IN THE
TENTH COURT OF APPEALS
No. 10-15-00168-CR
ERIC MOSQUEDA,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 54th District Court
McLennan County, Texas
Trial Court No. 2013-1757-C2
MEMORANDUM OPINION
Eric Mosqueda appeals from convictions for one count of aggravated sexual
assault of a child under the age of fourteen, two counts of sexual assault of a child, and
three counts of indecency with a child by contact. TEX. PEN. CODE ANN. §§ 21.11, 22.021
(West 2011). Mosqueda complains that the evidence was insufficient on all six counts
due to the evidence being in "equipoise," was insufficient as to the aggravated sexual
assault and the three indecency counts that occurred in 2006, that there was a material
variance rendering the evidence insufficient as to one of the indecency charges, that the
jury charge's instruction regarding jury unanimity was insufficient, and that the trial
court abused its discretion by refusing to admit evidence. Because we find no reversible
error, we affirm the judgments of the trial court.
SUFFICIENCY OF THE EVIDENCE
In issues one through six, Mosqueda complains that the evidence was insufficient
for the jury to have found him guilty of all six counts beyond a reasonable doubt because
there was evidence that the victim may have falsely accused Mosqueda, which he
contends showed the "equal probability of innocence."
Standard of Review
The Court of Criminal Appeals has expressed our standard of review of a
sufficiency issue as follows:
In determining whether the evidence is legally sufficient to support a
conviction, a reviewing court must consider all of the evidence in the light
most favorable to the verdict and determine whether, based on that
evidence and reasonable inferences therefrom, a rational fact finder could
have found the essential elements of the crime beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Hooper v. State, 214 S.W.3d 9,
13 (Tex. Crim. App. 2007). This “familiar standard gives full play to the
responsibility of the trier of fact fairly to resolve conflicts in the testimony,
to weigh the evidence, and to draw reasonable inferences from basic facts
to ultimate facts.” Jackson, 443 U.S. at 319. “Each fact need not point directly
and independently to the guilt of the appellant, as long as the cumulative
force of all the incriminating circumstances is sufficient to support the
conviction.” Hooper, 214 S.W.3d at 13.
Lucio v. State, 351 S.W.3d 878, 894 (Tex. Crim. App. 2011).
The Court of Criminal Appeals has also explained that our review of “all of the
Mosqueda v. State Page 2
evidence” includes evidence that was properly and improperly admitted. Conner v. State,
67 S.W.3d 192, 197 (Tex. Crim. App. 2001). And if the record supports conflicting
inferences, we must presume that the factfinder resolved the conflicts in favor of the
prosecution and therefore defer to that determination. Jackson v. Virginia, 443 U.S. at 326.
Further, direct and circumstantial evidence are treated equally: “Circumstantial evidence
is as probative as direct evidence in establishing the guilt of an actor, and circumstantial
evidence alone can be sufficient to establish guilt.” Hooper v. State, 214 S.W.3d at 13.
Finally, it is well established that the factfinder is entitled to judge the credibility of
witnesses and can choose to believe all, some, or none of the testimony presented by the
parties. Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991).
A conviction for aggravated sexual assault of a child is "supportable on the
uncorroborated testimony of the victim of the sexual offense." TEX. CODE CRIM. PROC.
ANN. art. 38.07(a); Martinez v. State, 178 S.W.3d 806, 814 (Tex. Crim. App. 2005) (noting
that article 38.07 "deals with the sufficiency of evidence required to sustain a conviction
for" certain sexual offenses) (emphasis in original). The State has no burden to produce
any corroborating or physical evidence. Martines v. State, 371 S.W.3d 232, 240 (Tex.
App.—Houston [1st Dist.] 2011, no pet.); see also Lee v. State, 176 S.W.3d 452, 458 (Tex.
App.—Houston [1st Dist.] 2004) ("The lack of physical or forensic evidence is a factor for
the jury to consider in weighing the evidence."), aff'd, 206 S.W.3d 620 (Tex. Crim. App.
2006).
