Opinion issued March 8, 2012
In The
Court of Appeals
For The
First District of Texas
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NO. 01-11-00186-CR
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pablo mendoza martinez, Appellant
V.
The State of Texas, Appellee
On Appeal from the 174th Judicial District Court
Harris County, Texas
Trial Court Case No. 1190504
MEMORANDUM OPINION
A jury found appellant, Pablo Mendoza Martinez, guilty of the offense of aggravated sexual assault of a child,[1] and the trial court assessed his punishment at confinement for sixty years. In his sole point of error, appellant contends that the trial court erred in submitting a jury charge that denied him a unanimous verdict.
We affirm.
Background
A Harris County Grand Jury issued a true bill of indictment, accusing appellant of the felony offense of aggravated sexual assault of a child and alleging that “on or about November 14, 2006,” appellant unlawfully, intentionally, and knowingly caused the penetration of the female sexual organ of the complainant, who was a person younger than fourteen years of age, by placing his finger in the complainant’s sexual organ.
Prior to trial, appellant filed a Motion to Require the State to Elect a Specific Act. In this motion, appellant requested that the trial court order the State to designate “which specific act of sexual intercourse or contact it will rely upon for conviction.”[2] At a hearing prior to trial, appellant again asked for a ruling on his motion and the following discussion took place:
[State]: Judge, we do have a specific act in mind that we will be talking about. It’s a digital penetration with the—by the defendant, of course with the complainant. And I think it will be clear which act is the act for our case-in-chief. In fact, just so we’re sure, I will make a note on the record when we get there with the complainant, and just say: Now let’s talk about our case-in-chief, if that helps you out.
[Appellant]: With the understanding that that entry in the record constitutes your election, we don’t have a problem with that.
[State]: That’s fine.
[Appellant]: As long as the record is clear.
[State]: And if it’s unclear, if we can just approach the bench and talk about it at that point.
[Appellant]: We’ll do that.
[Trial court]: Agreed.
Subsequently, during the complainant’s trial testimony, the State, in accord with its pretrial agreement, announced that it was presenting evidence pertaining to its case-in-chief—the November 14, 2006 incident of sexual assault committed in Harris County by appellant against the complainant. Appellant did not object to the State’s election.
After the conclusion of the presentation of evidence and during the charge conference, appellant made two specific objections to the jury charge. In his first complaint, appellant acknowledged that the State had “apparently” made its election upon which specific act it was seeking a conviction, but appellant contended that, by use of the language “on or about” in the jury charge, the application paragraph did not limit the State to “the exact date pled in the indictment.” In his second complaint, appellant objected to the trial court’s instruction concerning the statute of limitations. Appellant tendered a charge that omitted the “on or about” language and the statute of limitations instruction. Appellant asserted that his tendered charge reflected the “proper way to hold the jury to [the State’s] election pursuant to Phillips.”[3]
The State responded,
The on or about language is a statutory instruction in an effort to allow the State to prove up their case within the statute of limitations. In these child sexual abuse cases, Your Honor, it’s difficult for children to pinpoint dates and the Legislature has constructed a statute of limitations in those cases at a 10-year period.
And so, going with the jury charge that [appellant’s counsel] has provided would prevent a jury from finding and allowing the event to have occurred within that 10-year period which is within the statute of limitations that we have proved. And as he concedes, there really is no case law to support his stance on this.
. . . .
As far as our election goes, what we’ve—what the indictment alleges is the on or about language. That is actually in the indictment. In addition to that, we alleged the penetration of the female sexual organ. And she testified to one event where her female sexual organ was penetrated. And just as we had agreed to in pretrial motions, I made on the record a mark and said: And now let’s talk about our case-in-chief. So, I don’t think that there’s really any doubt as to what offense we are going on.
The trial court overruled appellant’s objections and submitted the following application paragraph:
Now, if you find from the evidence beyond a reasonable doubt that on or about the 14th day of November, 2006, in Harris County, Texas, the defendant, Pablo Mendoza Martinez, did then and there unlawfully, intentionally or knowingly cause the penetration of the female sexual organ of [R.F.], a person younger than fourteen years of age and not the spouse of the defendant, by placing his finger in the female sexual organ of [R.F.], then you will find the defendant guilty of aggravated sexual assault of a child, as charged in the indictment.
The trial court also submitted the following instruction concerning the statute of limitations:
You are further instructed that the State is not bound by the specific date which the offense, if any, is alleged in the indictment to have been committed, but that a conviction may be had upon proof beyond a reasonable doubt that the offense, if any, was committed at any time within the period of limitations. The limitation period applicable to the offense of aggravated sexual assault of a child is ten years from the date of the 18th birthday of the victim of the offense.
Additionally, the trial court instructed the jury that if there was any evidence regarding appellant’s commission of offenses “other than the offense alleged,” it could not consider such evidence for any purpose unless it found beyond a reasonable doubt that the defendant committed such other offenses and, then, it could only consider other offenses for limited purposes. Finally, the trial court instructed the jury that it could certify the verdict only once it had reached a unanimous agreement.
Jury Charge
In his sole point of error, appellant argues that the trial court erred in submitting a jury charge that “served to deny [him] his right to a unanimous verdict” because it included “on or about” language and a statute of limitations instruction. Appellant asserts that the statute of limitations instruction “served to undo any clarification created” by the State’s election and it “effectively granted the jury carte blanche to use any of the alleged acts of sexual abuse presented [by the State] over the course of the trial to convict.”
