NO. 07-01-0427-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL E
OCTOBER 1, 2002
______________________________
ABELINO REYES, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 232ND DISTRICT COURT OF HARRIS COUNTY;
NO. 858332; HONORABLE MARY LOU KEEL, JUDGE
_______________________________
Before QUINN and REAVIS, JJ., and BOYD, SJ.1
In this appeal, appellant Abelino Reyes challenges his conviction for the offense of
aggravated sexual assault of a child and the resulting jury-assessed punishment of 38
years confinement in the Institutional Division of the Department of Criminal Justice. In
1
John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by
assignment. Tex. Gov’t Code Ann. § 75.002(a)(1) (Vernon Supp. 2002).
doing so, he presents two issues for our decision, i.e., 1) the court’s admission of an
uncharged prior bad act at the punishment hearing, and 2) the trial court’s failure to give
appellant’s requested charge on a lesser-included offense. We affirm the judgment of the
trial court.
The complainant, AH, lived with her grandmother and appellant, who was her
grandmother’s boyfriend, from the age of seven until she was 13. She testified that when
she was eight years old, appellant began to touch her on her chest and genitals. She
reported this conduct to her grandmother, but her grandmother did not report it to the
police. AH averred that appellant stopped touching her for about three months, but then
the conduct resumed. She did not tell her grandmother again because she thought it
would upset her. Later, during the summer of 1998, when AH was 11, appellant
penetrated her with his penis. Later, in 1999, appellant assaulted her a second time. She
then decided she could not live any longer with appellant and intentionally made him angry
by moving a truck. This had the desired effect, and appellant told AH he did not want her
there (with him and her grandmother) any more. Her grandmother then took AH to AH’s
mother’s house, told her that she “couldn’t handle [AH],” and left her there.
After she had been with her mother for two weeks, AH told her about the abuse.
Her mother contacted the police, and they began an investigation that included a medical
examination and an interview at the Children’s Assessment Center. This prosecution is
the result of that investigation.
2
The gist of appellant’s first issue contention arises from the punishment phase
testimony of AH’s mother, Angelina. Over objection, Angelina testified that approximately
13 years earlier, when she was 16 and AH was two, they lived with Angelina’s mother and
appellant. On one occasion when her mother was away, appellant began “fondling” and
moving his hand up on her leg. Angelina said she told him to stop and pushed his hand
away. She also told her mother about the incident. On another occasion, Angelina
testified, she was helping her mother get boxes from a shelf when appellant, in view of her
mother, grabbed her breast. Her mother attempted to excuse appellant’s conduct by
saying he was intoxicated at the time. In response, the defense called a longtime friend
of Angelina, who averred that Angelina never told her of these occurrences.
Consistent with his trial objection, appellant argues Angelina’s testimony was
inadmissible because it did not comply with article 38.07 of the Code of Criminal
Procedure as it stood in 1988, the time of the alleged incident with Angelina. At that time,
article 38.07 provided that a conviction under chapter 21 of the Penal Code could be
supported upon the uncorroborated testimony of a victim under the age of 14 if, within six
months of the offense, the victim had informed any person other than the defendant. Tex
Code Crim. Proc. Ann. art. 38.07 (Vernon 1975) (repealed). Chapter 21 of the Penal Code
includes sexual assault and indecency with a child.
The current version of article 38.07 authorizes conviction on the uncorroborated
testimony of a victim under the age of 17 for the offenses of indecency with a child and
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aggravated sexual assault. Tex. Code Crim. Proc. Ann. art. 38.07 (Vernon Supp. 2002).
In support of his contention that the admission of Angelina’s testimony was reversible
error, appellant cites and relies on Carmell v. Texas, 529 U.S. 513, 120 S.Ct. 1620, 146
L.Ed.2d 577 (2000). However, that case is distinguishable.
In Carmell, the issue presented was whether the testimony of the child complainant
was inadmissible because of the lack of the timely outcry required under the version of the
statute in force at the time of the offense, or whether her testimony was admissible
because the statute in force at the time of trial did not require such an outcry. It was in that
context that the Carmell court held that the constitutional prohibition against ex post facto
laws required application of the version of article 38.07 that was in effect at the time of the
offense. However, the issue here is whether the testimony of a witness, not the defendant,
about prior uncharged bad conduct is admissible at the punishment phase. Appellant has
not cited, nor have we found, any authority that supports the position that article 38.07
governs the admission of evidence at punishment. See Williams v. Steele, 653 S.W.2d
517, 519 (Tex.App.--Beaumont 1983, no writ) (holding art. 38.07 is not applicable to
extraneous offenses otherwise properly admitted before the jury).