Mosqueda v. State Page 3
FACTS
Mosqueda is married to the victim's mother. The victim testified that the first
incident between Mosqueda and her occurred in 2006 when she was in the sixth grade.
According to the victim, Mosqueda and the victim were lying on a couch together when
Mosqueda touched her breast on the outside and asked her bra size. Mosqueda then
kissed her and told her she was a pretty good kisser for her age. This constituted the
basis for count VI, which was indecency with a child by contact by touching the breast of
the victim, a child under the age of 17, with Mosqueda's hand.
The second incident took place approximately one month after the first incident in
2006 when Mosqueda and the victim were watching television while sitting on two
recliners and smoking marijuana together. Mosqueda pulled the victim onto his recliner,
kissed her and rubbed her breasts. Mosqueda and the victim moved to the sofa, where
Mosqueda got on top of the victim and began "dry humping" her. They moved back to
one of the recliners and the victim rubbed Mosqueda's penis over his clothing. Mosqueda
then pulled out his penis and the victim started kissing it until they were discovered by
the victim's mother. After this incident, the victim was sent to Amarillo to live with her
father. The second incident formed the basis for counts I, IV, and V of the indictment.
Count one alleged that Mosqueda intentionally or knowingly caused the victim's mouth
to contact his sexual organ. Count IV alleged that Mosqueda committed the offense of
indecency by contact by touching the victim's breast. Count V alleged that Mosqueda
Mosqueda v. State Page 4
committed indecency by causing the victim to engage in sexual contact with him by
causing her to touch his genitals with her hand.
The third incident took place in 2013 when the victim was sixteen years old and
back residing with her mother and Mosqueda. The victim testified that she stayed home
from school one day due to back pain. Mosqueda gave her a massage that day and pulled
her on top of him. While the victim was straddling Mosqueda, the victim stated that
Mosqueda ran his hands up her legs under her shorts and stuck both of his thumbs inside
of her vagina. This incident constituted the basis for count II, which alleged that
Mosqueda intentionally or knowingly caused the penetration of the victim's sexual organ
with a finger or thumb.
The fourth incident took place a short time later when the victim had been
grounded by her mother for running away. Her bedroom window had been boarded
shut and the door into her bedroom had been removed. The victim had been sleeping
with her mother and Mosqueda at night for one to two weeks, lying either on her mother's
side or in between her mother and Mosqueda. One night when she and her mother were
sleeping in the bed, Mosqueda came in and began rubbing and pulling on her leg.
Mosqueda started alternating touching her in her vagina and rubbing on his penis under
his clothing. The victim scooted closer to her mother and the touching stopped.
There was evidence presented that the victim had made an outcry of sexual abuse
against her adoptive father in 2005, which she later recanted in a written affidavit. The
Mosqueda v. State Page 5
prosecution against her father was put on hold for a time but resumed when the victim's
stepbrother made a similar allegation against her adoptive father as well in 2009. The
victim's father committed suicide shortly before trial in 2009. The victim stated that the
affidavit where she recanted her outcry was false and that she was coerced into signing
it by her mother.
In 2006, a psychological evaluation of the victim was completed by Dr. William
Carter. Carter testified at trial regarding the victim's psychological history as it was
reported to him and testified in general regarding child victims of sexual assault. At the
time of her evaluation, the victim was ten years old and was considered to be deceitful
and vindictive by her family. Dr. Carter found that she could have the potential for
deceptiveness, was overly sexualized for a child her age, and stated that she said that her
mother and adoptive father were getting divorced because the victim had lied.
The victim's mother did not believe any of the victim's allegations. The mother
testified that she saw the victim sitting on Mosqueda's lap and got very upset in 2006 but
not that his pants were undone. The mother testified that she knew that Mosqueda
smoked marijuana and knew of one occasion when he had smoked it with the victim.
The mother testified that the victim had started acting out sexually when she was
approximately eight years old, which continued throughout her teenage years. The
mother admitted that the victim had told her about a dream where the victim was
touched inappropriately by Mosqueda, which was what the victim had testified to telling
Mosqueda v. State Page 6
her mother the night that the fourth incident occurred in 2013. The mother had been
indicted for injury to a child based on her knowledge of and failure to prevent the sexual
conduct by Mosqueda, which was still pending at the time of trial.
