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NUMBER 13-04-369-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
JOSE SAUCEDA, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 148th District Court
of Nueces County, Texas.
MEMORANDUM OPINION[1]
Before Justices Yañez, Castillo, and Garza
Memorandum Opinion by Justice Castillo
A jury convicted Jose Sauceda of two counts of indecency with a child[2] and one count of aggravated sexual assault of a child.[3] The trial court assessed punishment at twenty years' confinement in the Institutional Division of the Texas Department of Criminal Justice for the indecency-with-a-child counts and twenty-five years for the aggravated sexual assault of a child count, the sentences to run concurrently. By one issue, Sauceda challenges the legal and factual sufficiency of the evidence to support the conviction. We affirm.
I. BACKGROUND
A. The Indictment
The State indicted Sauceda on three counts involving sexual contact with a child. Count 1 alleged that, on or about June 15, 1995, Sauceda touched R.T.'s genitals. Count 2 alleged that, on or about June 16, 1995, Sauceda caused R.T. to touch his genitals. Count 3 alleged that, on or about June 15, 1995, Sauceda penetrated R.T.'s sexual organ with his finger. The jury convicted Sauceda of all three counts. Sauceda asserts that the victim's testimony lacks credibility and constituted conflicting evidence.
B. The Relevant Evidence
Sauceda moved in with the family when the victim, R.T., was in elementary school. Twenty years old at the time of trial, R.T. testified that Sauceda molested her when she was about eleven years old and the conduct lasted approximately a year, occurring almost daily. Allegations of sexual contact arose after R.T. told a middle school counselor that Sauceda had molested her. From the counselor, the jury heard that R.T. outcried because she was having nightmares and her grades were suffering. The same day, R.T. told her aunt. R.T.'s aunt confirmed the outcry and asked R.T. to tell her mother about sexual contact by Sauceda. By then, Sauceda was in prison after his community supervision on a delivery of a controlled substance charge was revoked. From R.T., the jury heard about multiple incidents of sexual contact and conduct by Sauceda.[4] Sauceda testified on his own behalf. He admitted that he was alone with R.T. and her sister (who is deaf and without speech) almost daily while R.T.'s mother was at work. He denied molesting R.T.
II. SUFFICIENCY OF THE EVIDENCE
A. Legal Sufficiency
A legal‑sufficiency challenge requires us to review the relevant evidence in the light most favorable to the verdict, and then to determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Escamilla v. State, 143 S.W.3d 814, 817 (Tex. Crim. App. 2004) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)); see also Swearingen v. State, 101 S.W.3d 89, 95 (Tex. Crim. App. 2003) (en banc); Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000) (en banc). This standard is designed to give "full play to the [jury's] responsibility fairly" to "draw reasonable inferences from basic facts to ultimate facts." Sanders v. State, 119 S.W.3d 818, 820 (Tex. Crim. App. 2003). We consider all the evidence that sustains the conviction, whether properly or improperly admitted. Conner v. State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001) (citing Garcia v. State, 919 S.W.2d 370, 378 (Tex. Crim. App. 1994) (en banc)). Similarly, we consider all the evidence that sustains the conviction, whether submitted by the prosecution or the defense, in determining the legal sufficiency of the evidence. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000) (en banc); Cook v. State, 858 S.W.2d 467, 470 (Tex. Crim. App. 1993) (en banc). In this review, we are not to reevaluate the weight and credibility of the evidence; rather, we act only to ensure that the jury reached a rational decision. Muniz v. State, 851 S.W.2d 238, 246 (Tex. Crim. App. 1993) (en banc).
The legal sufficiency of the evidence is measured against the elements of the offense as defined by a hypothetically correct jury charge for the case. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). This standard of legal sufficiency ensures that a judgment of acquittal is reserved for those situations in which there is an actual failure in the State's proof of the crime, rather than a mere error in the jury charge submitted. Id. We then determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson, 443 U.S. at 319; Johnson, 23 S.W.3d at 7.
If we reverse a criminal case for legal insufficiency, we reform the judgment of conviction to reflect conviction for a lesser offense only if a jury charge on the lesser offense was either submitted or requested, but denied. Collier v. State, 999 S.W.2d 779, 782 (Tex. Crim. App. 1999) (en banc). Otherwise, we vacate the judgment of conviction for legal insufficiency and order a judgment of acquittal. Swearingen, 101 S.W.3d at 95.
