Opinion issued February 9, 2012
In The
Court of Appeals
For The
First District of Texas
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NOS. 01-10-00623-CR
01-10-00624-CR
01-10-00625-CR
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Luis Mariano Benitez, Appellant
V.
The State of Texas, Appellee
On Appeal from the 434th District Court
Fort Bend County, Texas
Trial Court Case Nos. 49844, 49876 & 52163
MEMORANDUM OPINION
A jury convicted appellant Luis Mariano Benitez of three separate offenses[1] of aggravated sexual assault,[2] and the court assessed his punishment at twenty-five years’ confinement for each offense, sentences to run concurrently.
In four issues, Benitez contends that (1) the evidence is legally and factually insufficient to support his convictions, (2) the trial court erred in convicting him of trial court case numbers 49844 and 49876 because no evidence was adduced at trial proving the days alleged in their respective indictments, (3) the trial court violated his double-jeopardy protections by convicting him of aggravated sexual assault when there was no evidence that any of the alleged sexual assaults involved aggravating circumstances, and (4) the trial court violated his right to equal protection when it sentenced him to twenty-five years in prison for each offense but placed another defendant on deferred adjudication for the same crime only a few months earlier.
We affirm.
Sufficiency of the Evidence
In his first issue, Benitez contends that the evidence is legally and factually insufficient to support all three of his convictions because he took the stand in his own defense, he emphatically denied the charges pending against him, and his testimony was “certainly more credible than his accuser[’s].”
In his second issue, Benitez contends that the trial court erred in convicting him of case numbers 49844 and 49876 because no evidence was adduced at trial proving the days alleged in the respective indictments. We construe this argument as a challenge to the sufficiency of the evidence supporting these two convictions, and we will address it as such.
Benitez’s third issue contends that his double-jeopardy protections were violated by convicting him of aggravated sexual assault absent evidence that any of the alleged sexual assaults involved aggravating circumstances. We construe this to be an argument that the evidence is insufficient because there is no evidence that any of the alleged sexual assaults involved aggravating circumstances.[3]
Standard of Review
Our review of evidentiary sufficiency requires that we examine all the evidence in the light most favorable to the verdict and decide whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Brooks v. State, 323 S.W.3d 893, 899, 901–02 (Tex. Crim. App. 2010) (plurality op.) (directing intermediate courts to apply standard of review enunciated in Jackson to all sufficiency challenges in criminal cases, regardless of whether defendant frames challenge as legal or factual). The jury is the sole judge of the witnesses’ credibility and the weight to be given their testimony. See Jackson, 443 U.S. at 326, 99 S. Ct. at 2793.
The sufficiency of the evidence is measured against a hypothetically correct jury charge. Cada v. State, 334 S.W.3d 766, 773 (Tex. Crim. App. 2011) (citing Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)). A hypothetically correct jury charge “accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s theories of liability, and adequately describes the particular offense for which the defendant was tried.” Id. (quoting Malik, 953 S.W.2d at 240).
Under a hypothetically correct jury charge, the State was required to prove that Benitez intentionally or knowingly caused the contact or penetration of the complainant’s sexual organ with his sexual organ when the complainant was younger than fourteen years of age. See Tex. Penal Code Ann. § 22.021(a)(1)(B)(i),(2)(B) (West 2011).
Trial Court Case Number 49844
A conviction was authorized in this case if the jury found beyond a reasonable doubt that, on or about November 1, 2007, Benitez caused the sexual organ of M.V., a child younger than fourteen years of age to contact Benitez’s mouth.
M.V. testified that he was thirteen years old at the time of trial on April 7, 2010. He also testified that in November 2007, when he was eleven, he was on the telephone with a friend when Benitez walked into his room, “kneeled beside me because I was laying down on the bed and he pulled down my pants . . . grabbed my penis and then he started sucking my penis and I just got off the phone and I told my friend I had to do something.” Benitez, who testified on his own behalf, denied ever sexually assaulting M.V.