The victim did not tell anyone of the incidents in 2006 until a forensic interview
was conducted regarding the 2013 incidents, even though she had spoken to a
psychologist, therapist, police officers, and an employee of the district attorney's office in
the time following when the 2006 incidents occurred. The victim had given a written
statement to law enforcement regarding the 2013 offenses, and Mosqueda attempted to
show that there were discrepancies between that statement and her testimony at trial
regarding whether there was wrestling involved between them in the first 2013 incident
or in what position she was sleeping in the second 2013 incident in an effort to cast doubt
on the veracity of her allegations.
Mosqueda contends that the evidence was in "equipoise" as to whether or not the
offenses occurred because of Dr. Carter's testimony, the delayed outcry of the 2006
offenses, and because of inconsistencies in her statements to police regarding the 2013
offenses. However, because a child victim's testimony standing alone is sufficient for a
jury to find a defendant guilty of a sexual offense, and any inconsistencies in the
testimony are resolved by the jury's determinations regarding the credibility of the
witnesses, Mosqueda's argument regarding "equipoise" is not the appropriate standard
for our review, which is largely a request to view the evidence in a neutral light and to
Mosqueda v. State Page 7
not consider as determinative the jury's determinations regarding credibility of the
witnesses and which testimony it believed. These standards relate to a review of the
factual sufficiency of the evidence, which was eliminated in criminal proceedings in
Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010).
Viewing the evidence in the light most favorable to the verdict, we find that the
evidence was sufficient for the jury to have found that Mosqueda was guilty of all six
counts beyond a reasonable doubt. We overrule issues one, two, three, four, five, and six.
In issues seven through ten, Mosqueda complains that the evidence was
insufficient for the jury to have found that he committed any of the offenses from 2006
because there was no corroboration of the victim's testimony or of her mother's
testimony. However, as set forth above, a conviction for aggravated sexual assault of a
child is "supportable on the uncorroborated testimony of the victim of the sexual offense."
TEX. CODE CRIM. PROC. ANN. art. 38.07(a). Additionally, the State has no burden to
produce any corroborating or physical evidence. Martines v. State, 371 S.W.3d 232, 240
(Tex. App.—Houston [1st Dist.] 2011, no pet.). Because of this, Mosqueda's complaints
regarding the lack of corroboration of the victim's testimony are overruled. We overrule
issues seven, eight, nine, and ten.
In issue eleven, Mosqueda complains that the evidence is insufficient for the jury
to have found that he touched the victim's breast with anything other than his hand.
Therefore, Mosqueda argues that he cannot be found guilty of count IV of the indictment,
Mosqueda v. State Page 8
which alleged that he committed the offense of indecency with a child by touching her
breast, because he was found guilty of count VI of the indictment which alleged that he
committed the offense of indecency with a child by touching her breast with his hand and
both counts were alleged to have been committed on the same date in 2006 in the
indictment.
Mosqueda argues that because the allegations in count VI specifically mention use
of his hand in touching the victim's breast but did not mention how the touching of the
breast occurred in count IV, the State "effectively alleged in Count IV that [Mosqueda]
touched the [victim's] breast in some manner other than by using his hand." Mosqueda
contends that there was insufficient evidence of a touching of the breast by any other
means which creates a variance between the indictment and the proof at trial.
"A 'variance' occurs when there is a discrepancy between the allegations in the
indictment and the proof presented at trial.” Gollihar v. State, 46 S.W.3d 243, 246 (Tex.
Crim. App. 2001). In a case where a variance is raised, "the State has proven the defendant
guilty of a crime, but has proven its commission in a manner that varies from the
allegations in the [indictment]." Id. Such a variance may render the evidence insufficient
to sustain the conviction. Id. at 247.