B. Factual Sufficiency
We are constitutionally empowered to review the judgment of the trial court to determine the factual sufficiency of the evidence used to establish the elements of the offense with which Sauceda was charged. See Johnson, 23 S.W.3d at 6. The Texas Court of Criminal Appeals has restated the factual sufficiency standard of review:
There is only one question to be answered in a factual sufficiency review: Considering all of the evidence in a neutral light, was a jury rationally justified in finding guilt beyond a reasonable doubt? However, there are two ways in which the evidence may be insufficient. First, when considered by itself, evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt. Second, there may be both evidence supporting the verdict and evidence contrary to the verdict. Weighing all the evidence under this balancing scale, the contrary evidence may be strong enough that the beyond‑a‑reasonable‑doubt standard could not have been met, so the guilty verdict should not stand. This standard acknowledges that evidence of guilt can 'preponderate' in favor of conviction but still be insufficient to prove the elements of the crime beyond a reasonable doubt. Stated another way, evidence supporting guilt can 'outweigh' the contrary proof and still be factually insufficient under a beyond‑a‑reasonable‑doubt standard.
Zuniga v. State, 144 S.W.3d 477, 484‑85 (Tex. Crim. App. 2004). A clearly wrong and unjust verdict occurs where the jury's finding is "manifestly unjust," "shocks the conscience," or "clearly demonstrates bias." Prible v. State, No. AP‑74,487, 2005 Tex. Crim. App. LEXIS 110, at *16‑*17 (Tex. Crim. App. January 26, 2005) (designated for publication).
When the State bears the burden of proof, the proof of guilt is factually insufficient if it is so obviously weak as to indicate that a manifest injustice has occurred or if it is greatly outweighed by contrary proof. Zuliani v. State, 97 S.W.3d 589, 593‑94 (Tex. Crim. App. 2003). In determining the factual sufficiency of the elements of the offense, we view all the evidence neutrally, not through the prism of "the light most favorable to the prosecution." Johnson, 23 S.W.3d at 6‑7 (citing Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996)). However, we approach a factual‑sufficiency review with appropriate deference to avoid substituting our judgment for that of the fact finder. Id. Our evaluation should not intrude substantially on the fact finder's role as the sole judge of the weight and credibility given to witness testimony. Id. We must consider the most important evidence that the appellant claims undermines the jury's verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).
Every fact need not point directly and independently to the accused's guilt. Vanderbilt v. State, 629 S.W.2d 709, 716 (Tex. Crim. App. 1981). A conclusion of guilt can rest on the combined and cumulative force of all the incriminating circumstances. Id. We reverse a judgment of conviction only if proof of guilt is so obviously weak and manifestly unjust or the contrary evidence is so strong that the standard of proof beyond a reasonable doubt could not have been met. Prible, 2005 Tex. Crim. App. LEXIS 110, at *16‑*17.
In conducting a factual sufficiency review, we review all the evidence. Cain v. State, 958 S.W.2d 404, 408 (Tex. Crim. App. 1997). In the opinion, we "show our work" when we consider and address the appellant's main argument for urging insufficiency of the evidence. See Tex. R. App. P. 47.1; Sims, 99 S.W.3d at 603 ("A proper factual sufficiency review must include a discussion of the most important and relevant evidence that supports the appellant's complaint on appeal."). This practice benefits the parties, maintains the integrity of the justice system, and improves appellate practice. Id.
If we reverse a criminal case for factual insufficiency, we vacate the judgment of conviction. Clewis, 922 S.W.2d at 133‑34. We remand for a new trial a criminal case reversed for factual insufficiency so a second jury may have the chance to evaluate the evidence. Swearingen, 101 S.W.3d at 97.
