that the ‘on or about’
language of an indictment allows the State to prove a date other than the one alleged in the
indictment as long as the date is anterior to the presentment of the indictment and within the statutory
limitation period.” Sledge v. State, 953 S.W.2d 253, 256 (Tex. Crim. App. 1997). A.F. testified that
the abuse began shortly after her thirteenth birthday. Because this date is anterior to the presentment
of the indictment and within the statutory limitation period, the evidence is legally sufficient to prove
the date element of the offense. The evidence is legally sufficient to support the jury’s finding that
Ruiz was guilty of the offense charged in Count I of the indictment.
In his second point of error, Ruiz challenges the legal sufficiency of the evidence to support
his conviction of aggravated sexual assault under Count II of the indictment. Count II of the
indictment charged Ruiz with intentionally and knowingly causing his male sexual organ to contact
the female sexual organ of A.F. on or about October 31st, 2005. In his brief, Ruiz complains that
Count II is a “mirror image” of Count I. Count I of the indictment, however, alleges “penetration,”
whereas Count II of the indictment alleges “contact.” From a sufficiency standpoint, “penetration
of the genitals necessarily includes contact.” Vick v. State, 991 S.W.2d 830, 834 n.2. (Tex. Crim.
App. 1999). Accordingly, the evidence is legally sufficient to support Ruiz’s conviction of the
offense charged in Count II of the indictment.3
In his third point of error, Ruiz challenges the legal sufficiency of the evidence to support his
conviction of aggravated sexual assault under Count III of the indictment. Count III of the
3
… W e note that Ruiz did not raise a double jeopardy challenge to his conviction under Count II. See Vick,
991 S.W .2d at 834 n.2.
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indictment charged Ruiz with intentionally and knowingly causing his male sexual organ to contact
and penetrate the mouth of A.F. on or about October 31st, 2005.
Ruiz asserts A.F. “was extremely vague as [to] when this activity took place and only
indicated it was AFTER her birthday.” Ruiz notes that the jury acquitted him of Count VIII of the
indictment which charged him with the same offense that was alleged to have occurred on or about
the 28th day of February, 2006. As previously stated, however,“the ‘on or about’ language of an
indictment allows the State to prove a date other than the one alleged in the indictment as long as
the date is anterior to the presentment of the indictment and within the statutory limitation period.”
Sledge, 953 S.W.2d at 256. In this case, A.F. testified that Ruiz put his penis in her mouth multiple
times after her thirteenth birthday. This testimony is legally sufficient to support Ruiz’s conviction
of the offense charged in Count III of the indictment. As a reviewing court, we will not speculate
regarding the reason the jury acquitted Ruiz of Count VIII.
In points of error 4 through 22, 26, and 27, Ruiz raises legal and factual sufficiency
challenges based on the jury charge’s misidentification of the indictment counts. The legal and
factual sufficiency of the evidence, however, is measured by the elements of the offense as defined
by the hypothetically correct jury charge for the case. See Wooley v. State, 273 S.W.3d 260, 268
(Tex. Crim. App. 2008); Malik v. State, 953 S.W.2d 234, 239-40 (Tex. Crim. App. 1997). A
hypothetically correct jury charge would not have misnumbered the indictment counts.
Based on the foregoing, all of Ruiz’s points of error challenging the sufficiency of the
evidence are overruled.
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REPORT OF SEXUAL ASSAULT NURSE EXAMINER
In his twenty-fourth point of error, Ruiz contends the trial court erred in admitting into
evidence the report prepared by the sexual assault nurse examiner. Ruiz did not, however, object
to the admission of the evidence. Instead, when the State tendered the report into evidence, defense
counsel stated, “No objection.” By failing to present this complaint to the trial court and obtain a
ruling thereon, Ruiz failed to preserve this issue for our review. TEX . R. APP . P. 33.1(a).
PHOTOGRAPH OF COMPLAINANT
In his twenty-fifth point of error, Ruiz argues the trial court abused its discretion by admitting
a photograph of A.F., taken when she was twelve years old. The photograph was introduced during
the guilt/innocence phase of the trial. Ruiz asserts the defense stipulated to A.F.’s age at the time
of the alleged crimes, and therefore the photo was gratuitous. He also argues the photograph portrays
A.F. in a false light, as it shows her at only twelve years old, rather than thirteen. Moreover, Ruiz
argues the photograph of A.F. as a younger child was introduced only to inflame the jury’s emotions,
resulting in an unfair trial. We disagree.
When determining whether the trial court erred in admitting relevant photographs into
evidence, our review is limited to determining whether the probative value of the photos is
substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the
jury, undue delay, or needless presentation of cumulative evidence. TEX . R. EVID . 403; Young v.
State, 283 S.W.3d 854, 874 (Tex. Crim. App. 2009). The admissibility of a photograph is within the
sound discretion of the trial judge. Young, 283 S.W.3d at 875 (citing Paredes v. State, 129 S.W.3d
530, 539 (Tex. Crim. App. 2004); Williams v. State, 958 S.W.2d 186, 195 (Tex. Crim. App. 1997)).
The trial court’s decision is reviewed under an abuse of discretion standard, and may be disturbed
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on appeal only when it falls outside the zone of reasonable disagreement. Young, 283 S.W.3d at 874.
A photograph is generally admissible if verbal testimony about the matters depicted in the
photograph is also admissible. Id. at 875.
In this case, the trial court did not abuse its discretion by admitting the photograph of A.F.
A.F. was fifteen at the time of trial. The photograph was introduced to give the jury a more accurate
impression of A.F. at the time the abuse began. While the defense did stipulate to A.F.’s age at the
time of the offenses, and A.F.’s testimony established she was twelve rather than thirteen in the
photograph, the danger of unfair prejudice due to the age difference is slight. Likewise, the snapshot
of A.F. as a younger child was not so inflammatory that the danger of prejudice outweighed its
probative value. Consequently, Ruiz’s twenty-fifth point of error is overruled.
CUMULATIVE ERROR
In his twenty-eighth point of error, Ruiz asserts that the cumulative impact of all of the errors
alleged in his brief was so great that reversal is required. Because we have overruled all of Ruiz’s
other points of error, there is no cumulative error requiring reversal. Accordingly, Ruiz’s twenty-
eighth point of error is overruled.
CONCLUSION
The trial court’s judgment is affirmed.
Phylis J. Speedlin, Justice
DO NOT PUBLISH
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