The admissibility of evidence at the punishment phase of trial is governed by article
37.07 of the Code of Criminal Procedure. In relevant part, that article provides:
Sec. 3(a)(1) . . . evidence may be offered by the state and the defendant as
to any matter the court deems relevant to sentencing, including but not
limited to the prior criminal record of the defendant, his general reputation,
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his character, an opinion regarding his character, the circumstances of the
offense for which he is being tried, and, notwithstanding Rules 404 and 405,
Texas Rules of Evidence, any other evidence of an extraneous crime or bad
act that is shown beyond a reasonable doubt by evidence to have been
committed by the defendant or for which he could be held criminally
responsible, regardless of whether he has previously been charged with or
finally convicted of the crime or act . . . .
Tex. Code Crim. Proc. Ann. art. 37.07 (Vernon Supp. 2002).
Moreover, even assuming arguendo, and only arguendo, that article 38.07 is
applicable during the punishment phase of a trial, admission of Angelina’s testimony did
not violate that statute. In both incidents she said that she made outcry to her mother.2
Article 38.07 does not require that the outcry witness actually testify. Additionally,
evidence about the first incident does not establish an offense under chapter 21 of the
2
Appellant, in his brief, repeatedly states there was no outcry. However, the record
is unequivocal otherwise. Angelina testified:
A: . . . I pushed him away and told him I was going to tell my mom.
* * *
Q: Did you tell your mom?
A: Yes, I did.
Her testimony concerning the second incident included this colloquy:
A: I was getting the box from the shelf and as I was lifting my hand, he
grabbed my breast in front of my mom and my mom saw.
* * *
Q: What did your mom do when she saw that?
A: My mom said he was drunk.
5
Code. The nearest offense defined under chapter 21 would be indecency with a child (§
21.011), which requires exposure or “sexual contact” defined as “touching of the anus,
breast, or any part of the genitals.” Section 21.01(2) (defining sexual contact). At most,
the testimony established misdemeanor assault as defined in section 22.01(a)(3) of the
Penal Code. Also, assuming that the testimony concerning the second incident was
sufficient to establish the offense of indecency with a child, its admission would not violate
article 38.07 because Angelina did make an outcry to her mother. Appellant’s first issue
is overruled.
In his second issue, appellant contends that the trial court reversibly erred in failing
to charge the jury on the lesser-included offense of indecency with a child. Parenthetically,
the State does not deny that indecency with a child can be a lesser-included offense of
aggravated sexual assault. See Ochoa v. State, 982 S.W.2d 904, 908 (Tex.Crim.App.
1998). In response, the State initially argues that appellant failed to preserve his
complaint because his requested instruction was not sufficiently specific. The requested
instruction was as follows:
Court: Any objections to the charge?
Defense: We would request the lesser included offense of indecency with
a child.
Court: Denied.
Defense: And one more lesser included would be a simple assault.
Court: Denied.
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Citing Reyes v. State, 910 S.W.2d 585, 592 (Tex.App.--Amarillo 1995, pet. ref’d),
and Jiminez v. State, 953 S.W.2d 293, 298 (Tex.App.--Austin 1997, pet. ref’d), the State
contends that to preserve error, appellant must have specified in his request which of the
alternative manners of committing the offense he wanted in the charge. We disagree.
In Reyes, the trial objection was to the submission of a parties charge, while the
objection on appeal was that the evidence was insufficient to support the theory charged.
910 S.W.2d at 593. Because the appeal challenge was different from that made at trial,
we held it was insufficient to preserve the question. Id. However, Jiminez is factually
similar in that it also involved a charge of aggravated sexual assault and a request for a
charge on the lesser-included offense of indecency with a child. 953 S.W.2d at 298.
Jiminez held the trial court reversibly erred in refusing the charge because the objection
with accompanying argument was sufficiently specific to clearly identify to the trial court
the basis of the objection, even though a special requested charge was not tendered. Id.
We do not agree with the State that these cases show the inadequacy of appellant’s
request to preserve error. Reyes is distinguishable because the alleged error was not
preserved for appellate review because of the variance between the trial objection and the
appellate contention. No such discrepancy exists here. Also, although the Jiminez court
mentioned the argument supporting the objection there, the failure to present a supporting
trial argument here does not prevent the request from being sufficiently specific to inform
the trial court of the asserted charge deficiency.
7
In criminal cases, requests and objections to the court’s charge are governed by
article 36.14 of the Code of Criminal Procedure (Vernon 1981), and its requirements are
exclusive.3 The statute requires that requests and objections to the court’s charge be in
writing, but that requirement is met by an objection or request dictated into the record. Id.
With regard to the necessary specificity of the request or objection, the Court of Criminal
Appeals has instructed “the objection must be specific and clear enough to apprize the trial
court of the nature of the objection.” Pennington v. State, 697 S.W.2d 387, 390 (Tex.Crim.
App. 1985). Appellant’s request was sufficient to meet this requirement.