C. Testimony of a Child in Sexual Conduct Cases
The testimony of a child sexual abuse victim alone is sufficient to support a conviction for aggravated sexual assault. Tex. Code Crim. Proc. Ann. art. 38.07 (Vernon 2005); see Garcia v. State, 563 S.W.2d 925, 928 (Tex. Crim. App. 1978). Courts give wide latitude to testimony given by child victims of sexual abuse. See Villalon v. State, 791 S.W.2d 130, 134 (Tex. Crim. App. 1990) (en banc). The victim's description of what happened to her need not be precise, and she is not expected to express herself at the same level of sophistication as an adult. See id. There is no requirement that the victim's testimony be corroborated by medical or physical evidence. Garcia, 563 S.W.2d at 928; Kemple v. State, 725 S.W.2d 483, 485 (Tex. App.BCorpus Christi 1987, no writ).
D. Hypothetically Correct Jury Charge
A hypothetically correct charge is one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or restrict its theories of liability, and adequately describes the particular offense. Malik, 953 S.W.2d at 240; Cano v. State, 3 S.W.3d 99, 105 (Tex. App.BCorpus Christi 1999, pet. ref'd). A hypothetically correct jury charge does not simply quote from the controlling statute. Gollihar v. State, 46 S.W.3d 243, 254 (Tex. Crim. App. 2001). Its scope is limited by the statutory elements of the offense as modified by the charging instrument. See Curry v. State, 30 S.W.3d 394, 404 (Tex. Crim. App. 2000). Malik flatly rejects use of the jury charge actually given as a means of measuring sufficiency of the evidence. See Gollihar, 46 S.W.3d at 252. Malik controls sufficiency of the evidence analysis even in the absence of alleged jury charge error. Id. at 255.
E. The Law Applicable to the Indecency‑with‑a‑Child Counts
1. Counts 1 and 2
The statutory period of limitation for indecency with a child is ten years from the child's eighteenth birthday. Tex. Code Crim. Proc. Ann. art. 12.01(5)(A) (Vernon 2005). The indictment alleged various sexual offenses against R.T. Count 1 alleged indecency on or about June 15, 1995 by touching her genitals. Count 2 alleged indecency on or about June 16, 1995 by causing R.T. to touch Sauceda's genitals. See Act of May 29, 1993, 73rd Leg., R.S., ch. 900, ' 1.01, sec. 21.11, 1993 Tex. Gen. Laws 3586, 3616 (amended 2001).
2. "On or About" Allegation of Date of Offense
Unless the date is a material element of an offense, it is not necessary for an indictment to specify the precise date on which the charged offense occurred. See Garcia v. State, 981 S.W.2d 683, 685‑86 (Tex. Crim. App. 1998) (en banc). The primary purpose of specifying a date in the indictment is not to notify the accused of the date of the offense. Id. at 686. Rather, the purpose of providing a date is to show that the prosecution is not barred by the statute of limitation. Id. When an indictment alleges that a crime occurred "on or about" a certain date, the State may prove an offense "with a date other than the one specifically alleged so long as the date is anterior to the presentment of the indictment and within the statutory limitation period and the offense relied upon otherwise meets the description of the offense contained in the indictment." Yzaguirre v. State, 957 S.W.2d 38, 39 (Tex. Crim. App. 1997) (en banc) (quoting Sledge v. State, 953 S.W.2d 253, 256‑57 (Tex. Crim. App. 1997) (en banc)). Accordingly, the hypothetically correct jury charge in this case would instruct the jury that the State could prove that the charged offenses were committed before, on, or after the dates alleged in the indictment so long as the dates were before the date of the indictment and within the applicable limitation period. Mireles v. State, 901 S.W.2d 458, 459 (Tex. Crim. App. 1995) (en banc); DeMoss v. State, 12 S.W.3d 553, 560 (Tex. App.BSan Antonio 1999, pet. ref'd).[5]
3. The Elements of Indecency with a Child as Limited by the Indictment
Thus, the hypothetically correct jury charge against which we measure legal sufficiency in Count 1 of the indictment in this case would ask the jury if Sauceda (1) on or about June 15, 1995, (2) intentionally or knowingly (3) engaged in sexual contact (4) with R.T., who was then a child under 17 years old and not his spouse, (5) by touching her genitals. For Count 2, the hypothetically correct jury charge would contain the same elements except it would ask whether Sauceda caused R.T. to touch his genitals, alleged to have occurred on or about June 16, 1995. We turn to the relevant definitions.