We review jury charge error by considering whether (1) error exists in the charge and (2) if so, whether sufficient harm resulted from the error to require reversal. Ngo v. State, 175 S.W.3d 738, 744 (Tex. Crim. App. 2005). Jury unanimity is required in all criminal cases. Ngo, 175 S.W.3d at 745. Each and every juror must agree that a defendant committed the same, single, specific criminal act. Id. Non-unanimity may result “when the jury charge fails to properly instruct the jury, based on the indicted offense(s) and specific evidence in the case, that its verdict must be unanimous.” Cosio v. State, 353 S.W.3d 766, 771 (Tex. Crim. App. 2011).
The Texas Court of Criminal Appeals has identified three “variations that may result in non-unanimous verdicts as to a particular incident of criminal conduct”: (1) when the State presents evidence demonstrating the repetition of the same criminal conduct, but the actual results of the conduct differed; (2) when the State charges one offense and presents evidence that the defendant committed the charged offense on multiple but separate occasions, and (3) when the State charges one offense and then presents evidence of an offense, committed at a different time, that demonstrates the violation of a different provision of the same criminal statute. Id. at 771–72.
This case does not present any of the above opportunities for non-unanimity. First, the State made an election to proceed on a specific incident of sexual assault. See Phillips v. State, 193 S.W.3d 904, 913 (Tex. Crim. App. 2006) (holding that, upon timely request at the close of State’s case, State is required to elect as to which specific incident of sexual assault it will use to convict). During trial, in accord with its pretrial agreement, the State clearly identified its case in chief as concerning the November 14, 2006 assault.
Second, the grand jury, in its indictment, accused appellant only of committing the single offense on November 14, 2006. Moreover, the indictment contains the specific allegation that appellant had assaulted the complainant by causing the penetration of the complainant’s sexual organ with his finger.[4]
Third, the State presented specific evidence of only a single instance when appellant assaulted the complainant in the manner described in the indictment and jury charge. This single instance occurred on November 14, 2006, and there is no evidence that the complainant was assaulted in the manner described at another time during or near November 2006. Although there is evidence that appellant had forced the complainant to touch his genitals on prior occasions and appellant had placed his hand in the complainant’s pants on one prior occasion, the only direct evidence supporting the allegation that appellant had penetrated the complainant’s sexual organ with his finger “on or about November 14, 2006” was the complainant’s testimony concerning the offense on November 14, 2006.[5]
Fourth, in accord with the indictment and the State’s election, the jury was specifically charged that it could only find appellant guilty if it found that appellant, “on or about” November 14, 2006, had sexually assaulted the complainant by causing the penetration of her female sexual organ by placing his finger in her sexual organ.
In regard to appellant’s complaint concerning the “on or about” language in the charge, the court of criminal appeals has held that it is not error to use “on or about” language in an indictment. Garcia v. State, 981 S.W.2d 683, 685–86 (Tex. Crim. App. 1998); see also Dixon v. State, 201 S.W.3d 731, 736 (Tex. Crim. App. 2006) (noting, in rejecting defendant’s notice complaint, that when young children are involved, “courts cannot impose unrealistic expectations regarding proof of when an offense actually occurred”). In the circumstances presented here, and based upon the language in the application paragraph in the charge and the evidence presented by the State, the use of “on or about” could not have created a unanimity problem.[6]
Finally, in regard to appellant’s complaint about the statute of limitations instruction, even if such an instruction could give rise to unanimity concerns in certain circumstances, the instruction, as given in this case, for the reasons we have described above, could not have created a unanimity problem. The State made a clear election upon which incident of assault it was seeking a conviction. And it presented specific and direct evidence of only one incident of sexual assault that occurred in the manner, location, and general time frame that was alleged in the indictment. Accordingly, we hold that the trial court did not submit to the jury a charge that deprived appellant of a unanimous verdict.
We overrule appellant’s sole point of error.
Conclusion
We affirm the judgment of the trial court.
Terry Jennings
Justice
Panel consists of Chief Justice Radack and Justices Jennings and Huddle.
Do not publish. Tex. R. App. P. 47.2(b).
[1] See Tex. Penal Code Ann. § 22.021 (Vernon 2011).
[2] See Phillips v. State, 193 S.W.3d 904, 910, 913 (Tex. Crim. App. 2006).
[3] See id.
[4] The indictment also contains a geographic limitation, i.e., Harris County, that would have excluded consideration of other evidence pertaining to appellant’s alleged conduct that occurred outside of the jurisdiction.
[5] A police officer testified in general regarding “two prior incidents in Harris County,” but the officer provided no additional details on the dates or specific nature of these incidents, and this evidence would not have permitted the jury to find appellant guilty. Appellant’s own daughter also testified in a way suggesting that she had independent reasons to believe the complainant’s allegations, but her testimony also would not have permitted the jury to find appellant guilty of the charged offense. Finally, the complainant testified generally concerning other incidents of sexual assault and inappropriate touching, but the only detailed testimony that she provided concerning an assault that occurred in the manner as described in the charge pertained to the assault on November 14, 2006.
We do not construe appellant’s brief as presenting a separate point of error concerning the admission of testimony pertaining to extraneous assaults.
[6] The Amarillo Court of Appeals has held that the use of “on or about” language can lead to unanimity problems in certain circumstances. See Demps v. State, 278 S.W.3d 62, 67 (Tex. App.—Amarillo 2009, pet. ref’d) (citations omitted) (acknowledging that State may present evidence or obtain conviction by proof of similar criminal acts that occurred “on or about” date alleged in indictment, but noting that “danger that a verdict will not be unanimous arises when a multitude of incidents are presented to the jury and the State is not required to elect”).