Benitez contends that the evidence is insufficient to support his conviction because there is no evidence that the alleged sexual assault involved any aggravating circumstances, citing to State v. Blount, 542 S.W.2d 164, 165–66 (Tex. Crim. App. 1976) and State v. Douglas, 740 S.W.2d 890, 891 (Tex. App.—El Paso 1987, no pet.). Benitez’s reliance upon the cases, however, is misplaced as neither of those cases involve the portion of the Penal Code at issue in this case, section 22.021(a)(2)(B), which prohibits the aggravated sexual assault of a child under the age of fourteen. See Douglas, 740 S.W.2d at 892 (complainant was sixty-six-year-old widow); Blount, 542 S.W.2d at 165–66 (complainant was adult female). Importantly, unlike section 22.021(a)(2)(A)—which requires, inter alia, the use or exhibition of a deadly weapon, infliction of serious bodily harm, or placing one in fear of death or imminent bodily harm in order to elevate a simple sexual assault to aggravated sexual assault—section 22.021(a)(2)(B) clearly recites that a sexual assault is aggravated if “the victim is younger than 14 years of age.” Compare Tex. Penal Code Ann. § 22.021(a)(2)(A) with Tex. Penal Code Ann. § 22.021(a)(2)(B). Contrary to Benitez’s assertion, the present case does not require the State to prove “aggravated circumstances” under the hypothetically correct jury charge, only that M.V. was younger than fourteen when each assault occurred. See Tex. Penal Code Ann. § 22.021(a)(2)(B).
Benitez also contends that the evidence in case 49844 is insufficient because there was no evidence that the sexual assault occurred “on or about November 1, 2007,” as the indictment alleged. It is, however, well-settled that “when an indictment alleges that an offense occurred ‘on or about’ a particular date, the State is not bound by the date alleged” and may prove any offense of the character alleged, so long as the act occurred before the date of the presentation of the indictment, but within the relevant limitations period. See Garcia v. State, 981 S.W.2d 683, 685 (Tex. Crim. App. 1998) (citing Sledge v. State, 953 S.W.2d 253, 255–56 (Tex. Crim. App. 1997)); see also Thomas v. State, 753 S.W.2d 688, 693 (Tex. Crim. App. 1988) (“[W]here an indictment alleges that some relevant event transpired ‘on or about’ a particular date, the accused is put on notice to prepare for proof that the event happened at any time within the statutory period of limitations.”). The indictment in this case was filed on August 4, 2008. The offense of aggravated sexual assault of a child has no period of limitations.[4] Although he could not recall specific dates, M.V. testified that Benitez sexually assaulted him in November 2007.
Viewing the evidence in the light most favorable to the verdict, any rational finder of fact could find that, on or about November 1, 2007, Benitez intentionally or knowingly committed the elements of this offense.[5] Although Benitez denied abusing M.V., M.V. testified that Benitez did so, and it was the sole province of the jury to resolve any conflicts in the evidence. See Schmidt v. State, 232 S.W.3d 66, 68 (Tex. Crim. App. 2007) (“It is the sole province of the jury to weigh the credibility of the witnesses and testimony.”); see also Jones v. State, 984 S.W.2d 254, 258 (Tex. Crim. App. 1998) (stating that jury may believe or disbelieve all or part of any witness’s testimony).[6] We must assume that the jury resolved conflicts in favor of the verdict and must defer to that resolution. Matchett v. State, 941 S.W.2d 922, 936 (Tex. Crim. App. 1996) (en banc).
Having reviewed all of the evidence under the appropriate standard of review, we conclude that the evidence is sufficient to support Benitez’s conviction in case number 49844.
Trial Court Case Number 49876
In this case a conviction was authorized if the jury found beyond a reasonable doubt that, on or about April 30, 2008, Benitez intentionally or knowingly caused the contact or penetration of the mouth of M.V., a child younger than fourteen years of age, with Benitez’s sexual organ.[7]
M.V. testified that he told the caseworker who interviewed him in 2008 that in late April or early May of that year, Benitez came into his room while he was reading, “got in front of me and then he pulled his pants down, and then he—he grabbed my head and then he pushed me towards his penis.” Viewing the evidence in the light most favorable to the verdict, any rational finder of fact could find that, on or about April 30, 2008, Benitez committed the offense set forth in the indictment. See Garcia, 981 S.W.2d at 685 (stating that because State alleged offense occurred “on or about” certain date, State was not bound by date and only had to prove that assault occurred prior to presentation of indictment and within statute-of-limitations period); see also Tex. Penal Code Ann. § 22.021(a)(2)(B) (stating sexual assault is aggravated if “the victim is younger than 14 years of age”). Although Benitez and M.V. offered conflicting testimony, it was the sole province of the jury to resolve those conflicts in the evidence, and we must defer to the jury’s resolution. See Schmidt, 232 S.W.3d at 68.