4. Definitions Used in the Indecency‑with‑a‑Child Statute
The penal code defines "sexual contact" as "any touching of the anus, breast, or any part of the genitals of another person with intent to arouse or gratify the sexual desire of any person." Tex. Pen. Code Ann. ' 43.01 (Vernon 2003). The offense of indecency with a child requires proof of the accused's intent to engage in the proscribed contact rather than an intent to bring about any particular result. Rodriguez v. State, 24 S.W.3d 499, 502 (Tex. App.BCorpus Christi 2000, pet. ref'd). Thus, the definitions in the hypothetically correct jury charge in this case concerning the applicable culpable mental state for the indecency‑with‑a‑child counts would be limited to the nature of the conduct rather than the result of conduct or circumstances surrounding the conduct.
A person acts intentionally, or with intent, with respect to the nature of the conduct or a result of the conduct when it is the person's conscious objective or desire to engage in the conduct or cause the result. Tex. Pen. Code Ann. ' 6.03(a) (Vernon 2003). Similarly, a person acts knowingly, or with knowledge, with respect to the nature of conduct or to circumstances surrounding the conduct when the person is aware of the nature of the conduct or that the circumstances exist. Tex. Pen. Code Ann. ' 6.03(b) (Vernon 2003). A fact finder may infer the accused's mental state from the acts, words, and conduct of the accused and from the circumstances surrounding the acts in which the accused engaged. See Hernandez v. State, 819 S.W.2d 806, 810 (Tex. Crim. App. 1991) (en banc); Dillon v. State, 574 S.W.2d 92, 94 (Tex. Crim. App. [Panel Op.] 1978). An accused rarely facilitates conviction by admitting to the requisite intent or knowledge, and it is seldom possible to prove by direct evidence what an accused intended or knew at the time of the incident. Thus, the fact finder usually must infer intent and knowledge from circumstantial evidence rather than direct proof. See Gardner v. State, 736 S.W.2d 179, 182 (Tex. App.BDallas 1987), aff'd, 780 S.W.2d 259 (Tex. Crim. App. 1989); see also Hernandez, 819 S.W.2d at 810; Dillon, 574 S.W.2d at 94‑95.
Specifically, the fact finder can infer the requisite intent to arouse or gratify the sexual desire of a person from conduct, remarks, or all the surrounding circumstances. Robertson v. State, 871 S.W.2d 701, 705 (Tex. Crim. App. 1993); McKenzie v. State, 617 S.W.2d 211, 216 (Tex. Crim. App. 1981). The intent to arouse or gratify may be inferred from conduct alone. McKenzie, 617 S.W.2d at 216. No oral expression of intent is necessary. Id.; Gregory v. State, 56 S.W.3d 164, 171 (Tex. App.BHouston [14th Dist.] 2001, pet. granted). Nor is visible evidence of sexual arousal required. McKenzie, 617 S.W.2d at 216; Gregory, 56 S.W.3d at 171. Further, the fact finder may draw an inference of guilt from the accused's acts, words, and conduct before, during, and after the incident.
F. The Law Applicable to the Aggravated‑Sexual‑Assault‑of‑a‑Child
1. Count 3
The statutory period of limitation for aggravated sexual assault of a child is ten years from the child's eighteenth birthday. Tex. Code Crim. Proc. Ann. art. 12.01(5)(B) (Vernon 2005). Count 3 of the indictment alleged that Sauceda intentionally and knowingly caused digital penetration of R.T.'s sexual organ on or about June 15, 1995.
2. The Elements of Aggravated Sexual Assault of a Child
Thus, the hypothetically correct jury charge against which we measure legal sufficiency in Count 3 of the indictment would ask the jury if Sauceda (1) on or about June 15, 1995, (2) intentionally or knowingly, (3) caused penetration of the sexual organ, (4) of R.T., who was then a child under 14 years old and not married to him, (5) by any means. See Act of May 26, 1999, 76th Leg., R.S., ch. 417, ' 2, 1999 Tex. Gen. Laws 2752, 2752-53 (amended 2001).