The seminal case discussing the standard for determining when a charge on a
lesser-included offense must be given is Royster v. State, 622 S.W.2d 442 (Tex.Crim.App.
1991). On original submission, the court quoted from Sansone v. U.S., 380 U.S. 343, 85
S.Ct. 1004, 13 L.Ed.2d 882 (1965), the comment that “a lesser-included offense instruction
is only proper where the charged greater offense requires the jury to find a disputed factual
element which is not required for conviction of the lesser-included offense.” Royster, 622
S.W.2d at 444. On rehearing, the court reexamined the issue, and explicated a two-step
analysis to be used in determining when such an instruction was required. As explicated,
the analysis requires, first, the lesser-included offense must be included within the proof
necessary to establish the offense charged, and second, there must be some evidence
that if the defendant is guilty, he is only guilty of the lesser offense. Id. at 446. The
3
The statute expressly provides “compliance with the provisions of this Article is all
that is necessary to preserve for review the exceptions and objections presented to the
charge . . . .”
8
evidence must establish the lesser-included offense as a valid rational alternative to the
charged offense. Westbrook v. State, 29 S.W.3d 103, 113-14 (Tex.Crim.App. 2000), cert.
denied, 532 U.S. 944, 121 S.Ct. 1407, 149 L.Ed.2d 349 (2001). In Jiminez, the Austin
Court of Appeals noted, “an issue whether the defendant is guilty only of a lesser included
offense is raised if there is evidence that affirmatively rebuts or negates an element of the
greater offense, or if the evidence is subject to different interpretations, one of which
rebuts or negates the crucial element.” Jiminez, 953 S.W.2d at 299 (citing Schweinle v.
State, 915 S.W.2d 17, 19 (Tex.Crim.App. 1996)). See also Tex. Code Crim. Proc. 37.09
(Vernon 1981).
Supporting his proposition that a charge should have been given, appellant argues,
“the only distinguishing factor between the greater and lesser offense is the allegation of
penetration.” Our evaluation of this argument requires that we examine the indictment and
the elements of both offenses. Tracking the elements of section 22.021, the indictment
alleged appellant 1) intentionally and knowingly 2) caused the penetration of AH’s sexual
organ 3) by his sexual organ, and 4) she was younger than 14 years of age at the time.
As relevant here, the elements of indecency with a child are that the actor 1a) engages in
sexual contact, defined to include touching the genitals of another person, or 1b) with
intent to gratify sexual desires, exposes his genitals or causes the victim to expose his or
her genitals, and 2) the victim is younger than 17.
9
Under section 22.021, a person can also commit aggravated sexual assault by
causing their sexual organ to contact the sexual organ of another. Tex. Pen Code Ann.
§ 22.021(a)(B)(iii) (Vernon 1994). Had the State alleged both means of committing
aggravated sexual assault, a dispute on the issue of penetration would not implicate the
lesser-included offense of indecency with a child. However, here, the State’s decision to
allege on specific means of committing the greater offense limits it to obtaining a conviction
based on evidence of the conduct alleged. See Jacob v. State, 892 S.W.2d 905, 907
(Tex.Crim.App. 1995). Thus, under these facts, the element that distinguishes the offense
actually charged here from a lesser-included offense of indecency with a child is that of
penetration.
As the Jiminez court noted, to be entitled to a lesser offense charge, there must be
evidence that affirmatively rebuts or negates an element of the greater offense. To satisfy
that test, appellant points to the testimony of the State’s expert witnesses. Dr. Cliff Mishaw
said he performed an examination of AH and found no physical or psychological evidence
establishing or disproving sexual abuse. State’s witness Dr. Margaret McNeese, who had
not examined AH, gave her expert opinion on the occurrence or non-occurrence of
physical evidence of penetration. She described a study involving female children whose
penetration had been established by admission or direct eyewitness testimony. In that
study, 70 percent of the children did not exhibit physical evidence of penetration.
10
Appellant argues that the testimony of these two witnesses showed at least a 30
percent margin for error, which, he reasons, “raises a substantial question on the issue of
penetration.” We disagree with that characterization of the evidence and that conclusion.
The experts’ testimony does not show that physical examinations have a significant margin
of error, but rather that a “normal” examination, namely, one that does not show evidence
of penetration, is of limited probative value. Here, there was direct evidence by AH of
penetration. The experts’ testimony was to the effect that the absence of physical
evidence does not disprove penetration. Consequently, that evidence did not affirmatively
rebut or negate an element (penetration) of the greater offense. Jiminez, 953 S.W.2d at
299. That being true, appellant was not entitled to an instruction on the lesser-included
offense of indecency with a child. Appellant’s second issue is overruled.
In sum, both of appellant’s issues are overruled and the judgment of the trial court
is affirmed.
John T. Boyd
Senior Justice
Do not publish.
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