When the reviewing court is faced with a sufficiency of the evidence claim based
upon a variance between the indictment and the proof, only a material variance will
render the evidence insufficient and require reversal. Id. at 257. In Gollihar, the court
Mosqueda v. State Page 9
adopted the materiality test applied in the Fifth Circuit. Id. Under that test, a variance
between the wording of an indictment and the evidence presented at trial constitutes a
"fatal variance" mandating reversal only if it is material and prejudices the defendant's
substantial rights. Id. When reviewing such a variance, we must determine whether the
indictment, as written, informed the defendant of the charge against him sufficiently to
allow him to prepare an adequate defense at trial, and whether prosecution under the
deficiently drafted indictment would subject the defendant to the risk of being
prosecuted later for the same crime. Id.
The elements to the offense of indecency with a child by contact relevant to count
IV is that "a person commits an offense if, with a child younger than 17 years of age,
whether the child is of the same or opposite sex, the person engages in sexual contact
with the child or causes the child to engage in sexual contact." TEX. PENAL CODE ANN. §
21.11(a)(1). In relevant part, “sexual contact” is defined as "the following acts, if
committed with the intent to arouse or gratify the sexual desire of any person: any
touching by a person, including touching through clothing, of the anus, breast, or any
part of the genitals of a child." TEX. PENAL CODE ANN. § 21.11(c)(1). The indictment
regarding count IV was not erroneous because it did not state how the touching occurred
and Mosqueda does not argue that the indictment was erroneous or should have been
more specific. Therefore, any failure to include specifically how the touching occurred is
not before us.
Mosqueda v. State Page 10
We disagree with Mosqueda's contention that count IV required touching of the
breast by any means other than his hand. The evidence at trial clearly set forth two
discrete incidents of Mosqueda's touching of the victim's breast in 2006. We do not find
that there was a variance between the indictment and the proof at trial that would render
the evidence insufficient as to count IV. We have previously determined that the
evidence was otherwise sufficient to support the convictions for count IV. We overrule
issue eleven.
JURY CHARGE ERROR
In issues twelve and thirteen, Mosqueda complains that the jury charge was
erroneous regarding the instructions provided regarding jury unanimity relating to
counts IV and VI. Mosqueda contends that because one count alleged touching by his
hand and the other merely alleged touching, the jury charge allowed for him to be
convicted on a less than unanimous verdict as to the specific incident of criminal conduct.
A jury must reach a unanimous verdict about the specific crime the defendant
committed. See U.S. CONST. amends. V, XIV; TEX. CONST. art. V, § 13; TEX. CODE CRIM.
PROC. ANN. art. 36.29(a) (West Supp. 2013); Cosio v. State, 353 S.W.3d 766, 771 (Tex. Crim.
App. 2011); Landrian v. State, 268 S.W.3d 532, 535 (Tex. Crim. App. 2008). "[T]he jury must
'agree upon a single and discrete incident that would constitute the commission of the
offense alleged.'" Cosio, 353 S.W.3d at 771 (quoting Stuhler v. State, 218 S.W.3d 706, 717
(Tex. Crim. App. 2007)). "[N]on-unanimity may occur when the State charges one offense
Mosqueda v. State Page 11
and presents evidence that the defendant committed the charged offense on multiple but
separate occasions." Id. at 772.
When evidence is presented regarding multiple incidents, which would
individually establish different offenses, the "[court's] charge, to ensure unanimity,
would need to instruct the jury that its verdict must be unanimous as to a single offense
or unit of prosecution among those presented." Id.; accord Ngo v. State, 175 S.W.3d 738,
748-49 (Tex. Crim. App. 2005). Because the burden rests on the court to instruct the jury
as to the law applicable to the case, the trial court must submit a charge to the jury that
"does not allow for the possibility of a non-unanimous verdict." Cosio, 353 S.W.3d at 776.
We first determine if error occurred and, "if we find error, we analyze that error for harm."
Ngo, 175 S.W.3d at 743 (citing Middleton v. State, 125 S.W.3d 450, 453 (Tex. Crim. App.
2003)). If there was error, and the appellant objected to the error at trial, reversal is
required when the error is "calculated to injure the rights of the defendant;" defined to
mean that there is "some harm." Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App.