3. Definitions Used in the Aggravated‑Sexual‑Assault‑of‑a‑Child Statute
The Texas Court of Criminal Appeals has not addressed whether aggravated sexual assault of a child is a nature‑of‑conduct, result‑of‑conduct, or combined offense. See Baker v. State, 94 S.W.3d 684, 691 (Tex. App.BEastland 2002, no pet.); Duhart v. State, 890 S.W.2d 187, 191 (Tex. App.BCorpus Christi 1994, no pet.); Murray v. State, 804 S.W.2d 279, 281 (Tex. App.BFort Worth 1991, pet. ref'd). Where an offense is not clearly categorized with respect to the conduct elements, the trial court may submit to the jury the full statutory definitions of "intentionally" and "knowingly" because both definitions allow the jury to consider the nature of the accused's conduct or the results of the conduct. Baker, 94 S.W.3d at 691 (citing Murray, 804 S.W.2d at 281).
E. The Law Applicable to the Sexual‑Assault‑of‑a ‑Child
1. Count 3
The statutory period of limitation for sexual assault of a child is also ten years from the child's eighteenth birthday. Tex. Code Crim. Proc. Ann. art. 12.01(5)(B) (Vernon 2005). Count 3 alleged that Sauceda intentionally and knowingly sexually assaulted R.T. by digital penetration on or about June 15, 1995.
2. The Elements of Sexual Assault of a Child
Thus, the hypothetically correct jury charge against which we measure legal sufficiency in Counts 9, 11, and 13 of the indictment would ask the jury if Sauceda (1) on or about June 15, 1995 (2) intentionally or knowingly (3) caused penetration of the sexual organ (4) of R.T., (5) who was then a child under 14 years old and not his spouse, (6) by any means. See Act of May 26, 1999, 76th Leg., R.S., ch. 417, ' 2, 1999 Tex. Gen. Laws 2752, 2752-53 (amended 2001).
3. Definitions Used in the Sexual‑Assault‑of‑a‑Child Statute
Three "conduct elements" can be involved in an offense: (1) nature of the conduct, (2) result of the conduct, and (3) circumstances surrounding the conduct. McQueen v. State, 781 S.W.2d 600, 603 (Tex. Crim. App. 1989) (en banc). A particular offense may contain one or more of these conduct elements. Id. Whether sexual assault of a child is a nature‑of‑conduct, result‑of‑conduct, or combined offense is unsettled. We conclude that until the Texas Court of Criminal Appeals classifies sexual assault as a result‑oriented crime, a nature‑of‑the‑conduct offense, or a combination, "it is not error for the trial court to submit the statutory definitions of 'intentionally' and 'knowingly' because both definitions allow the jury to consider the nature of [an] offender's conduct or the results of his conduct." Saldivar v. State, 783 S.W.2d 265, 267 (Tex. App.BCorpus Christi 1989, no pet.); see also Cook, 884 S.W.2d at 492‑94.
1. Elements Common to the Charged Offenses
As an initial matter, we conclude that, viewed under the legal and factual sufficiency standards, the evidence conclusively established that (1) R.T. was under the age of seventeen years and not married to Sauceda, and (2) the offenses occurred in Nueces County, Texas. The offenses proved by the State conformed with the allegations in the indictment, were within the statutes of limitation, and occurred before the date of the indictment. See Yzaguirre, 957 S.W.2d at 39. The State was not required to prove that any particular offense occurred on any particular date. See Mireles, 901 S.W.2d at 459. Viewing the evidence under the appropriate legal and factual sufficiency standards, we conclude that any rational trier of fact could have found beyond a reasonable doubt that Sauceda committed the offenses charged in the indictment on dates prior to the date of the indictment and within the limitation period. See Jackson, 443 U.S. at 319; Johnson, 23 S.W.3d at 7; Zuniga, 144 S.W.3d at 484‑85.
2. Discussion
Counts 1 and 2 charged Sauceda with indecency with a child against R.T. Count 3 charged him with aggravated sexual assault of a child. The evidence shows that, after he moved in with the family, Sauceda began molesting R.T. She was about eleven years old at the time. He continued almost daily for about a year. The abuse began with Sauceda's touching R.T.'s sexual organ and escalated to digital penetration. Evidence also showed that Sauceda forced R.T. to kiss his genital organ on numerous occasions. Sauceda denied sexual contact and conduct.