Having reviewed all of the evidence under the appropriate standard of review, we conclude that the evidence is sufficient to support Benitez’s conviction in case number 49876.
Trial Court Case Number 52163
In this case a conviction was authorized if the jury found beyond a reasonable doubt that, on or about June 8, 2008, Benitez intentionally or knowingly caused the contact or penetration of the mouth of M.V., a child younger than fourteen years of age, with Benitez’s sexual organ.[8]
M.V. testified that, on June 8, 2008, the day the police came to his house, Benitez called him to his bedroom where he was lying on his bed and had his pants down. M.V. was instructed by Benitez to contact his sexual organ in a particular fashion such as to prompt M.V. to request that Benitez tell him before “his stuff came out” because he did not want it in his mouth. M.V. testified, “I was doing it and then his semen came out [in] my mouth and then I just went to spit it out in the sink.”
Viewing the evidence in the light most favorable to the verdict, any rational finder of fact could find that on or about June 8, 2008, Benitez intentionally or knowingly committed the offense for which he was indicted.
Although Benitez and M.V. offered conflicting testimony, it was the sole province of the jury to resolve those conflicts in the evidence, and we must defer to the jury’s resolution. See Schmidt, 232 S.W.3d at 68.
Having reviewed all of the evidence under the appropriate standard of review, we conclude that the evidence is sufficient to support Benitez’s conviction in case number 52163.
We overrule Benitez’s first, second, and third issues.
Equal Protection
In his fourth issue, Benitez contends that the trial court violated his right to equal protection when it sentenced him to twenty-five years’ confinement for each offense and sentenced another defendant to deferred adjudication for the same crime only a few months earlier. Benitez, however, does not cite to any legal authority in support of his position, or provide any legal analysis or record citations. Accordingly, Benitez’s fourth issue is inadequately briefed and we decline to address it. See Tex. R. App. P. 38.1(i); Cardenas v. State, 30 S.W.3d 384, 393 (Tex. Crim. App. 2000) (overruling points of error as inadequately briefed when appellant neglected to present argument and authorities as required by Texas Rule of Appellate Procedure 38.1(i)). We overrule Benitez’s fourth issue.
Conclusion
We affirm the judgments of the trial court.
Jim Sharp
Justice
Panel consists of Justices Keyes, Bland, and Sharp.
Do not publish. Tex. R. App. P. 47.2(b).
[1] Trial court case number 49844/appellate court case number 01-10-00623-CR (aggravated sexual assault of child less than fourteen years of age); trial court case number 49876/appellate court case number 01-10-00624-CR (same); and trial court case number 52163/appellate court case number 01-10-00625-CR (same).
[2] See Tex. Penal Code Ann. § 22.021(a)(1)(B)(ii), (iii), (v), (2)(B) (West 2011).
[3] Benitez also argues that because the State did not ask the jury to consider the lesser included offenses of sexual assault, it would violate his protection against double jeopardy if the State were allowed to do so upon reversal. Because we conclude that legally sufficient evidence supports the convictions, we need not address this challenge.
[4] Tex. Code Crim. Proc. Ann. art. 12.01(1)(B) (West Supp. 2011).
[5] Tex. Penal Code Ann. § 22.021 (a)(1)(B)(iii), (2)(B).
[6] M.V.’s testimony, standing alone, is sufficient to support Benitez’s conviction for aggravated sexual assault of a child. Tex. Code Crim. Proc. Ann. art. 38.07(b)(1) (West 2011); see Bryant v. State, 340 S.W.3d 1, 14 (Tex. App.—Houston [1st Dist.], 2010, pet. ref’d) (stating that testimony of victim, standing alone, even when victim is child, is sufficient to support conviction for sexual assault); Jensen v. State, 66 S.W.3d 528, 534 (Tex. App.—Houston [14th Dist.] 2002, pet. ref’d) (same).
[7] See Tex. Penal Code Ann. § 22.021 (a)(1)(B)(ii), (v),(2)(B).
[8] See Tex. Penal Code Ann. § 22.021 (a)(1)(B)(ii), (v),(2)(B).