1985). If, as in this case, the error was not objected to, reversal is only required if the harm
was so egregious and created such harm that the defendant "has not had a fair and
impartial trial." Id. at 172 (quoting Ross v. State, 487 S.W.2d 744, 745 (Tex. Crim. App.
1972)); see also Warner v. State, 245 S.W.3d 458, 461 (Tex. Crim. App. 2008) ("The failure to
preserve jury-charge error is not a bar to appellate review, but rather it establishes the
degree of harm necessary for reversal.").
Mosqueda v. State Page 12
The jury charge contained the following instruction:
In this case, you may have heard evidence alleging multiple incidents of
criminal conduct, if any, which may, individually, form the basis of a
conviction for the same count. You are instructed that you must agree
unanimously on which incident, if any, forms the basis for your conviction
under a particular count as alleged in the indictment.
Mosqueda contends that the instruction was not sufficient because it did not
explain that the jury was "required to disregard the sameness as to the way of committing
the offense and as to the date of the offense" and because there was no instruction that
"touch with hand" and "touch" did not mean the same thing. Further, Mosqueda argues
that the instruction should have been submitted in tandem with the application
paragraphs and that these failures all caused egregious harm to Mosqueda.
Because Mosqueda did not object to the jury charge on this basis, even if we
assume without deciding that the jury charge was erroneous, we do not find that
Mosqueda was egregiously harmed. We have reviewed the entire jury charge, the state
of the evidence, including the contested issues and the weight of the probative evidence,
the arguments of counsel, and the trial as a whole in conducting a harm analysis as
required by Almanza and its progeny. See Warner v. State, 254 S.W.3d 458, 461 (Tex. Crim.
App. 2008).
The victim testified to two separate incidents where Mosqueda touched her breast
in 2006. There was no other evidence regarding touching of her breast by any means
other than by Mosqueda's hand or on other dates in 2006. The State's closing argument
Mosqueda v. State Page 13
described the two separate incidents of touching the victim's breast in 2006 that were
testified to by the victim. Mosqueda argued in closing that none of the incidents occurred
and that the victim was lying.
Because we find that Mosqueda was not egregiously harmed by the error in the
jury charge, if any, we overrule issues twelve and thirteen.
ADMISSION OF EVIDENCE
In issues fourteen and fifteen, Mosqueda complains that the trial court abused its
discretion by sustaining the State's hearsay objections to photographs and testimony
regarding writings on the victim's mirror in her bedroom. The photographs show the
mirror with the phrases "Heartbreaker (<13)," "Lie Now Die Later," "Smile Now I Lov3
You Fuck Now," and "Sex = Power." Mosqueda argues that the photographs depicting
these phrases that were written on the mirror by the victim and the victim's testimony
about the phrases was not hearsay or should have been admitted as an exception to the
hearsay rule regarding her state of mind and motive for bias. See TEX. R. EVID. 803(3).
Mosqueda offered the photographs into evidence during the testimony of the
victim's mother. The State objected to the admission of the photographs as containing
hearsay. Mosqueda later attempted to question the victim about the writings when she
was recalled to testify, and the State objected again. The trial court sustained both
objections. Mosqueda did not make any other offer of proof regarding the photographs
or what the testimony would have been other than the specific phrases that were depicted
Mosqueda v. State Page 14
in the photographs.
Even if we assume without deciding that the trial court should have overruled the
State's objections and admitted the photographs into evidence, we must disregard any
nonconstitutional error that does not affect a substantial right of Mosqueda. TEX. R. APP.
P. 44.2(b). A substantial right is affected when the error has a substantial and injurious
effect or influence in determining the jury's verdict. Johnson v. State, 43 S.W.3d 1, 4 (Tex.
Crim. App. 2001). There was no evidence presented regarding when the photographs
were taken and no offer of proof was made regarding what testimony Mosqueda sought
to elicit from the victim upon questioning her about the writings. We do not find that the
exclusion of the phrases in the photographs, standing alone, constituted reversible error.
Therefore, the error, if any, was harmless. We overrule issues fourteen and fifteen.
CONCLUSION
Having found no reversible error, we affirm the judgments of the trial court.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed August 17, 2016
Do not publish
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