3. Disposition
The jury was free to resolve conflicts in testimony. See Mosley v. State, 983 S.W.2d 249, 254 (Tex. Crim. App. 1998) (en banc) (holding that questions concerning the credibility of witnesses and the weight to be given their testimony are to be resolved by the trier of fact); see also Esquivel v. State, 506 S.W.2d 613, 615 (Tex. Crim. App. 1974). Evidence is not rendered insufficient when conflicting evidence is introduced. Matchett v. State, 941 S.W.2d 922, 936 (Tex. Crim. App. 1996) (en banc). The reviewing court must assume that the fact finder resolved the conflicts, including conflicting inferences, in favor of the verdict, and must defer to that resolution. Id.
We are mindful that a description of sexual contact is sufficient evidence from which a fact finder may infer the intent‑to‑gratify element of indecency with a child. See, e.g., McKenzie, 617 S.W.2d at 216; Brown v. State, 871 S.W.2d 852, 856 (Tex. App.BCorpus Christi 1994, pet. ref'd). The jury heard R.T.'s descriptions of sexual conduct and contact and heard Sauceda's denial. By its verdict, the jury rejected Sauceda's claim of innocence.
Viewing the evidence in the light most favorable to the verdict and in a neutral light, we conclude that any rational trier of fact could have found beyond a reasonable doubt the intent‑to‑gratify elements of indecency with a child. See Jackson, 443 U.S. at 319; see also Johnson, 23 S.W.3d at 7; Zuniga, 144 S.W.3d at 484‑85. Viewing the evidence in the light most favorable to the verdict, we conclude that any rational trier of fact could have found beyond a reasonable doubt that Sauceda engaged in sexual contact with R.T. by touching her sexual organ, by forcing her to touch his sexual organ, and by digital penetration. See Jackson, 443 U.S. at 319; Malik, 953 S.W.2d at 240. Furthermore, viewing all of the evidence in a neutral light, we conclude that the evidence supporting the verdict is not too weak to support the jury's finding of guilt beyond a reasonable doubt; nor is the weight of the evidence contrary to the verdict strong enough that the State could not have met its burden of proof. Zuniga, 144 S.W.3d at 484‑85.
III. CONCLUSION
Thus, we conclude the evidence was legally and factually sufficient to sustain Sauceda's convictions for indecency with a child and aggravated sexual assault as alleged in Counts 1, 2, and 3 of the indictment. We overrule Sauceda's sole issue presented.
ERRLINDA CASTILLO
Justice
Do not publish.
Tex. R. App. P. 47.2(b).
Memorandum Opinion delivered and filed
this 28th day of July, 2005.
[1] See Tex. R. App. P. 47.2, 47.4.
[2] See Act of May 29, 1993, 73rd Leg., R.S., ch. 900, ' 1.01, 1993 Tex. Gen. Laws 3586, 3616, amended by Act of May 23, 2001, 77th Leg., R.S., ch. 739, 2001 Tex. Gen. Laws 1463, 1463 (current version at Tex. Pen. Code Ann. ' 21.11(a)(1) (Vernon 2003)).
[3] See Act of June 7, 1995, 74th Leg., R.S., ch. 318, ' 7, 1995 Tex. Gen. Laws 2734, 2737 amended by Act of June 20, 1997, 75th Leg, R.S., ch. 1286, ' 2, 1997 Tex. Gen. Laws 4911, 4111-12, amended by Act of May 26, 1999, 76th Leg., R.S., ch. 417, ' 2, 1999 Tex. Gen. Laws 2752, 2752-53, amended by Act of May 15, 2001, 77th Leg., R.S., ch. 459, ' 5 2001 Tex. Gen. Laws 893, 898-99 (current version at Tex. Pen. Code Ann. ' 22.021 (Vernon Supp. 2004‑05)).
[4] R.T.'s testimony included incidences of contact between her sexual organ and Sauceda's hand, including digital penetration, and contact between her mouth and his sexual organ, in the nature of forced kissing. On cross‑examination, she testified as to the indicted offenses pertaining to contact and conduct against her. R.T. testified she was not married to Sauceda.
[5] Moreover, where the record establishes numerous sexual contacts between an accused and a victim, a jury rationally may infer that an offense was committed "on or about" a particular date without the benefit of a jury instruction on the definition of "on or about." Mireles v. State, 901 S.W.2d 458, 459 (Tex. Crim. App. 1995) (en banc); see also Hoffman v. State, 922 S.W.2d 663, 672 (Tex. App.BWaco 1996, pet. ref'd).